Professional

VIVARES Cloud Services General Terms and Conditions

(last update: June 2021)

1. Scope of these General Terms and Conditions

1.1
These General Terms and Conditions (hereinafter referred to as "GTC") of LEDVANCE GmbH, with its registered office in 85748 Garching near Munich, Germany (hereinafter referred to as "LEDVANCE"), apply in the version applicable at the time of your order for all Contracts that you conclude with LEDVANCE regarding the VIVARES Cloud Services ("Cloud Services"). The Cloud Services are provided to you as a browser-based application. These GTC also apply to a free trial of the Cloud Services permitted by LEDVANCE. Other components and software belonging to a lighting installation, in particular hardware components, software for commissioning lighting installations and control software, are not subject to these GTC.

1.2 "Customer" for the purposes of these T&Cs shall mean the company designated on the online order form at www.ledvance.com/vivares-cloudservice. You confirm that you are authorized to make and receive legally binding declarations on behalf of Customer.

1.3 "Authorized User" within the meaning of these GTC is any natural person or legal entity registered to use the Cloud Services and authorized by Customer (see Clause 5.3).

1.4 By placing an order, you confirm that Customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code), i.e., that Customer is acting in the exercise of his commercial or independent professional activity. LEDVANCE may request proof of Customer's entrepreneurial status, e.g., the VAT identification number or other suitable proof, prior to conclusion of the Contract. The data required for the proof must be provided completely and truthfully.

1.5 By submitting your order, you acknowledge that you have read and understood these GTC in their entirety, and you accept and agree to be bound by all of the terms of these GTC, without limitation. If you do not wish to accept all of the terms and conditions of these GTC, you are not authorized to use the Cloud Services and must immediately discontinue use of the Cloud Services.

1.6 Contradictory, deviating or supplementary general terms and conditions of Customer do not become part of the Contract unless LEDVANCE expressly agrees to their validity. These GTC shall also apply if LEDVANCE performs services without reservation in the knowledge that Customer's terms and conditions conflict with or deviate from these GTC.

2. Service Description

2.1 LEDVANCE provides the Cloud Services to Customers and Authorized Users within the EMEA region as Software-as-a-Service. The Cloud Services provide an Energy Monitoring and Maintenance Assistant (EM/MA) that visualizes and analyzes operational data of lighting management systems. Statements and explanations by LEDVANCE regarding the Cloud Services in advertising materials, on websites as well as in the documentation are to be understood exclusively as a description of the quality and not as a guarantee or assurance of a property.

2.2 The operational data is collected by an IoT Gateway and periodically transmitted to a remote server. The update interval of the operational data from the IoT Gateway (hereinafter also referred to as "Controller Unit") to the remote server is one (1) hour (i.e. the update is not in real time). Customer is responsible for connecting the Controller Units to the Internet.

2.3 Compatible lighting devices (e.g. luminaires, sensors, switches and LED drivers) and Controller Units ("Compatible Products") are listed in the product catalog on the LEDVANCE website at https://www.ledvance.com/professional/products. Operational data of lighting devices connected to a Controller Unit must comply with the DiiA standard or the zigbee standard (3.0 or higher) to enable processing by the Cloud Services.

2.4 The Cloud Services enable the display of energy consumption and operating time of lighting devices according to the following criteria:

a) The Cloud Services display the energy consumption transmitted by the connected Controller Units and do not make their own consumption calculations. Energy savings are shown in comparison to reference values defined by Customer. Actual energy savings may differ from the energy savings displayed in the Cloud Services.

b) The display of remaining lifetimes is based solely on the reported operating time of the corresponding device compared to its standard lifetime specified by the manufacturer. The default thresholds used for the display of the system status (green/yellow/red) can be customized by Customer. The Cloud Services do not make any statements or forecasts about the specific time when the device will fail, do not provide any corresponding recommendations as to which actions need to be taken, and do not send any corresponding notifications.


