Terms of Use

Koubachi Terms and conditions

1. General

The services that can be accessed via the mobile application ("app") and Internet-based user interfaces (collectively "Services") are provided to you by:

GARDENA GmbH
Hans-Lorenser-Strasse 40
89079 Ulm, Germany
Registered in the commercial register at the district court in Ulm under: HRB 721339
General Manager: Pär Åström, Joachim Müller
VAT No.: DE 225 547 309
www.gardena.com ("GARDENA").

GARDENA is part of the Husqvarna Group. The purpose of the Services is the provision of the Koubachi plant care assistant. The Services contain only functions that are described in the information area of the app or on the Koubachi webpage. Use of the Services may also be subject to further end user conditions, such as those of Apple or other providers of download stores for mobile devices. Your relationship with GARDENA is governed solely by these terms of use and terms of licence (the "Terms of Use"). GARDENA's data privacy statement for the Services is contained in a separate document and you have agreed to this data privacy statement with a separate declaration.

2. Basic requirements

You are only entitled to establish a connection between the Services and your Koubachi hardware if you are the owner of this hardware. The use of the Services requires at least iOS 9 or Android 5. When registering for access to the Services, you accept that a personal user account is created. Your account will be managed by Husqvarna Group services and is directly linked to the specific Koubachi hardware, as well as its owner. The user account can only be accessed with a personal password of your choice. Any change in the ownership of any Koubachi hardware requires the previous owner to immediately disable the connection between the Services and the hardware.

3. Licence

Subject to these Terms of Use, GARDENA grants you a non-exclusive, non-assignable and non-transferable licence (the "Licence") for the use of the Services. The Licence is granted for private use rather than for commercial use. You must not decompile, reverse engineer, attempt to derive the source code of, modify or create derivative works from the Services and their content. Any attempt to do so represents a violation of the rights of GARDENA. If you violate these restrictions or any other restrictions referred to in this Section 3, GARDENA is entitled to extraordinarily terminate the Licence as well as the Terms of Use without notice. You may also be prosecuted or liable for damages. This Licence is granted for an unlimited period of time. The Licence is valid until it is terminated in accordance with Section 9 below or until ownership of the Koubachi hardware changes.

4. Property rights

The Services and all intellectual property rights to or in connection with the Services, in particular copyrights, trademark rights and domains, belong to Husqvarna AB. Husqvarna AB reserves all rights to the Services. You are not permitted to remove, alter or obscure legal information. Your rights regarding your personal data and, in particular, your name and address remain unaffected. You are entirely responsible for maintaining the confidentiality of any user and login information that is provided to you or chosen by you. You also undertake to notify GARDENA immediately of any unauthorised use of the Services or any breach of security.

5. Charges for use of the Services

Subject to these Terms of Use, the basic version of the Services is provided free of charge. This version is required for the remote control of your Koubachi hardware that you purchased separately ("basic version"). GARDENA will also provide updates for the basic version at no cost, for example bug fixes, security patches and improved functionality. GARDENA can also provide you with additional functions within the Services for a fee. To be able to use additional Services, you may need to purchase additional functions for a pre-determined fee ("in-app purchases"). The conditions and fees applicable to such in-app purchases will be communicated at the time of purchase. GARDENA will identify all Services that can be acquired through in-app purchases and ask you for payment information prior to purchase. In-app purchases can be consumable or non-consumable. Consumable means that an item must be re-purchased each time you wish to use it and that it cannot be transferred to other devices. Non-consumable means that once an item is downloaded, it can be used multiple times and can be transferred to other devices. Alternatively, Services can be made available through a subscription ("Subscription"). Licence fees relating to the Subscription will be communicated when subscription is complete. GARDENA will identify Services that can be made available through a Subscription and ask you for payment information prior to purchase. There are subscriptions with and without automatic renewal.

6. Information regarding Apple Inc.

If you have downloaded the Services via an App Store belonging to Apple Inc. or any of its subsidiaries or affiliated companies (collectively "Apple"), you acknowledge that these Terms of Use apply solely between you and GARDENA, not between you and Apple, and that Apple is not responsible for the Services and their content. Apple is under no obligation to provide any maintenance or support in relation to the Services. If warranty rights to the Services exist due to a defect, you can notify Apple and Apple will refund the applicable purchase price for the mobile application. To the extent permitted by applicable law, Apple has no further warranty obligations with respect to the Services. Apple is not responsible for claims made by you or any third party in connection with the Services or your ownership and/or use of the Services, including but not limited to: (i) product liability claims, (ii) claims that the content of the Services does not comply with the applicable statutory or regulatory requirements and (iii) claims under the consumer protection law or similar. Apple is not responsible for investigating, defending, settling or fulfilling claims based on the allegation that the Services and/or your possession and use of the app infringe upon the intellectual property of these third parties. You agree to comply with any applicable third party terms of use when using the Services. Apple and Apple's subsidiaries are third-party beneficiaries of these Terms of Use, and by agreeing to these Terms of Use you give Apple the right (and acceptance of this right by Apple will be deemed to be declared) to enforce these Terms of Use against you as a third-party beneficiary. You hereby guarantee that (i) you are not in a country that is subject to an embargo by the US Government or that has been defined by the US Government as a "State Sponsor of Terrorism", and (ii) you are not included on a US Government list of banned or prohibited parties or on a Specially Designated Nationals list.

7. Warranty and liability

You expressly accept that it is not possible to develop software in such a way that malfunctions are excluded in all possible circumstances of use. You expressly acknowledge the risks associated with the use of the Services that apply for most applications, such as loss of data, defects or errors.

