Nubart’s General Terms of Service

Digital Tangible SL (dba Nubart)

Last updated: March 12, 2020

1) General - scope of application

These general terms of service apply to all present and future business relations between Nubart and the contractual partner regarding the delivery of products (goods) and the rendering of services (services).

The contractual partner within the meaning of these general terms of service is any natural or legal person or company with legal capacity who, at the time of conclusion of this contract, is acting in the exercise of a commercial or independent professional activity.

Deviating, conflicting or supplementary general terms of service of the contractual partner shall not become part of the contract, even if known, unless their validity is expressly agreed to in writing.

These general terms of service are aimed to cover both tangible products (cards, headphones…) and intangible services (digital services, CMS, content production) provided by Nubart. By confirming an order in writing or by signing a contract, the contractual partner bindingly declares that he wishes to purchase the ordered goods or service. Nubart is entitled to accept or reject the contractual offer contained in the order within four weeks of receipt by Nubart.

Confirmation and declaration of acceptance by Nubart shall be made in writing by letter, by e-mail or by a signed contract or agreement. The same shall apply to supplements, ancillary agreements or amendments. The service to be rendered shall be described in detail in the letter of confirmation. The declaration of acceptance by Nubart may also be made by delivery of the tangible goods.

1.1 - Prices, further costs:

Nubart’s prices are quoted in EURO and are to be understood within Spain plus the statutory value added tax. In countries other than Spain, reverse charge will be applied.

Nubart shall be bound by the purchase price offered for 90 days, unless otherwise agreed. The date of confirmation is decisive in this respect.

Unless expressly agreed otherwise, the prices include packaging, freight, postage, insurance and installation costs inside the European Union. For countries outside the European Union, a separated fee for freight and postage may be applied on the provided quote or agreement.

1.2 - Terms of payment and invoicing

Unless otherwise specified in writing, 40% will be charged at the time of order confirmation and the remaining amount on delivery of the goods.

Nubart reserves the right to invoice the agreed service electronically by e-mail.

The contractual partner shall only be entitled to set-off if his counterclaims have been legally established or acknowledged by us. The contractual partner may only exercise a right of retention if his counterclaim is based on the same contractual relationship.

1.4 - Cancellation and follow-up costs

Cancellation by the contractual partner shall be subject to consequential costs. The cancellation of an order requires the written form (e.g. letter, e-mail). When cancelling an order, the buyer will be charged the costs incurred up to the time of cancellation.

Cancellation of a customer-specific production (for example, card production) involves costs incurred in production preparation, production planning, and release for production. After written approval of production and printing by the contractual partner, 50 % of the amount to be invoiced must be paid in full in the event of an intended cancellation, as production can then no longer be stopped.

In the event of cancellation of a purchase of merchandise (for example, headphones), the proportionate loss of profit and the costs of reversal to the supplier/manufacturer shall be borne; if the goods are so special that reversal to the manufacturer is not possible (for example, customized headphones), 100% of the invoice amount shall be borne by the buyer. The contractual partner shall receive an invoice from Nubart for the cancellation costs, which shall be settled within 10 days of receipt.


2) TANGIBLE GOODS

2.1 - Delivery and service

An agreement of delivery dates and delivery periods or service dates and service periods shall only come about with the express written confirmation of the date by Nubart.

If the contractual partner chooses the right of withdrawal due to Nubart' default, it shall not be entitled to any additional damages. Otherwise, the statutory provisions shall apply.

Nubart is entitled to make partial deliveries as far as this is reasonable for the contractual partner.

2.2 - Retention of title

Nubart retains title to the goods until all claims arising from the current business relationship with the contractual partner have been settled in full.

The contractual partner is obliged to treat the goods with care.

The contractual partner is obliged to inform Nubart immediately of any third partner access to the goods, for example in the event of seizure, as well as of any damage to or destruction of the goods. The contractual partner must notify Nubart immediately of any change of ownership of the goods and of any change of its own domicile.

Nubart shall be entitled to withdraw from the contract and demand the return of the goods in the event of breach of contract on the part of the contractual partner, in particular in the event of default in payment or breach of an obligation in this provision.

