Just to make sure you know what you can expect from us.
Just to make sure you know what you can expect from us.
1. All contractual relationships between KIWI.KI GmbH, Wattstraße 11, 13355 Berlin, (hereinafter referred to as “KIWI”) and its contractual partners (hereinafter referred to as “contractual partners”) are based exclusively on these General Terms and Conditions (hereinafter referred to as “GTC”). These will be substantiated by KIWI Offers, KIWI Use / Permission Agreements, KIWI Performance Descriptions, KIWI Installation Requirements and other specific KIWI Terms and Conditions, if any. All of the above are in accordance with these GTC, to the extent that the aforementioned contain a specific, final rule.
2. The General Terms and Conditions of contractual partners shall only apply if KIWI has expressly agreed to them in writing.
3. The contractual language is German. If (a) these GTC, (b) other KIWI contractual documents or (c) other KIWI conditions exist in other languages, these are not binding and may not be used for the purpose of interpretation. The respectively valid version in the German language shall remain decisive.
1. KIWI renders services stemming from (and in connection with) keyless, digital door access according to the respective separate specifications and subsequent to the conclusion of a usage and license agreement (in particular as part of an Operator, Flex, Purchase or Trader Agreement). To this end, a KIWI access system consisting of various products such as KIWI Smart Entry, KIWI Smart Lock, SmartDOOR or KIWI Safe, which is either provided by KIWI or partially purchased by the contractual partner, is installed and activated by KIWI / KIWI subcontractors. Once activated, the authorised users will be stored in the KIWI Portal by the contractual partner. This ensures that the person with access rights can open the doors electronically via KIWI Portal, via the KIWI app or via the KIWI Transponder (KIWI Ki or KIWI Klick).
KIWI thus offers the contractual partner, in terms of opening doors and managing access authorisations, (a) a particular level of convenience, (b) a cost-saving system and (c) a secure access system with regard to the management of access authorisations.
The KIWI system itself is characterised by a very high reliability. However, 100% functionality is not guaranteed. For this reason, the system can also be opened after installation – depending on the specific instance – including in many cases by way of a special emergency card, by KIWI remote release or by an analogue key. Should opening not be possible, an emergency service subject to insurance cover can be called upon to call in a locksmith.
2. Typically, with regard to Usage and Licence Agreements the contractual partners of KIWI are (a) property owners (or landlords) / owner communities (e.g. including consumers), (b) housing administrators via power of attorney or (c) tenants.
3. The Agreements between KIWI and its contractual partners / customers pursuant to the preceding Clauses Nos. 1 and 2 of this Section are concluded with the objective of pursuing a permanent business relationship.
4. The KIWI installation requirements always form part of the usage / license agreements. Deviations between the above-mentioned installation conditions and the actual existing infrastructure shall be borne by the contractual partner. This applies with regard to satisfiability, cost and time.
The contractual partner thus bears the risks stemming from (and in connection with) the local infrastructure. The latter applies comprehensively with regard to (a) setting up, (b) commissioning and (c) maintaining the KIWI system on a permanent basis.
5. KIWI also renders services as a supplier, e.g. for manufacturers of so-called SmartDOORS, or as a seller of accessories for the KIWI door access system. These services are based on a delivery contract model (hereinafter referred to as a “Vendor Agreement” or “Vendor Agreements”). With regard to the use of resulting end products, a separate Usage and License Agreement (with the exception of the Purchase Agreement Model) is to be agreed with KIWI.
6. KIWI continues to develop its products as part of an ongoing optimisation process. Such optimisations are to be accepted by the contractual partner, provided that the contractual partner does not suffer an objective disadvantage by the individual optimisation. A claim by the contractual partner to said optimisation does not exist.
7. If different provisions arise within these GTC from the respective specific business model (see § 2, above Nos. 1, 2 + 5), these are correspondingly indicated either as a heading and an antecedent to an entire Section, or are the subject of specific definition within a single regulation that forms part of a Section.
