ENDNUTZERVERTRAG
Between:
TFA Dostmann GmbH & Co. KGZum Ottersberg 12
97877 Wertheim - Reicholzheim
Germany
Location: Wertheim
Registry court: Mannheim
Commercial register number: HRA 570186
VAT-No.: DE146587461
Tel: +49 9342 308 - 0
Fax: +49 9342 308 - 49
Mail: info(at)tfa - dostmann.de
Homepage: www.tfa-dostmann.de
Personally liable partner: Dostmann GmbH
Location: Wertheim
Registry court: Mannheim
Commercial register number: HRB 570037
Managing Directors: Axel Dostmann, Heinz Dostmann
and the client the following service contract is concluded for the use of the website www.wh-observer.de. For cancellations or notifications, please contact us on the above address.
Please read the following terms and conditions carefully. Please select ‘accept’ to use the website. Please print or save a copy of this contract for your records.
If you do not agree with the general terms and conditions, you may not use the services of the website www.wh-observer.de. If you do not agree to these terms and conditions, you are not entitled to use the service for any purpose whatsoever.
1. SUBJECT TO THE MATTER OF THE CONTRACT
The website which we offer to you, can be currently used free of charge. We reserve the right to modifications.
2. INTENDED USE AND ORDERING PROCESS
2.1
We offer you a web page, which allows you to access online certain measured data from the WeatherHub system offered by TFA Dostmann GmbH & Co.KG, which are transmitted by appropriately equipped devices. Furthermore, we provide the required amount of memory space, from which the corresponding data is retrieved. It is possible and intended that in the future, further data can also be collected and displayed via the website. It cannot be guaranteed that all new app forms can be accessed in each case on the previously used hardware.
By accessing the website, installing or using the hardware, a contract is concluded with us. To be able to use the website, you also need to separately acquire the hardware for data collection as well as a gateway that records the measured data and sends it to our cloud services.
2.2
The service is planned for an indefinite period, but we ensure that we support the website and the cloud services provided by us for at least 24 months.
2.3
Furthermore, messages may be sent to the users via the mail addresses specified in the registration or in the settings, by means of which, for example, the exceeding or subtraction of certain values set by the user is notified. However, we cannot guarantee the full functionality of such communications at any time as this is subject to circumstances that cannot be influenced by us, such as the availability of the user, the functionality of the devices used by the user and an active Internet connection.
The web service is not suitable as an alarm system or for monitoring life-sustaining functions, personal body data or high-quality systems. A liability for damages arising from the fact that the user is not or not in time being informed of the exceeding of thresholds is excluded under any viewpoint.
3. COPYRIGHT AND OWNERSHIP
3.1
The website, including all expert knowledge, all concepts, logic and specifications, are the property of TFA Dostmann GmbH & Co.KG and its licensors and are protected by copyrights and industrial property rights internationally.
3.2
This Agreement does not grant you any license or rights to our logos and trademarks. You agree that you will not remove any features for product identification or copyright notices.
3.3
You acknowledge and agree that we are entitled to the right and ownership in all changes that you make to the website, according to the provisions stated later in this contract.
4. RIGHTS AND LIMITATIONS
4.1 Duration
This Agreement shall apply from the moment of your acceptance and shall remain in force until terminated in accordance with Clause 11 below. The general terms and conditions relating to liability, proprietary rights and confidential information remain in force beyond the expiration or termination of this contract.
4.2 Rights
We grant you a non-exclusive right to use the Web Services for the duration of the term, which is the subject of the general terms and conditions contained in this contract. You may:
a) use the web service for your internal business purposes;
b) in so far as the following Clause c) which refers only to documentation, make a copy of the website or a part thereof for data backup purposes, provided that you reproduce accordingly the copyright and other proprietary notices on any backup copy of the page. This restriction shall not prevent you from creating backup copies of your data or archiving it;
c) use, copy, adapt and modify the documentation exclusively for your internal business purposes. You may transfer your rights to permanently use of the website to another person or another company, provided that you hand over all copies of the website, uninstall or terminate the service accordingly, inform us prior to such transfer of all the contact details of the recipient and that the recipient confirms to us in writing prior to the transfer that he shall submit to these general terms and conditions in the contract.