2.5 LEDVANCE strives for an average availability of the Cloud Services of 97.5% per calendar month. The Cloud Services are considered "available" as long as Customers and Authorized Users can log in and use the Cloud Services as described above. The availability shall be measured at the exit router of the data center in which the Cloud Services are operated. For the calculation of availability, the following times and causes of malfunctions in particular shall not be taken into account:

a) Periods of unavailability due to Internet disruptions beyond LEDVANCE's control or other circumstances beyond LEDVANCE's control, including, but not limited to, natural disasters, war, acts of terrorism, civil unrest, government action, a third party network or equipment failure, epidemic or pandemic (such as Covid-19);

b) Malfunctions as a result of virus or hacker attacks, provided LEDVANCE has taken appropriate protective measures;

c) Periods of unavailability based on the fact that the necessary technical requirements to be created by Customer for the use of the Cloud Services are temporarily not given, for example in case of malfunctions of Customer's hardware;

d) Malfunctions resulting from the use of services or software not provided by LEDVANCE, including but not limited to, issues resulting from inadequate bandwidth or related to third party software or services;

e) Issues airing during the use of, or with respect to, preview, pre-release, beta or trial versions of the Cloud Services;

f) Disruptions resulting from unauthorized acts or omissions by Customer or its Authorized Users, employees, agents, contractors or suppliers or other third parties who gain access to the Cloud Services using Customer's passwords or devices, or otherwise resulting from Customer's failure to take reasonable security measures; or

g) Limitations of the availability or suspension of services effected by LEDVANCE due to suspected abusive behavior or default in payment.


2.6 Planned maintenance work is carried out outside working hours. Working hours are Monday through Friday from 9:00 a.m. to 4:00 p.m. CET, except for public holidays in Bavaria, Germany. The maximum duration of a single scheduled maintenance window is eight (8) hours. Whenever possible, LEDVANCE will perform other maintenance during periods of low usage or with minimal interruption.

2.7 Since the performance of the Cloud Services depends on many factors (for instance, the performance of the devices from which the Cloud Services are accessed or of the public telecommunications network), LEDVANCE does not commit to a minimum response time for the Cloud Services. LEDVANCE has implemented commercially reasonable, industry standard software architecture, patterns and methods to keep average response times low.

2.8 LEDVANCE is entitled to engage affiliated companies or third parties as subcontractors for the performance of the contract. In relation to Customer, LEDVANCE remains responsible for acts and omissions of subcontractors.

3. Conditions of Use and Obligations of Customer

3.1
Customer is responsible for creating and maintaining the technical requirements within its reach for the transmission of the operational data and for access to the Cloud Services, in particular with regard to the Compatible Products used, their connection to the Internet and a compatible and current browser software. LEDVANCE indicates on the website www.ledvance.com/professional/products/product-stories/vivares which browsers are currently supported.

3.2 Customer is responsible for regularly downloading and appropriately backing up the historical data made available via the Cloud Services if Customer has an interest in permanently storing such historical data. LEDVANCE shall have no custodial or safekeeping obligations with respect to the historical data.

3.3 The Cloud Services are not intended for use in applications or situations where failure of the Cloud Services could result in death or serious bodily injury to any person, or to severe physical or environmental damage, or for use in other critical or security-related applications.

3.4 Customer shall use the Cloud Services exclusively within the scope of their intended purpose and in accordance with these GTC. In addition, Customer undertakes to comply with the Terms of Use, which Customer accepts when placing the order. If Customer fails to comply with the obligations defined therein for reasons for which it is responsible, LEDVANCE shall not be responsible for any resulting functional restrictions.

4. Conclusion of Contract, Start of Contract, Term, Termination

4.1
The Cloud Services offered on the LEDVANCE website do not constitute a binding offer to conclude a contract; rather, Customer is given the opportunity to submit a binding offer for the conclusion of a contract on the use of the Cloud Services.

4.2 Customer submits its offer via the online order form provided on the LEDVANCE website. In addition to its personal data, Customer also specifies the serial number(s) and the geographical location of the Controller Unit(s) for which Customer wishes to book the Cloud Services. Up to ten (10) Controller Units can be specified in an order form. The activation of additional Controller Units must be ordered separately.

4.3 The project name assigned by Customer is the basis for the assignment of a so-called  ORG-NAME  by LEDVANCE, which also becomes part of the unique URL <ORG-NAME>.dalipro.io, which represents the access point for the registration/login mask for logging into the user account of Customer for all Controller Units created under the respective ORG-NAME. By specifying the ORG-NAME, it is also possible to integrate additional Controller Units, for example. An order under a different ORG-NAME leads to the creation of a new, technically separate organization.