1. The prices of KIWI are denoted in EURO – in other currencies subject to concrete, contractual regulations (e.g. in the KIWI offer) – and are understood in Purchase / Delivery Agreements as exclusive of (a) delivery and installation and (c) exclusive of any transport – / vendor insurance.
2. Prices are exclusive of any applicable statutory VAT. VAT is calculated in the current amount on the day of the respective service.
3. In cases involving an overseas purchase, the contractual partner assumes all applicable (a) customs duties, (b) fees, (c) taxes and levies.
4. As part of the Usage and Licence Agreements, the contractual partner undertakes, among other things, to pay (a) a lump sum payment (b) an installation fee and (c) the monthly user charges.
5. The lump sum mentioned in No. 4 a) of this Section should cover, in particular, the purchase price for the KIWI hardware, which is to become the property of the contractual partner (cf. § 4 No. 1), the sales and administrative expenses, the provision of the KIWI hardware (e.g. KIWI Smart Entry, KIWI Smart Lock, KIWI Knauf, etc.) for use, each exclusive of installation (§ 3 No.4 [b]), and marketing support measures pertaining to individual contract variants within the scope of the respective contract, through the application of a mixed costing approach.
6. The KIWI installation fee pursuant to No. 4 b) of this Section only contains the previous (and contractually agreed) standard installation (as per the KIWI installation requirements) at one appointment and per (one) door / (a) safe. Repeat or supplementary appointments attributable, for example, to the fact that a successful installation could not be achieved on the set date for technical, infrastructural or staffing reasons on the part of the contractual partner, or due to a deviation in the costs involved with the standard requirements, will lead to additional costs of the customer, unless KIWI is liable for the absence of a success installation or increased costs involved.
7. An installation presupposes the rendering (performance success) of a 30% down payment in relation to the installation volume, which consists of the one-off lump sums (§ 3 No.4 a) + b)).
8. As soon as the KIWI system has been activated / respectively has not been activated for reasons attributable to the contractual partner, the monthly fee (§ 3 No. 4 (c)) is to be paid within the scope of the Usage / Licensing Agreements. With this monthly usage fee, the running costs of KIWI – including the services as per the Performance Specification – are satisfied. In the case of a so-called Purchase Agreement, the usage fees for a guaranteed service life are included. Of course, the contractual partner may use the KIWI System beyond the guaranteed period in return for payment of the corresponding monthly fee.
9. Payment amounts stemming from recurring services / uses, e.g. the monthly fee, must be paid in advance for the following month.
10. In the special case of a Cumulative Operator Agreement, the monthly fees payable will be due as part of the instalment payments. A final settlement will take place at the end of each calendar year.
11. KIWI’s Usage / License Agreements are created on a permanent basis (see § 11 below under Duration and Termination). KIWI therefore has the right to charge monthly usage fees (§ 3 No. 4 (c)) as at 01.01. of each year, at the earliest, however, 5 years after the contract has been signed. The details are set out in the respective Usage / License Agreement / Offer or form – if the latter does not apply – part of a separate Agreement.
12. KIWI is entitled to issue partial invoices at any time. The contractual partner is obliged to pay them.
13. All KIWI invoices are payable within 14 calendar days of the invoice date.
14. The customer can only off set claims asserted by KIWI with its own claims vis-a-vis KIWI that have been declared undisputed or legally binding.
15. Special regulation for consumers: If the contractual partner is a consumer, the latter can only pay by way of a SEPA direct debit procedure.
1. KIWI remains the sole owner of all KIWI items to be installed / delivered (“KIWI Hardware”), unless (a) KIWI delivers items for the SmartDOOR Product in the commercial context of a Vendor Agreement or (b) KIWI delivers items (KIWI Smart Entry, KIWI Smart Lock, KIWI Safe, KIWI Gateway and KIWI Transponders) under an expressly designated Purchase Agreement or (c) another arrangement is expressly agreed with KIWI, the latter being limited to KIWI Smart Lock, KIWI Safe and / or KIWI transponder.
2. In the most recently mentioned exceptional cases (§ 4 (1) (a) to (c)), the item remains the sole property of KIWI until full payment of the purchase price.