In the case of personalized goods that cannot be further commercialized (such as audio guide cards or personalized headphones), Nubart shall have the right to use the recovered goods as samples and to distribute them on to third parties.

The contractual partner shall be entitled to resell the goods in the ordinary course of business as long as he is not in default of payment. Nubart hereby assigns to the other contractual partner all claims in the amount of the invoiced amount, which are due to the other contractual partner against a third partner as a result of the resale. After assignment, the contractual partner is authorized to collect the claim. Nubart reserves the right to collect the claim himself if the contractual partner does not duly fulfill his payment obligations.

The handling and processing of the goods by the contractual partner (i.e. by integrating the cards into a card holder) is always carried out in the name and on behalf of Nubart as supplier or manufacturer. If processing takes place with elements that are not the property of Nubart, Nubart shall acquire co-ownership of the new item in the proportion of the value of the goods delivered by Nubart to the processed items. The contractual partner shall keep the (co-)ownership of Nubart in safe custody free of charge.

2.3 - Warranty for tangible goods

2.3.1 - Audio cards

The offers of Nubart are subject to change without notice. Technical changes as well as changes in form, color and/or weight are reserved within reasonable limits. Drawings, illustrations, dimensions, weights and other performance data are only binding if expressly agreed in writing.

For defects in the printed audio guide cards, Nubart shall provide warranty by replacement.

A Nubart card is considered defective and subjected to replacement if:

  • There is no match between the alphanumeric code and the QR code.
  • The QR code has not been printed in relief despite the customer's explicit written request when placing the order.
  • The colors differ significantly from the design originally approved by the contractual partner.
  • There are completely illegible written parts, as long as Nubart did not warn the contractual partner in advance of this possibility during the elaboration of the design (e.g. too small logos).
  • The cards have been printed on a material other than that explicitly requested by the contractual partner.

Minor deviations in the printing ink from the printable original or fluctuations in punching, which lead from card to card to different distances between the printed motifs and the card edges, do not entitle the customer to complain about the delivery. The same applies to the comparison between press proofs and production runs and the comparison between two productions.

2.3.2 - Headphones

Nubart is committed to guaranteeing the correct operation of 95% of the headphones supplied. The contractual partner accepts the fact that 5% of the headphones may have certain defects, such as:

  • Absence of one of the silicone hoods
  • Faulty operation of one of the two headphones

Unless otherwise agreed, Nubart undertakes to deliver 5% more than the ordered quantity in order to cover normal waste.

2.3.3 - Other electronic devices (powerbanks, adaptors)

Nubart is committed to guaranteeing the correct operation of 98 % of the powerbanks and adaptors (i.e. Lightning to 3,5 mm-jack adaptor) supplied. The contractual partner accepts the fact that 2% of this product may be defective.

Unless otherwise agreed, Nubart undertakes to deliver 2% more than the ordered quantity in order to cover normal waste.

2.3.4 - General warranty conditions for tangible goods

The warranty period for new goods vis-à-vis the contractual partner shall be one year from delivery of the goods. This shall not apply if the contractual partner has not notified Nubart of the defect in good time. Warranty is excluded for used goods.

If the replacement fails or the delivery time for the replacement is not acceptable for the contractual partner, the contractual partner may, at his discretion, demand a reduction of the remuneration or rescission of the contract (withdrawal). In the event of a minor breach of contract, in particular in the event of minor defects, the contractual partner shall not be entitled to withdraw from the contract.

The contractual partner must notify obvious defects (including complaints regarding incorrect or incomplete deliveries) within a period of two weeks from receipt of the goods. In addition, the contractual partner is obliged to notify Nubart in writing of defects that are not obvious within two weeks of discovery. Otherwise, the assertion of a warranty claim shall be excluded in both cases. Timely dispatch of the notice of defect shall suffice to meet the deadline. The contractual partner shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect. Nubart reserves the right to inspect any defects complained of on site at the customer's premises by professionally qualified employees.

