Last Updated: 2/15/2018
If you have your habitual residence in Germany and if the Services or Products were offered to you there, certain sections of the Terms of Service do not apply to you. Instead, the following terms and conditions apply to you:
1. Changes to the Terms of Service
Instead of the last paragraph of the preamble of the Terms, the following applies:
Noitom reserves the right to modify these Terms under the following circumstances: If due to unforeseeable changes, which were not caused by us and over which we have no influence, (i) the balance between performance and consideration is affected materially, or (ii) if, due to changes of laws or changes in case law, parts of these Terms become invalid and thus a change of these Terms – taking due account of your interests – is necessary. We will limit such changes to the affected parts of these Terms only. The balance between performance and consideration would be affected if, without such change of the Terms, continuing and performing the Services is either impossible or only possible with extreme difficulties.
If Noitom makes changes to these Terms, we will provide notice of such changes by either sending an email notification to the address you’ve provided or by providing comparable notice through the Services. The revised Terms are deemed to be accepted by you if you do not object to the changes in text form within a time period of four weeks starting from the receipt of the notification. We will notify you of the significance of not objecting at the beginning of the four week time period. We will also notify you about where you can send your objection. If you do not agree to the revised Terms, you must stop using the Services. We encourage you to review the Terms from time to time to ensure you understand the terms and conditions that apply to your access to, and use of, the Services.
Noitom may also make changes or updates to these Terms and seek your agreement for these changes.
2. Limitation of Liability
Instead of section 17 of the Terms, the following applies:
2.1 Liability for intent and gross negligence: In cases of intent or gross negligence we shall assume liability for damages attributable to a breach of duty on our part or on the part of one of our representatives or vicarious agents.
2.2 Liability for slight negligence: In cases of slight negligence we shall assume liability for injury to life, body or health attributable to a breach of duty on our part or on the part of one of our representatives or vicarious agents. Apart from that the following restrictions shall apply with respect to slight negligence:
2.2.1 With respect to the violation of duties which are part of the (i) contractually agreed main performance or (ii) of duties whose performance is a fundamental precondition for the proper fulfillment of the contract itself and on whose performance the contractual parties may regularly rely (hereinafter referred to as “Cardinal Duties”), we shall only assume liability for damages typical of such contract.
2.2.2 Liability for slight negligence shall be excluded for the violation of other than Cardinal Duties.
2.2.3 Liability for slight negligence shall be excluded for any Services or Products that has been offered free of charge.
2.3 Where, pursuant to this section, our liability is excluded or limited, the latter shall also apply to the personal liability of our employees, representatives or vicarious agents.
2.4 Liability under product liability laws: Liability under mandatory product liability laws shall remain unaffected by the above clauses.
3. Warranty Rights
Instead of sections 4.6 and 15.2 of the Terms, the following applies:
In the event of an error, you have the statutory warranty rights with Section 2 (Warranties, Limitation of Liability) of these special terms and conditions designed for Germany applying to any liability.
4. Applicable Law, Jurisdiction
Instead of sections 18, 19.2 and 19.3 of the Terms, the following applies:
These Terms are subject to German law, excluding its conflicts of law rules, and excluding the UN Convention on the International Sale of Goods. Your access to and use of the Services and Content may also be subject to other local, state, national or international laws.
Any disputes arising from these Terms are subject to the exclusive jurisdiction of the courts where you have your habitual residence.
Instead of section 21 of the Terms, the following applies:
We reserve the right to terminate your right to access and use the Services if you are in material breach of these Terms, or any other terms or policies referenced herein. We will only terminate if, taking into consideration all circumstances and the interests of both parties, it would be unduly burdensome for us to continue the contractual relationship through the period of time until a termination for convenience would become effective. Unless such breach cannot be cured, we will provide a written request (e-mail being sufficient) to cure before terminating. Unless there are special circumstances which justify immediate termination (considering the interests of both parties), we will provide an appropriate amount of time to cure. We will only exercise this right within a reasonable amount of time after becoming aware of the breach.