3. The above exceptions (a) and (c) will not, in any case, extend to the KIWI hardware component “KIWI Smart Entry” and “KIWI Gateways”. In any case, the latter remain the exclusive property of KIWI.
4. KIWI Apps, KIWI API, the KIWI Portal or any other software (see § 8 No. 6) will always remain the sole property of KIWI. KIWI only grants a non-exclusive, temporary right of use (see § 8 below).
1. Any installation requires, unless otherwise stipulated in the Agreement, a minimum lead time of 8 weeks from the conclusion of contract.
2. If, for reasons not attributable to KIWI, a pre-arranged date (a) cannot be kept or (b) does not lead to a successful installation, a new date will be made in compliance with the preceding Clause (§ 5 No.1).
3. In cases of so-called force majeure, Clause 1 above of this Section applies from the cessation of the effects of said force majeure event. Force majeure includes all cases that are not subject to the influence and will of the parties to a contract. These include natural disasters, government interventions, administrative decisions, blockades, war, terrorist attacks, cyber / DoS attacks.
4. KIWI is entitled to render partial services. The contractual partner is obliged to accept them. Reference is hereby made to § 3 No. 13 of these GTC.
1. In the case of what is strictly a Vendor Agreement without installation (e.g. SmartDOORS), the risk passes to the contractual partner upon dispatch, i.e. with the act of dispatching.
2. In the case of what is strictly a Vendor Agreement without installation (e.g. SmartDOORS), the contractual partner may not refuse to accept the purchased item due to insignificant defects.
3. Whenever KIWI hardware is installed, the risk passes to the contractual partner upon acceptance of the installation.
4. If the contractual partner is in default of acceptance, then in the case of the preceding Clause No. 3 of this Section, the risk shall be deemed to have passed with the time of the original installation date.
5. The acceptance (see § 6 No. 3) can be informal and implied. A protocol signed by both parties after said installation serves the sole purpose of verification.
6. Acceptance (see § 6 No. 3) takes place immediately after installation. This may not be rejected due to insignificant defects or by arbitrary decision.
7. If the acceptance (see § 6 No. 3) is refused arbitrarily or due to a minor defect, said acceptance is deemed to have taken place at the time of the first verbal request.
8. The contractual partner is obligated to the principle of partial acceptance in the context of No. 3 of this Section.
1. For the KIWI hardware to be delivered, the warranty period is 2 years from the date of installation or delivery, depending on what is contractually owed.
2. If there is a material defect in said delivery / installation (cf. above Clause 1 of this Section), KIWI will, at its discretion, repair the affected parts or replace them with faultless ones. To this end, the contractual partner must grant KIWI a reasonable period of time. Said repair or replacement is not accompanied by an extension of the warranty period or the start of a new warranty period.
3. If the defect is not successfully remedied within a reasonable period of time, the contractual partner may change or diminish it with regard to the defective parts. This shall apply without prejudice to a claim for damages by the contractual partner in the context of the regulation set out under III. No. 8 of this Section.
4. A material defect is, in particular, not present in the following cases: (a) an only insignificant deviation from the agreed condition, (b) in the case of natural wear / tear, (c) in the case of insignificant impairment vis-a-vis its usability or d) in the event of defective maintenance, provided that such circumstances are not the responsibility of KIWI. Further non-exhaustive examples of when a deficiency does not exist follow on from the common rules set out in III. of this Section.
5. In the case of a Vendor Agreement, the contractual partner – who is also an entrepreneur / trader – is obliged to inspect the delivery item immediately after delivery by KIWI and to report any defects immediately in writing. If he or she fails to report any such deficiencies, the delivery is considered approved, unless the defect was not apparent during the inspection.
6. If the contractual partner is an entrepreneur / trader, any claims for recourse within the meaning of § 445a German Civil Code (BGB) shall only apply vis-a-vis KIWI if, and to the extent that, the contractual partner has not entered into any agreements with its buyer that stretch beyond the statutory claims for defects.