4.4 By clicking the button that concludes the order process, Customer submits a legally binding contractual offer to LEDVANCE for the procurement of the Cloud Services for the Controller Units specified in the order form ("Offer"). Before submitting the Offer, Customer can correct all entries on an ongoing basis using the usual keyboard and mouse functions.

4.5 After submitting the Offer, Customer will receive a confirmation of receipt by e-mail to the e-mail address provided by Customer ("Confirmation of Receipt"). This Confirmation of Receipt does not constitute an acceptance of the Offer by LEDVANCE, but merely serves to inform Customer that the Controller Unit activation process has begun. In order to ensure a successful activation of its Controller Units, Customer must ensure that these are continuously connected to the Internet from the time of the Offer at the latest. Otherwise, activation and thus use of the Cloud Services will not be possible.

4.6 After successful activation, Customer will receive a confirmation from LEDVANCE including a unique URL <ORG-NAME>.dalipro.io, under which Customer can access the Cloud Services for its organization ("Activation Confirmation"). Upon receipt of the Activation Confirmation by Customer, a contract is concluded between LEDVANCE and Customer, consisting of Customer's order, the respective corresponding Activation Confirmation as well as these GTC and the Terms of Use for the Cloud Services (hereinafter also referred to as "Contract" or "Contractual Relationship"). The GTC and the Terms of Use for the Cloud Services can be downloaded when the order is placed and can be saved by Customer. LEDVANCE does not ensure that they can be retrieved at a later time.

4.7 As long as there is no Activation Confirmation, no Contract is concluded between LEDVANCE and Customer.

4.8 Customer must ensure that the e-mail address provided by him for order processing is correct, so that e-mails sent by LEDVANCE and, if applicable, its service providers can be received at this address. In particular, when using SPAM filters, Customer must ensure that all e-mails sent for order processing and activation of Controller Units can be delivered.

5. User Registration, Activation of Authorized Users, Obligations of Authorized Users

5.1
The use of the Cloud Services requires a separate user registration of Customer following the activation. For this purpose, Customer must provide a user name, the e-mail address used for placing the order and a password (collectively also referred to as "Login Data") and agree to the Terms of Use.

5.2 After successful registration, Customer has a user account with individual Login Data and administrator rights through which Customer can use the Cloud Services in accordance with these GTC and activate additional users with individual authorizations (read-only rights) to use the Cloud Services. Customer is not permitted to grant administrator rights to Authorized Users.

5.3 For the activation of additional users, Customer communicates the unique URL of its organization to a person of its choice. The invited user has to enter his own Login Data on the registration page and has to agree to the Terms of Use. After successful registration, the user has a user account with individual Login Data. Customer will be notified about the registration. Customer can then authorize the new user as an Authorized User.

5.4 Customer shall ensure that its Authorized Users comply with the Terms of Use and, in particular, with the obligations relating to the protection of Login Data. Customer is liable for all activities under its user account and the user accounts of its Authorized Users. Customer is not liable if Customer is not responsible for the misuse.

5.5 If LEDVANCE suspends a user's access in accordance with the Terms of Use, LEDVANCE will make reasonable efforts to restore access to the Cloud Services if LEDVANCE determines that the cause of the suspension has been remedied. A suspension does not release Customer from its payment obligations. LEDVANCE assumes no liability in connection with a justified suspension or cancellation of user accounts.

6. Free Trial Period, Paid Subscription Period, Automatic Renewal

6.1
Customer may test the Cloud Services completely and free of charge during a test phase after receipt of the Activation Confirmation and successful registration ("Free Trial Period"). Unless otherwise agreed, the duration of the Free Trial Period shall be six (6) months. The Free Trial Period may only be used once per Customer.

6.2 If Customer does not wish to continue using the Cloud Services, Customer must terminate the Contractual Relationship with LEDVANCE no later than thirty (30) calendar days before the end of the Free Trial Period (e-mail to be sent to: shop.vivares@ledvance.com). In this case, the Contractual Relationship shall expire at the end of the Free Trial Period.

6.3 If no notice of termination is given within the aforementioned period, the Contract shall be extended by a paid subscription period of twelve (12) months calculated from the end of the Free Trial Period ("Paid Subscription Period").

6.4 During the Paid Subscription Period, the Contract may be terminated by either party with a notice period of three (3) months to the end of the Subscription Period or the respective Renewal Period. Without termination, the Contract shall be automatically extended for a period of another twelve (12) months ("Renewal Period").