7.1. Warranty

The following conditions apply to warranty rights in relation to the Services of GARDENA:

7.1.1. Basic version

The basic version of the Services is provided free of charge without any warranty. You have no warranty rights in connection with material or legal defects in relation to the quality and performance of the basic version, with the exception of claims for damage in the case of fraudulent concealment in accordance with Sections 523 and 524 of the German Civil Code (BGB).

7.1.2. In-app purchases

You expressly acknowledge that the chargeable Services are not completely error-free, as is the case with all mobile applications. If the Services purchased otherwise contain defects, or if they do not contain the features described in the offer, GARDENA is entitled to remedy such defects at its own discretion either by replacing the defective Service or by remedying the defect ("supplementary performance"). You are then only entitled to reduce or to withdraw from the contract if GARDENA's attempts to remedy the defect have failed.

7.1.3. Subscriptions

You expressly acknowledge that the chargeable Services are not completely error-free, as is the case with all mobile applications. If the Services to which you subscribe otherwise contain defects or if they do not contain the features described in the offer, you are entitled to demand that GARDENA rectify these defects. The strict liability pursuant to Section 536a of the German Civil Code is excluded.

7.2. Liability

GARDENA's liability for damages—regardless of whether from contractual or non-contractual claims—is governed exclusively by the following provisions: GARDENA is liable for damages resulting from injury to life, limb or health that are based on a negligent or intentional breach of duty, in accordance with the statutory regulations. In accordance with the statutory regulations, GARDENA is also liable for damage claims based either on deliberate or grossly negligent conduct by GARDENA, including its representatives or vicarious agents, or on GARDENA's culpable breach of an essential contractual obligation. GARDENA's liability for damages in these cases will however be limited in amount to foreseeable, typically occurring damages, except in the event that GARDENA acted intentionally or with gross negligence or in the event that its representatives or vicarious agents acted intentionally. In this context, the term "essential contractual obligation" is used to denote a material breach of duty that is specifically described in the contract and that jeopardises the achievement of the purpose of the contract. The essential contractual obligation is an obligation that must be met in order to enable proper execution of the contract and that the contractual partner can regularly rely on to be observed. In addition, GARDENA is liable under the mandatory provisions of the German Product Liability Act (ProdHaftG) dated 15 December 1989. Otherwise, GARDENA's liability for damages is excluded. Therefore—unless otherwise stipulated above—GARDENA will not be liable for damages that were not caused to the Services themselves (for example, loss of profits or other purely pecuniary loss to the buyer), for claims for damages resulting from the breach of secondary obligations arising from a contractual obligation or the law, for example incorrect advice, care or clarification, packaging design and instructions regarding handling, or for claims arising from non-contractual liability, including product liability in accordance with Section 823 of the German Civil Code. Insofar as GARDENA's liability is excluded or limited, this also applies to the personal liability of its staff, workers, employees, representatives and vicarious agents.

8. Termination of the service

You can terminate the agreement that is the subject of these Terms of Use at any time by cancelling your corresponding user account. You will not receive refunds if you cancel your user account. If you are in serious breach of these Terms of Use or if other exceptional circumstances occur, GARDENA reserves the right, in accordance with the statutory provisions, to terminate the contract that is the subject of these Terms of Use for good cause without notice, and thus terminate your user account and access to the Services.

9. Adjustments and changes to the Terms of Use

GARDENA is constantly innovating in order to give its users the best possible experience. You accept that the nature and features of the basic version of the Services that GARDENA provided free of charge may change from time to time without prior notice. Changes in the nature or the features of the basic version will take effect for all versions. Examples of changes in the nature or the features of the basic version are bug fixes, security patches, improved functionality and other enhancements. Changes and enhancements to paid Services, as described in Section 5, are subject to your consent. GARDENA may also ask for your consent to changes to these Terms of Use within a pre-determined period. You can accept such changes or object to them within a defined period of time.

10. Cancellation right

You have the right to cancel this contract within fourteen days without giving a reason. The cancellation period is fourteen days starting from the day on which the contract is concluded (e.g. installation of the app or other access to the Services). To exercise your cancellation right, you must inform us of this (GARDENA GmbH, Hans-Lorenser-Strasse 40, 89079 Ulm, Germany; tel.: +49 (0) 7 31 4 90-0; fax: +49 (0) 7 31 4 90-219; email: support@koubachi.com) by means of a clear statement (e.g. by post, fax or email) of your decision to cancel this contract. The cancellation period will be deemed to have been complied with provided that you send notification that you are exercising your cancellation right before the expiry of the cancellation period.

10.1. Consequences of cancellation

If you cancel this contract, we will refund all payments that we have received from you in relation to the Services specified in these Terms of Use, including the cost of delivery of the app (with the exception of any additional costs arising from the fact that you selected a different method of delivery other than the cheapest standard delivery offered by us), without delay and at the latest within fourteen days from the date on which we receive notification of your cancellation of the contract. Unless expressly agreed otherwise, we will use the same payment method for this repayment that you used in the original transaction; in no case will you be charged a fee as a result of this repayment.

11. Applicable law

These Terms of Use and the use of the Services are subject to the law of the Federal Republic of Germany, with the exception of private international law and the UN Convention on Contracts for the International Sale of Goods from 11 April 1980 (CISG). In Germany, GARDENA operates, controls and manages the Services from your German office. If you access the Services outside of Germany, you are responsible for ensuring compliance with local laws.

12. Contact information

If you have any questions regarding the Services, please contact:
support@koubachi.com.

Last modified: 25 April 2018