7. Claims for defects expire 2 years after the delivery of an item, unless KIWI acts (a) intentionally or (b) fraudulently conceals the defect.
1. When involving so-called Purchase Agreements (i.e. not in the case of Vendor Agreements), use is guaranteed for a period in accordance with the general regulation contained in § 11 No. 1 Sentence 1 a)/b)/c). In all remaining cases involving Usage and License Agreements, the warranty corresponds to usage during the contract period.
2. If the KIWI hardware, which is not the property of the contractual partner, exhibits a defect that invalidates its suitability for contractual use, the contractual partner shall be exempted from his or her obligation to pay the monthly fee for the period during which the KIWI access system cannot be accessed (a) unless the contractual partner itself is responsible for the defect (e.g. exclusions from liability in III. of this Section) or (b) the cessation of use is only temporary in nature (see below); the regulation in III No. 6 of this Section shall apply accordingly).
3. If a defect is the responsibility of the contractual partner, KIWI shall charge the contractual partner for the rectification of said defect incl. (a) arrival / departure, (b) diagnosis, and (c) preparatory actions, etc., which the contractual partner must pay.
1. KIWI assumes no responsibility for the functioning of the customer’s own infrastructure, especially not for electricity.
2. KIWI assumes no responsibility for damages arising from the nature and infrastructure of the building in which the door access system is installed. (Ex.: humidity)
3. KIWI assumes no liability for the continuous functioning of the door access system.
4. No defect shall exist, especially when batteries are empty and need to be changed. A timely change is the sole responsibility of the contractual partner.
5. KIWI assumes no liability for a quality guarantee as defined in §§ 443, 444, 639 German Civil Code (BGB).
6. The mere temporary outage of the KIWI App, the KIWI Portal or the software (including KIWI API), which is attributable to the programming itself, e.g. due to bugs or operating system updates, is not deemed to be a defect. However, KIWI will ensure said temporary outages remain as brief as possible, and the contractual partner will grant KIWI a reasonable maintenance period. If the deadline expires without success, the provisions of II. No. 2 of this Section will apply.
7. Defects shall not include damage caused by the improper use of KIWI products or as a result of incidents that fall within the customer’s / contractual partner’s scope of responsibility.
8. The contractual partner may not assert claims for damages vis-a-vis KIWI arising from (or in connection with) defects. This does not apply if KIWI has fraudulently concealed a defect, in cases involving injury to life, limb or health, or in the case of an intentional or grossly negligent breach of duty by KIWI. For consumers, Sentence 1 of this Clause applies only in the context of § 10 No. 2.
9. Further claims by the contractual partner vis-a-vis KIWI arising from (or in connection with) material defects may not be asserted.
1. Unless otherwise agreed, KIWI guarantees compliance with industrial property rights / copyright in the Federal Republic of Germany for its products.
2. In the event of an infringement of industrial property rights / copyright in the context of a Vendor Agreement, as well as within the warranty period pursuant to § 7 I. No. 1, KIWI will, at its discretion and expense, (a) obtain a right of use (license), (b) modify the access system in such a way that no further protection / copyright is infringed, or (c) undertake an exchange. If, from the point of view of KIWI, this is not possible based on reasonable terms, then the contractual partner is entitled to a right of conversion or price reduction.
3. The use of KIWI hardware requires an effective and existing Agreement in the form of a Usage and License Agreement. The License Agreement is, by nature, not exclusive and has a limited duration.
4. In the case of a violation of industrial property rights / copyright in the context of a Usage / Licence Agreement, Clause 2 of this Section shall apply accordingly. In place of the right of conversion and price reduction, only the exemption from the obligation to pay the monthly fee – which may be temporary – will apply.
5. Any right by the contractual partner to the assertion of claims for damages vis-a-vis KIWI shall be governed, in the cases of the above Nos. 2 and 3 of this Section exclusively in accordance with § 7 III No. 8.
6. KIWI grants the contractual partner a non-exclusive, temporary right to use the KIWI App, the KIWI Portal, the KIWI API and any other software from and in connection with the KIWI door access.