6.5 The right of each party to extraordinary termination for good cause shall remain unaffected.

7. Remuneration, Terms of Payment

7.1
The annual fee to be paid by Customer for the provision of the Cloud Services for the Paid Subscription Period or a Renewal Period shall be calculated on a unit price basis for each activated Controller Unit ordered by Customer in the order form and shall be specified in the Contract. The annual fee is to be paid by Customer each year in advance.

7.2 The start and duration of the Paid Subscription Period and subsequent Renewal Periods are specified in the respective Contract.

7.3 Invoices from LEDVANCE are due for payment immediately and without deduction upon receipt by Customer. Customer may pay exclusively by bank transfer to the account specified by LEDVANCE in the invoice. Other payment options are not available.

7.4 Unless expressly stated as gross prices, all prices are subject to the statutory value-added tax applicable at the relevant time.

7.5 LEDVANCE may suspend access to the Cloud Services if Customer is more than 60 days in arrears with a payment obligation under this Contract. A suspension does not release Customer from its payment obligations. If the delay in payment has been remedied, LEDVANCE shall make reasonable efforts to restore access to the Cloud Services.

8. Updates and New Versions

8.1
From time to time, patches, bug fixes, updates, upgrades and other changes may be installed to correct defects, to fix bugs or to maintain or improve the Cloud Services ("Updates"). LEDVANCE will inform Customer of such Updates prior to their installation, provided that this is reasonable and appropriate from LEDVANCE's point of view. Updates will be installed automatically without requiring any additional consent by Customer. If LEDVANCE rolls out Updates, the provisions of this Contract shall also apply to them. LEDVANCE will also make new versions of the Cloud Services available to Customer from time to time.

8.2 LEDVANCE is entitled to make commercially reasonable changes to the Cloud Services from time to time. Such changes may also consist of an omission or limitation of certain functions or applications.

8.3 LEDVANCE is entitled to terminate access to the Cloud Services in any country where LEDVANCE becomes subject to a newly introduced government regulation, obligation or other requirement that prevents LEDVANCE from providing access to the Cloud Services.

8.4 LEDVANCE shall notify Customer in advance of any significant changes to or termination of the Cloud Services.

9. Rights of Use, Term, Open Source Components

9.1
Subject to the fulfillment of its contractual obligations, LEDVANCE revocably grants to Customer the non-exclusive, non-transferable and limited right to access and use the Cloud Services for the purposes agreed in these GTC and in accordance with applicable law, and to allow Authorized Users to use the Cloud Services.

9.2 Insofar as computer programs are made available to Customer within the framework of the Cloud Services, changes to the computer programs as well as error corrections are permitted to the extent that they are necessary for the intended use of the computer programs. A reverse translation (decompilation) of the program code into another form of presentation is prohibited. Excepted from this is a partial translation for the purpose of establishing interoperability of an independently created computer program with a provided computer program or with other computer programs under the restrictions specified in § 69e UrhG (German Copyright Code).

9.3 The rights of use are granted for the term of the Contract. The rights of use expire in any case upon suspension or cancellation of the user account.

9.4 The Cloud Service uses open source components that are subject to additional prevailing license terms. The open-source components and the corresponding license terms can be found in the Open-Source Declarations listed on the LEDVANCE Website at https://www.ledvance.com/professional/products/product-stories/vivares/open-source-declarations .

10. Claims in the event of defects

10.1
LEDVANCE shall remedy technical defects of the Cloud Services that materially nullify or reduce their suitability for use in accordance with the Contract within a reasonable period of time. LEDVANCE's responsibility in this respect extends only to the handover point of the Cloud Services to the Internet, namely the exit router of the data center in which the Cloud Services are operated, but not to the systems of Customer and its Authorized Users and data transmission lines beyond the handover point.

10.2 It is Customer's responsibility to immediately report any defects, malfunctions or damage that occur, submitting verifiable documentation on their nature and occurrence. Customer shall cooperate in the defect analysis.

10.3 Notwithstanding the provision in Clause 11.7, claims shall become statute-barred twelve (12) months after the statutory commencement of the limitation period. This period shall not apply in the event of intent, fraudulent concealment of a defect or breach of a warranty as to quality.