4.3 Limitations
You are not allowed:
a) to change or translate part of the Website, unless this is necessary to configure it based on the menus and options contained in the software and intended for these purposes; and in terms of documentation, if necessary, to produce and modify manuals and / or other documentation for your internal business purposes;
b) to sublicense, rent, sell, lend, distribute or otherwise transfer the Website beyond the extent allowed under this contract unless you have obtained from us a separate license for such purposes; for example, you may not embed the service (as a whole or in part) into another application and then distribute the application to third party before you have acquired an OEM license from us;
c) to use the website for purposes of competition with us, including, inter alia, competitive Intelligence.
5. Web service
5.1
During the term of this agreement, you are entitled to access the www.wh-observer.de website and use the cloud services provided by us.
5.2
If you need technical support, first visit the Help pages. If you cannot find a solution, please contact us.
5.3
We reserve the right to limit the number of users who can contact our technical support team.
6. WARRANTY AND INDEMNITY
6.1
We guarantee that for a period of at least ninety days after the hardware has been put into operation, that the data will be substantially available and will work according to the documentation and that the documentation adequately describes the operation of the site in all essential respects. Please inform us in writing about a breach of the warranty according to Clause 6.1 during the warranty period.
6.2
We guarantee that we will maintain the website during the term with the reasonable skill, care and caution. If you inform us in writing of a breach of the warranty under this Clause 6.2, all our obligations and all your claims exist in the following: Correction or re-execution of the service in question; or termination of the service in question.
6.3
We are obliged on demand to fully and effectively indemnify and hold you harmless with respect to any and all losses, claims, claims for damages, costs, charges, expenses and liabilities arising from lawsuits or procedures in which it is claimed that through your use, your possession, or your distribution of the services in the country in which you have your headquarter, (provided that the country in question is a signatory to the Treaties administered by the World Intellectual Property Organization (WIPO) on patents, trademarks, and copyrights), in accordance with the provisions of this contract, patents, trademarks or copyrights of third parties are infringed.
You are not entitled to this compensation claim:
if you do not notify us in writing within ten days after claims against you are raised or proceedings against you have been initiated; or
if you do not, with prior written request from us, promptly discontinue the use or distribution of the website after such claims are raised; or
if you acknowledge, without prior written permission from us, the claims raised or proceedings initiated from rights of third parties or to take any actions that could make it more difficult for us to defend the claims or proceedings; in this case, we are entitled to immediately terminate this contract via written notice to you.
6.4
We are not liable if the alleged infringement is based on the following:
change of the website by someone other than us; or
use of the website with a hardware, software or other component not supplied or licensed by us; or
use of the website in a manner other than that found in the documentation.
6.5
In the event of a claim pursuant to Clause 6.3, we have:
the unlimited discretion to decide whether we participate in any proceedings in relation to such claims or defend ourselves against it or not;
the right, if this appears necessary or desirable to us, to require that you participate in such proceedings at our expense;
the right to require that you fully cooperate in defending the claim at our expense;
the right to obtain a license so that you can use, own and distribute the website under the general terms and conditions of this contract without thereby infringing on patents, trademarks or copyrights of third parties;
the right to modify the website in such a way that it does not infringe anymore patents, trademarks and copyrights of third parties; and
the right to immediately terminate this contract via written notice to you, if we are not able to obtain a license or modify the software in a commercially reasonable manner.
You are in any case obliged to reduce your damage as much as possible.
6.6
Your sole legal entitlement and our entire liability are regulated in Clauses 6.3, 6.4 and 6.5 which arise if the service infringes the patents, trademarks or copyrights or other intellectual property rights of third parties.
6.7
You acknowledge and agree that you are responsible for all content sent to us by your devices and that you guarantee that your use of the service takes place in accordance with the relevant laws and regulations. You agree to indemnify us and hold us harmless from all claims for damages and / or losses incurred by your content, your use of the Service, or your violation of Clause 6.7.
7. EXCLUSION OF OTHER WARRANTIES
7.1
We give no guarantees or assurances of any kind beyond the explicit warranties for the performance of the service set out in Clause 6.
7.2
In addition to Clause 7.1, we also do not guarantee or represent the following: that the service meets your requirements; That the operation of the service runs error-free or uninterrupted (including without limitation due to network failures cloud problems or third-party errors and / or delays); that errors of the service will be corrected; ensure that the service detects and / or correctly identifies and / or disinfects all threats, applications (whether malicious or otherwise) or other components; that you are entitled to block or delete third-party applications; that you are entitled to decrypt, block or delete third party information.