If the contractual partner chooses to withdraw from the contract due to a legal or material defect after failed subsequent performance, he shall not be entitled to any additional compensation claim for damages due to the defect. If the contractual partner chooses to claim damages after failed subsequent performance due to a defect for which Nubart is responsible and if the goods remain with the contractual partner, the damages shall be limited to the difference between purchase price and value of the defective goods, unless Nubart can be accused of malice.

Only the product description of Nubart shall be deemed agreed as the quality of the goods. Public statements, praise or advertising by the manufacturer or third parties do not constitute a contractual description of the quality of the goods. In the event of minor deviations of the goods, the contractual partner shall in particular not be entitled to a reduction of the purchase price.

The contractual partner's claims for damages due to a defect shall become statute-barred one year after delivery of the goods, unless Nubart can be accused of malice.


3) - INTANGIBLE GOODS

3.1 - Service level agreement for Nubart’s CMS

Nubart follows a zero-downtime approach and the necessary redundancy and automated tests have been established at every level of Nubart’s infrastructure. Therefore Nubart guarantees that its visitor guidance and monitoring system will be perfectly functional 99,9 % of the time, except for any unavailability caused by circumstances beyond Nubart’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Nubart’s employees), Internet service provider failures or delays, or denial of service attacks.

In the event of a downtime affecting the functionality of the audio guide due to Nubart’s technical failure of more than 20 consecutive minutes, the contractual partner may, at his discretion, demand a reduction of the remuneration or rescission of the contract (withdrawal). In the event of a minor downtime of less than 20 consecutive minutes, the contractual partner shall not be entitled to withdraw from the contract.

Nubart’s audio cards act as a key that provides a controlled access to a digital web-app and require the use of a smartphone. Nubart’s web-app follows the principle of progressive enhancement in order to ensure the maximal reach. This means that the basic functionalities are available using any browser or internet connection, whereas more nuanced and technically rigorous layers of presentation and features are added progressively only if the end-user's browser/internet connection allows it.

Nubart follows a permanent monitoring of all the errors of use due to incompatibilities with certain models of mobile, operating system or browser, establishing the pertinent diagnoses and implementing ways of solution. However, Nubart cannot guarantee that occasional malfunctions will not occur, generally due to the use of very old or uncommon smartphones or browsers.

Nubart’s audio guide tracks are streamed by default, but for facilities with bad connectivity Nubart also offers an optional offline-mode. Nubart cannot guarantee an exhaustive functionality of its offline-mode, since with the current state of the art only about 95 % of browsers are compatible with the very advanced technology used for Nubart’s offline-mode. When our system detects a browser that is not compatible with the offline mode, the audio guide issues a warning and switches automatically to Nubart’s standard streaming-mode.

The contractual partner agrees on providing a permanent report of the detected incompatibilities by reporting the problem and providing the serial number or the alphanumeric code printed on the card to Nubart, so that Nubart can diagnose the specific problem on its system-logs, detecting the smartphone and browser that has been used and possibly find a correction or workaround to prevent future malfunctions. Nubart agrees to provide a regular feedback to the contractual partner about detected incompatibilities and the measures taken to overcome them.

Nubart may agree on providing a direct access to it’s CMS or even to provide a clone of it’s CMS to the contractual partner. Such service would be subjected to a separate special license-agreement.

3.1.1 - Data reports

Nubart registers anonymous usage data for its audio guides, like country of origin of the visitor, language of the visitor, total listened minutes, used device, most listened tracks and others. Nubart agrees to provide without previous requirement to the contractual partner a full data report once a month in the case of permanent exhibitions, or one report at the end of a temporary exhibition. Additional data reports will only be provided by Nubart at the express request of the contractual partner and may be invoiced separately. Contractual partners licensed with a direct access to Nubart’s CMS can access data reports without restriction.

By default, Nubart currently sends the data reports in PDF format by e-mail. However, Nubart reserves the right to allow another mode of access to these data in the future, such as access to a digital dashboard. Should Nubart provide this type of autonomous access to the contractual partner, Nubart will not be obliged to continue to send proactively the regular data reports.