7. The above use is bound to a valid contract with KIWI; said use may only occur in an expressed association with KIWI hardware (including the SmartDOORS) and may not be the subject of (a) improper, (b) unlawful or (c) criminal behaviour. A form of improper use by the contractual partner exists in particular, if he or she obtains unauthorised access to the premises of the tenant by means of the KIWI App, KIWI API, KIWI Transponder or the KIWI Portal, or excludes the latter from the premises subject to lease without the authorisation to do so.
8. In view of the above No. 7 of this Section, the contractual partner is also responsible for the conduct of its vicarious agents and other third parties, including any possible tenants.
9. In the event of an infringement of the obligations set out under the preceding Nos. 7 and 8 of this Section, the contractual partner will indemnify KIWI upon first written request against all claims arising in connection herewith, in particular those claims asserted by the lessees vis-a-vis KIWI. Said indemnification upon first written request also includes all costs arising from (and in connection with) a legal defence (in particular any legal and court costs).
– SPECIAL RULES for Usage and Licence Agreements –
1. The contractual partner is, in particular, obliged to: (a) hand over the prior written consent of the landlord and, if the landlord is not the owner, the owner itself to the installation and long-term operation of the KIWI access system, (b) grant KIWI access to the doors subject to contract at the respectively scheduled times (c) to pay the previously agreed one-time and monthly fees, lump sums and charges on time; (d) promptly inform KIWI in writing of any alterations affecting the KIWI door access system (e.g. replacement of doors), (e) store the emergency cards and, analogously, the respective door keys in local proximity, but removed from the contractual object itself, (f) explicitly alert the KIWI Service Hotline to an “emergency” in the event of such, (g) treat the KIWI hardware with care and protect it against incidents of damage / destruction, (h) ensure that any updates to the software as provided by KIWI are installed, and (i) immediately notify KIWI in writing of any damage or incidents of tampering with the KIWI door access system. Further obligations arise, in particular, from the additional regulations of these GTC, e.g. § 11 No. 8.
2. The contractual partner is obliged to ensure that the tenants referred to in No. 1 (e), (f), (g), (h), (i) of this Section, as well as § 8 No. 7 and § 11 No. 7 understand their obligations and fulfil these accordingly. Any misconduct by the tenants shall be remedied at the expense of the contractual partner.
3. The aforementioned obligations (a), (b), (c) and (d) of No. 1 to this Section and § 8 No. 7 are essential contractual obligations of the contractual partner, i.e. obligations, the fulfilment of which is essential for the proper implementation of the contract in the first place and, upon compliance with which the contractual partner may regularly trust and depend on.
4. If the contractual partner violates an obligation, the assertion of claims for damages stemming from § 280 German Civil Code (BGB) shall apply. At the same time, KIWI shall not be liable for any damage incurred directly or indirectly by the contractual partner as a result of a breach of obligations.
5. If the KIWI door access system can no longer be used as a result of a breach of obligation, this does not release the contractual partner from its contractual obligations, in particular from its obligation to pay the monthly fee.
1. KIWI will be liable for (a) intent and gross negligence, (b) injury to health, limb or life, even in cases of slight negligence, and (c) in line with mandatory regulations, in each case in accordance with the statutory provisions.
2. In the event of slight negligence, KIWI will otherwise only be liable for a breach of its material contractual obligation (a) the fulfilment of which enables the proper execution of said contract in the first place, (b) a breach of which jeopardises the achievement of the purpose of said contract and (c) upon compliance with which the contractual partners may regularly rely on. In turn, the liability of KIWI for property and pecuniary losses based thereon is limited to contractually foreseeable damage.
3. The aforementioned limitation of liability (§ 10 No. 2) also applies to the vicarious agents of KIWI.
– SPECIAL REGULATIONS for Usage and Licence Agreements –
1. KIWI access system Usage / Licence Agreements have a minimum term of (a) 2 years if the contractual partner is a consumer or (b) 5 years if the contractual partner is a tenant of a commercial property or (c) 10 years if the contractual partner is a businessperson. All of the above are automatically extended by 1 year each, unless they have been properly terminated in writing 3 months before expiration by the contractual partner or KIWI.