8. LIMITATION OF LIABILITY
8.1
You agree to use the service at your own risk. In accordance to Clause 8.4 and to the maximum extent permitted by law, a disclaimer applies in our favour against you for any indirect, special, consequential or incidental damages or losses, regardless of their cause, or whether these are due to breach of contract or tort (including negligence) or otherwise, even if we have been advised of the possibility of such damages.
8.2
In addition to Clause 8.1, and in accordance with Clause 8.4, you acknowledge and agree that you are solely responsible for ensuring adequate back up of all data and that you take appropriate measures to protect your data. We assume no liability or responsibility in any way for the loss and / or the corruption of data.
8.3
We do not limit our liability in regards to fraud, death or personal injury.
8.4
Irrespective of our obligations under Clause 6.3, Clause 8.3 and all obligations which cannot be limited by the applicable law, we are liable only for your direct losses.
For property or material damages due to negligence, we and our agents are liable only for the breach of an essential contractual obligation. However, the amount is limited to typical contractual damages foreseeable at the time of the conclusion of the contract.
9. ADVERTISING
We are entitled to place advertisement in the service by ourselves or through a third party, which solely relates to the service itself, or the hardware or components to be used, which may be linked to the service.
10. DATA PROTECTION AND SECURITY
10.1
If personal data are collected in the context of the use of the service or otherwise in connection with this contract, these are stored solely for your individual support and are not shared (without your consent).
10.2
You acknowledge and agree that we may directly or remotely communicate with the devices for the purpose and without limitation to check your permissions and to make policy and configuration changes to the devices.
10.3
You acknowledge and agree that it may be necessary for us to collect and process certain information relating to you and the individual users to run the service and that such information may contain data that is confidential and / or personal and related to intellectual property rights , including and without limitation names, e-mail addresses, telephone numbers and other contact details; account username; IP addresses; usage information; infection protocols; and files that are under suspicion of malware infection. Certain services may allow you to configure the service to track or record the geographic location of the devices; block access to the devices; delete the contents of the devices and output messages via software installed on the devices.
10.4
You acknowledge and agree that we, our group companies, contractors and third parties licensors may also use certain information collected from you for our business purposes.
10.5
We act as a data processor in the case of personal data processed on your behalf for the performance of the service. We are the data controller in the case of the personal data used for our business purpose in accordance to Clause 10.3. The terms "data processor" and "data controller" are defined according to EU Directive 95/46 EC. In any case, we will process your personal data in accordance with these contract provisions, the provisions of EU Directive 95/46 EC and our privacy policy.
10.6
If we transfer or export personal data to another country, we will provide adequate protection of your personal data.
10.7
Each contracting party should take the appropriate technical and organizational measures against unauthorized or unlawful processing of personal data or its accidental loss, destruction or damage.
10.8
You agree to indemnify and hold us harmless from any liability related to your failure to comply with this Clause 10.6.
10.9
The full use of the service is associated with a personal login and registration. We only receive insofar information about the mail address used by the user, but not his personal data. We expressly reserve the right to collect personal data for the purpose of the introduction of a charge for the use of the service, even subsequently for users who have previously used the service free of charge as soon as a payment obligation arises.
11. TERMINATION OF CONTRACT
11.1
This contract and your rights thereunder terminate immediately if you fail to comply with the general terms and conditions of this contract; or you file for bankruptcy or bankruptcy petition is filed against you.
11.2
In addition to our rights under Clause 11.1, we may suspend the performance of the service with immediate effect and at any time if we demonstrably assume that your use constitutes a threat to the security of the Service.
This applies especially if a considerable amount of data is queried in a short time in such a way that there is a reasonable suspicion of a computer-controlled attack. Should customer data be lost in this context through the suspension of our service, no liability is accepted for this.
11.3
Upon termination of this contract, you must discontinue the use of this service. Documentation prepared up to that date can still be used. Within one month after the date of termination of this contract, you must send us with a written confirmation that you have met this requirement. After termination of this contract, we are entitled to delete the service via remote access and to erase all your user-defined settings, software and data from our systems.
12. CONFIDENTIALITY, CONTACT
12.1
The service may contain confidential information that is secret and of great value to us and to our licensors. You are not authorized to use or disclose this confidential information in any other manner than explicitly allowed in the general terms and conditions of this contract.
Version: 1.02 (2017-06-28)