Nubart is constantly innovating in order to provide the best possible experience for its users. The contractual partner acknowledges and agrees that the form and nature of the data reports which Nubart provides may change from time to time without prior notice, always with the aim of improvement.

Nubart reserves the right to archive usage-data older than one year. If the contracting party wishes to obtain a usage report that is more than one year old, this request may be subject to surcharge.

All data collected by Nubart in the data reports are anonymous. Nubart guarantees that the data compiled on the reports are GDPR-compliant.

3.1.2 - Feedback form

Nubart includes a feedback form in the digital content of its visitor guidance system that allows the users to provide voluntarily some information requested by the contractual partner. The answer or no answer in this form has no effect on the functionality of the audioguide.

Nubart offers the contractual partner the possibility to choose between several standard questions for inclusion in the feedback form. Should the contractual partner wish to add a specific question that is not contained in the list, it will be at Nubart's sole discretion to incorporate it and its incorporation may be subjected to a surcharge.

Nubart offers the contractual partner the possibility that the free comments provided by users in the feedback form are sent to one or more of its staff member’s by email in real time. Nubart assumes no responsibility in the event that emails containing such information do not arrive correctly or quickly enough to the mailbox or mailboxes proposed by the contractual partner.

The request for the user’s personal data, like name, pone number or email address, on Nubart’s feedback form is not part of Nubart services. Should the contractual partner insist on requesting such data, this service will be invoiced separately and will be carried out in full compliance with the GDPR.

The answers provided by the users in the feedback form are included in Nubart’s data report.

3.1.3 - Light-Weight Web Access Control (LWAC)

Nubart owns the intellectual property of a procedure that allows the non-transferability of the unique codes printed on Nubart audio cards and a protected access to the proprietary multimedia content without requiring a login nor a registration.

This method involves the use of transactional first-party cookies or passive fingerprinting and, optionally, as a fallback, the request of an email address to provide a new access link to the content. Nubart guarantees that this process is merely functional, and that the privacy of the user is fully respected, in full compliance with the GDPR. The contractual partner will not have access under any circumstances to the emails that users have entrusted to Nubart for this functional purpose, except by legal imperative.

As an alternative to the unique QR-code that gives access to the audio guide content, Nubart offers to its users the possibility of introducing a unique alphanumeric code on a form, either under its own domains nubart.eu or nub.art, or under a domain that belongs to the customer. Nubart does not assume any responsibility for the malfunction of the cards due to problems of maintenance or access to the website enabled by the customer under his domain.

3.2 - Content

If no direct access to the CMS has been licensed, the set-up of the digital content of the audio guide is executed by Nubart. Within the limits of reasonableness and technical feasibility, the contractual partner may request changes and adaptations until the digital audioguide is completed to its satisfaction and the product can be considered delivered.

Nubart is aware that an exhibition may be subject to changes that must be reflected in the content of the audio guide. Except in cases of force majeure, Nubart undertakes to make any changes to the digital content of the audio guide free of charge and within 24 hours of receipt of the telephone or written notification, provided that such changes only affect existing content. In the event that the changes desired by the contractual partner require the production of new content by Nubart, or that more than 4 any kind of changes are required per month, this service will be invoiced separately.

3.2.1 - If the content of the audio guide is delivered by the contractual partner:

The contractual partner is solely responsible for any Content that he creates, transmits or displays while using the Nubart Services and for the consequences of his actions (including any loss or damage which Nubart may suffer) by doing so.

The contractual partner shall be solely liable if rights, in particular copyrights and commercial rights of third parties regarding images, audiovisual productions, texts, translations or voice-overs, are infringed by the execution of his order. The contractual partner shall indemnify Nubart against such claims by third parties due to an infringement of rights in this respect.

Nubart will duly honor the authorship of the scriptwriter, the photographers, the artists, the translators and the voice-over artists and will have their copyright notified in the credits of the audio guide throughout the period of use. The contractual partner agrees in providing to Nubart in due time all the necessary copyright information to make this possible.

