Last update: 26.10.2021

NeoVac myEnergy and NeoVac Monitoring Pro are services of NeoVac ATA AG with registered office in Oberriet SG (hereinafter referred to as the “Services” and “NeoVac”).

These terms of use govern the rights and obligations of both NeoVac and the users of the Services (hereinafter referred to as the “Users”). Supplementary or further terms and conditions and contractual agreements may exist for individual or additional functions and services.

1. Functions and services

1.1 NeoVac operates the Services on behalf of Users such as property consultants, owners or management companies as cloud services and/or software-as-a-service (SaaS). NeoVac will provide access to the respective latest version of these Services.

1.2 Which Services are used, the scope of functions and services as well as any fees are based on the respective contractual agreements between the parties. NeoVac may publish relevant information and refer to it on its website and in other publications.

1.3 NeoVac operates the infrastructure for the Services on behalf of Users and stores User data. NeoVac is entitled to have all or individual services in connection with the Services performed by contracted third parties. If and to the extent contract processing is carried out, the NeoVac contract processing agreement is deemed a part of these terms of use.

1.4 NeoVac is also entitled to adapt or further develop the Services as a whole or in relation to individual functions and services. NeoVac will inform Users in an appropriate manner of any significant modifications. Users may terminate their contract in writing with a notice period of three months with effect from the end of a month if a significant modification is unreasonable for individual Users.

1.5 NeoVac may send Users messages relating to the Services by e-mail and other communication channels. Such messages may also contain advertising for functions and services of the Services. Users may object to the receipt of messages containing advertising at any time.

2. Use of services

2.1 NeoVac grants Users a non-exclusive, non-transferable and non-sublicensable right of use to the Services for their own exclusive purposes during the applicable contractual term. The right of use is limited to the legally compliant use of the Services by individual Users in accordance with the contract. NeoVac may establish further restrictions on use and refer to any applicable terms and conditions and any rights of third parties.

2.2 All intellectual property rights and other rights to the Services granted to Users for the use of the Services remain with NeoVac and any other rights holders. In particular, Users do not acquire any rights to the software or to NeoVac’s expertise in connection with the Services.

2.3 NeoVac provides Users with individual User accounts. Users must take appropriate technical and organizational measures to prevent misuse and protect their User accounts from unauthorized access.

2.4 NeoVac stores Users’ data for the duration of each contract. The data is part of the legal domain of individual Users, who are solely responsible for the legality of the storage and other processing of their data. Users are obligated to comply with the applicable data protection legislation when processing any personal data.

2.5 NeoVac takes appropriate measures against data loss and to ensure data security. Data backup is the responsibility of individual Users. If and to the extent that NeoVac is not required by law or for other reasons to keep Users’ data, NeoVac is entitled to delete the data after the end of the contract.

2.6 Any use of the Services in an unlawful manner or for unlawful purposes is prohibited. In particular, it is the Users’ responsibility to ensure that applicable data protection legislation is observed and that no rights of third parties are infringed. NeoVac may at any time delete data suspected of being unlawful.

2.7 Users agree to indemnify NeoVac for all expenses and costs incurred and for any liability arising from any use of the Services which is unlawful or in breach of the agreement. Such costs expressly include the costs of legal advice and representation as well as for official and court proceedings that NeoVac considers necessary. Furthermore, Users exempt NeoVac from all claims of other Users and any third parties, if and insofar as such claims are related to their use of the Services.

2.8 NeoVac may at any time block Users’ access to the Services in the event of a breach of these terms of use or other contractual agreements, or if misuse is suspected.

3. Remuneration

3.1 Users undertake to meet all financial obligations towards NeoVac at all times, in full and on time. Any payment is due within 30 days, unless NeoVac specifies a different payment deadline. NeoVac may demand payment on account or advance payment for the use of the Services. Invoices which are not objected to within 30 days are deemed to have been approved.

3.2 Individual Users are automatically deemed in arrears without notice if payment is not made on time. In the event of default, NeoVac is entitled to charge reminder fees and default interest of 5% per year. NeoVac may deny defaulting Users access to the Services. NeoVac may assign claims against Users to third parties without consent. Users may not set off claims without the written consent of NeoVac.

4. Warranty and liability

4.1 NeoVac provides its services professionally and diligently. NeoVac endeavors to ensure that the contractually agreed scope of functions and services of the Services can be used during the applicable contract period. In the event of defects reported by Users to NeoVac, NeoVac will endeavor to remedy such defects within a reasonable period of time and with appropriate measures. Users are obligated to assist NeoVac in the rectification of any defects.

4.2 NeoVac endeavors to ensure the high availability and reliability of the Services, but cannot guarantee that the Services are error-free or that they will be available at full functionality and performance permanently and at all times. NeoVac may suspend access to the Services for maintenance work. Where possible, NeoVac schedules maintenance work between 10 p.m. and 6 a.m. (local time in Switzerland) and informs Users of scheduled maintenance windows.

4.3 The liability of NeoVac is limited to direct material damage and financial loss veritably caused by negligence on the part of NeoVac in the execution of contractual agreements with individual Users. Liability is further limited to the amount of the annual fee that the respective individual Users have to pay for the services in question.

4.4 Any liability of NeoVac or agents of NeoVac for other or more extensive claims and loss or damage, in particular claims for compensation for indirect, consequential or incidental loss or damage, loss of profit, loss of use, unrealized savings, and loss of business or earnings or force majeure, is expressly excluded. The consequences of the COVID-19 pandemic or future epidemics and pandemics are deemed force majeure. Under no circumstances will NeoVac be liable for any data of Users that is stored unlawfully or otherwise processed, or for the unlawful or otherwise improper use of data by Users.

4.5 The limitations of liability under these terms of use apply regardless of the legal grounds. Any further mandatory liability, in particular for gross negligence or intent, is reserved.

5. Term of contract

5.1 The start and duration of the contract are subject to the contractual agreements between the parties. Unless agreed otherwise, the contract begins when access to the Services is granted, and the contract is entered into for an indefinite period of time. Access to the Services will be blocked when the contract ends.

5.2 The contract may be terminated with notice by both parties in accordance with the respective contractual agreements between the parties. Notice of termination must be given in writing or in a manner that allows for documentation by text.

6. Final provisions

6.1 NeoVac may have some or all of its rights and obligations under these terms of use exercised by third parties or transferred to third parties.

6.2 Should individual provisions of these terms of use become invalid or void, the validity of the remaining provisions of these terms of use will not be affected. An ineffective or void provision must be replaced by a legally permissible provision which comes closest to the original purpose in economic terms.

6.3 NeoVac may amend these terms of use at any time without giving reasons. Users will be informed in an appropriate form of any significant changes to these terms of use. Users may terminate their contract in writing with a notice period of three months with effect from the end of a month if a significant modification is unreasonable for individual Users.

6.4 These terms of use are governed exclusively by Swiss law, with the exclusive place of performance and jurisdiction being the registered office of NeoVac.