2. The right of termination for good cause remains unaffected by the provision in No. 1 above of this Section.
3. KIWI is entitled to terminate the contract for good cause, in particular, if (a) the contractual partner violates its essential contractual obligations, (b) the contractual partner repeatedly, i.e. at least twice (2x) violates its obligations and he or she has previously been informed in writing of the pending threat of extraordinary termination (c) the contractor has filed for bankruptcy, if insolvency proceedings have been instituted vis-a-vis him or her, or if insolvency proceedings against the contractual partner have been rejected for lack of assets, or (d) it is established that the effects of force majeure (see definition in § 5 No. 3) will last longer than 6 months.
4. The contractual partner is entitled to terminate the contract for good cause, in particular (a) if it is established that the effects of force majeure (see definition in § 5 No. 3) will last longer than 6 months or (b) if the contractual partner is a consumer and KIWI unilaterally increases the monthly fee (cf. § 3 No. 11).
5. If KIWI terminates the contract for good cause, for which the contractual partner is responsible (e.g. this is not the case with “force majeure”), KIWI is entitled to assert claims for damages vis-a-vis the contractual partner, in particular for any lost fees within the minimum term, less those expenses saved.
6. If the contractual partner of KIWI terminates for good cause, for which KIWI is responsible, then the assertion of any possible claims for damages vis-a-vis KIWI will be settled in accordance with § 10.
7. In the event of the ordinary termination of contract by the contractual partner, or in the event of a termination of contract by KIWI for good cause, the contractual partner shall be required to pay an installation fee to KIWI in accordance with the provisions of the original offer; however, this will be adapted to include any price adjustments agreed therein within the term (see § 3 No. 11). The re-payment of an installation fee now covers the costs for de-installing KIWI components that are not the property of the contractual partner. It shall only become payable in cases where KIWI actually upgrades its components, whereby KIWI is not obligated to do so.
8. The contractual partner must also grant KIWI access to the KIWI hardware after the termination of contract, in order that KIWI may de-install and remove the KIWI hardware that it owns.
9. Upon the termination of contract, the right to use the KIWI App, the KIWI Portal, the KIWI API and any other software from (and in connection with) the KIWI door access system will expire (cf. § 8 No. 6).
1. KIWI processes personal data in accordance with the EU GDPR and the Federal Data Protection Act. In this context, reference is hereby made to the company’s data protection policy on the homepage www.kiwi.ki.
2. KIWI respects existing laws, standards, regulations, guidelines, generally accepted rules and ethical requirements. This also applies in relation to subcontractors and suppliers, who undertake to adhere to and respect all compliance regulations when entering into a business relationship with KIWI, so to speak in their conduct vis-a-vis KIWI. The latter include, in particular, compliance with (a) ILO core labour standards (e.g. freedom of association and collective bargaining, the elimination of forced labour, the abolition of child labour and the prohibition of discrimination within employment and professions), (b) the rules on fair competition, in particular in compliance with the rules prohibiting anti-corruption, (c) the rules for fair pay, including respect for the minimum wage, (d) those regulations governing occupational health and safety, and (e) the regulations governing the support and promotion of women in the workplace (e.g. FrauenförderVO).
1. The contractual relationship between KIWI and its contractual partner shall be governed by German law, to the exclusion of the UN Sales Convention (“United Nations Convention on Contracts for the International Sale of Goods”), as well as to the exclusion of private international law.
2. The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Berlin, insofar as the contractual partner is not a consumer. For the latter, the place of jurisdiction to be elected by him or her may be his or her place of residence, or the place of jurisdiction of KIWI.
3. The customer may only transfer claims or other rights vis-a-vis KIWI with the express written consent of KIWI.
4. Should one or more provisions of the contractual relationship be or become invalid, the validity of those remaining provisions governing the contractual relationship shall remain unaffected. This shall not apply if adherence to the contractual relationship would be unreasonable for KIWI or the contractor.
– Version 08/2019 –