Nubart may have no control over any web sites or resources which are provided by companies or persons other than Nubart and that shall be integrated into the digital content of the audio guide at the contractual partner’s request. Nubart does not endorse any advertising, products or other materials on or available from such web sites or resources.

3.2.2 - If the content of the audio guide is produced and delivered by Nubart:

Nubart undertakes to produce content of the highest quality and to use only screenwriters, translators and voice talents of proven reliability.

Once the script has been accepted in writing by the contractual partner, it will be considered final. Any subsequent change of the final script due to reconsiderations of the contractual partner or to mistakes not attributable to Nubart will imply a surcharge on the agreed price. This surcharge will be proportional to the effort of translations and voice recordings that may have been carried out already on the basis of the wrong script.

If the contractual partner so requests, Nubart will offer samples of the work of its scriptwriters, translators and/or speakers at any time during the production process. The contractual partner has also the right to request voice samples from Nubart’s professional voice talents and to reject the voices that do not have its approval.

3.2.3 - Copyright and ownership of content

Nubart retains title to the use license for the script, translations and voice-overs produced by Nubart until all claims arising from the current business relationship with the contractual partner have been settled in full. Once the Nubart audio guides are no longer used by the customer and the business relationship between Nubart and the customer can be considered as terminated, ownership of the content will pass to the customer. Only in exceptional cases, such as a revenue-share agreement, can Nubart permanently reserve the intellectual property of the content.

However, the authorship of the scriptwriter, the photographers, the artists, the translators and the speakers shall be duly honored, and the contractual partner accepts to have their copyright notified in the credits of the audio guide throughout the period of use.

Nubart undertakes to establish with the scriptwriters, photographers, translators and speakers the necessary agreements to obtain a permanent license to use their productions in the context of the audio guide and to be in a legal situation to transfer it to the contractual partner.


4) Permanent product improvement

The contractual partner may submit to Nubart comments or ideas about Nubart’s audio guiding and monitoring Services, including without limitation how to improve the Nubart Services or products.

Nubart undertakes to take notice and to assess the feasibility and convenience of such an idea. If Nubart considers this idea to be an effective and real improvement of its products and services, it will develop and integrate it at no cost to the contractual partner.

However, in the event that the contractual partner needs the implementation of such an idea within a shorter period of time than Nubart would require under normal conditions, or if it is an idea that Nubart does not consider a general improvement of the product, but a customized feature only desirable and suitable for the contractual partner, the development of such an idea will be the subject of a separate agreement and will be invoiced.

By submitting any Idea, the contractual partner agrees that this disclosure is gratuitous, unsolicited and without restriction and will not place Nubart under any fiduciary or other obligation, and that Nubart is free to use the Idea without any additional compensation to the contractual partner, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.


5) Publicity

Except if otherwise agreed, the contractual partner accepts that Nubart, in its sole discretion, may use the contractual partner’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to the contractual partner’s website) for the purpose of advertising or publicizing its use of the Nubart Services.

The contractual partner agrees that Nubart may provide him with notices by email, phone or regular mail, on the Nubart Services. By providing Nubart his/her email address, the contractual partner consents to Nubart using the email address to send him any notices required by law in lieu of communication by postal mail.


6) Final provisions

This contract shall be governed by and construed in accordance with the law of Spain. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply to this General Terms of Service. Nevertheless, Nubart reserves the right to choose the law applicable at the domicile of the contractual partner.

For any litigation or dispute arising from this Contract, the Courts of Barcelona shall be competent, the parties expressly waiving any other jurisdiction that may correspond to them. Nubart reserves the right to choose the domicile of the contractual partner as the place of jurisdiction.

In the event that one or more provisions of this document is or becomes void or unenforceable for any reason whatsoever, the remaining agreements and provisions contained herein shall remain in full force and effect, but the Parties agree to replace the void or unenforceable provisions with valid and enforceable provisions that come as close as possible to the intent and economic purpose of the invalid provision.

No variation, modification or waiver of provisions of this document or consent to deviations therefrom shall be effective unless it is in writing and signed by the parties and, in such case, only to the extent and for the purpose for which it is made or granted.