11. Liability, Limitation Periods

11.1
LEDVANCE shall be liable to Customer without limitation in the event of intent, gross negligence, fraudulent concealment of a defect, culpable injury to life, limb or health, assumption of a guarantee of quality or in the event of mandatory liability under the German Product Liability Act (ProdHaftG); this shall apply in particular to LEDVANCE's liability for material defects and defects of title, e.g. for errors or defects relating to the correctness, completeness, usability, availability, reliability or security of the Cloud Services. Furthermore, LEDVANCE shall be liable in case of a slightly negligent breach of a material contractual obligation, i.e. an obligation the fulfillment of which is a prerequisite for the proper performance of the Contract and the observance of which Customer may regularly rely on, but limited to the foreseeable damage typical for the Contract. Any further liability of LEDVANCE, irrespective of the legal grounds, is excluded.

11.2 The strict liability for damages (§ 536a BGB) for defects existing at the time of conclusion of the Contract is excluded.

11.3 LEDVANCE shall not be liable insofar as malfunctions or damage occur due to a) Improper operation or use of the Cloud Services by Customer, an Authorized User or a third party, b) Failure by Customer to implement appropriate security measures. c) Technical deficiencies of the Internet connection (e.g., fluctuating network quality, inaccessibility of the network, insufficient connection quality) or d) Culpable breach of one of Customer's obligations under these GTC or the Terms of Use.

11.4 If Customer terminates during the Free Trial Period, i.e., the use of the Cloud Services is completely free of charge for Customer, LEDVANCE shall only be liable in case of intent and gross negligence. Any further liability of LEDVANCE is excluded. Liability under the Product Liability Act remains unaffected.

11.5 Unless LEDVANCE's liability is unlimited pursuant to Clause 11.1, LEDVANCE shall be liable for the loss of data only to the extent that such loss could not have been avoided by reasonable data backup measures on the part of Customer.

11.6 The limitation period for claims for damages by Customer is two (2) years, unless LEDVANCE has unlimited liability pursuant to Clause 11.1.

11.7 The limitation period for claims for damages based on a defect of the Cloud Services is one (1) year, unless LEDVANCE has unlimited liability pursuant to Clause 11.1.

11.8 The limitation period pursuant to Clauses 11.6 and 11.7 shall commence at the end of the year in which the claim arose.

11.9 The above liability provisions shall apply in particular to claims for damages and reimbursement of expenses and, moreover, to the same extent in favor of the officers, legal representatives, employees and other vicarious agents of LEDVANCE.

12. Force Majeure

12.1
Neither party will be liable for any delay or failure to perform any obligation under this Contract where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outage, utilities or telecommunications failures, earthquake, storms or other elements, blockages, embargos, riots, acts or orders of government, acts of terrorism, or war (“Force Majeure”).

12.2 If a party is unable to perform its obligations under the Contract due to a Force Majeure event, then the respective party must notify the other party of this circumstance without delay and indicate when, in its view, the Force Majeure related hindrance will be removed. The other party may also suspend its own obligations to the same extent until such time as the relevant obstruction has ceased to be.

12.3 If it is impossible to eliminate an obstruction permanently or if such obstruction leads to delay of more than three (3) months, either party can cancel the Contract by notifying the other party in writing whereupon the parties shall be released from any further contractual obligations.

13. Customer Service

LEDVANCE shall set up a customer service for inquiries regarding the functions of the Cloud Services. Inquiries can be made by e-mail to contact@ledvance.com or by telephone during working hours in accordance with Clause 2.6at +49 (89) 780 673 100.

14. Applicable Law, Place of Jurisdiction

14.1
The Contractual Relationship between LEDVANCE and Customer, including these GTC and the Terms of Use, shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the provisions of international private law.

14.2 If Customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the Contractual Relationship between LEDVANCE and Customer shall be Munich, Germany. However, LEDVANCE is also entitled to sue Customer at its general place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this.

15. Changes to the GTC, Severability

15.1
LEDVANCE reserves the right to amend these GTC to the extent necessary, provided that Customer is not thereby disadvantaged in a manner contrary to good faith or unreasonably. Any amendments to the GTC will be made available via the website. If Customer does not agree with the amended GTC, Customer is free to reject them; however, this means that Customer can no longer use the Cloud Services.

15.2 Insofar as individual provisions of these GTC are or become invalid or unenforceable in whole or in part, this shall not affect the validity and enforceability of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes as close as possible to the economic objectives of the parties. The same shall apply in the event of an omission.

Last update: June 202

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