Terms of Use

Terms of use for DESMA SmartConnect4.U – Ecosystem

1. Scope / Definitions / Changes Terms of Use
   
   • These terms of use shall apply to all contracts for the use of the web application SmartConnect4.U – Ecosystem between us, Klöckner DESMA Elastormertechnik GmbH, An der Bära, 78567 Fridingen and companies as a natural or legal person or a partnership with legal capacity within the meaning of Section 14 of the German Civil Code (BGB), which acts in the exercise of its commercial or independent professional activity, as well as vis-à-vis legal persons under public law and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB) (hereinafter referred to as “user” and together as “contracting parties”).
   • Amendments or supplements, as well as terms and conditions of use of the user that are contrary to or deviate from these regulations, shall only apply if we have expressly agreed to them in writing. If the user does not agree with them, he must notify us immediately in writing.
   • The user will be informed of any changes to these terms of use at least in text form. In the event of an announced change to the Terms of Use, we will separately inform the user of the right of termination and the legal consequences of a non-declared termination. If the user does not agree with the changes, they have an extraordinary right of termination within 6 weeks after receipt of the notification with a notice period of 4 weeks to the end of the next month. For the validity of the termination to be effective, it must be in text form. If the user does not terminate the contract within the above-mentioned period (for the observance of the period, the receipt by us is decisive), the changes shall be deemed agreed.
2. Subject of the contract
   • The subject of the contract is the provision of the SmartConnect4.U – Ecosystem as a web application free of charge by us to our customers as users and the granting of storage space for the exchange of documents (data) between the contracting parties for commercial purposes (hereinafter referred to as “Usage Contract”), described in more detail in the respective current service description at https://www.ecosystem.smartconnect4u.biz.

3. Registration and conclusion of the contract of use
   • In order to conclude a contract of use, a customer must be registered by us using the registration form provided. A customer relationship with us exists if at least one order of a machine has been placed by the customer within the last 10 years and the corresponding contract has been executed and or at least a service contract with us. For registration, all mandatory fields such as name, address, and e-mail address must be filled in, a user name and a password must be specified. The registration of a legal entity or a partnership can only be carried out by an authorized representative, who must be named with first name and surname.
   • At the end of the registration process, the user declares to us by clicking the “Accept” button that they accept these terms and conditions of use as part of the contract and that they wish to conclude a contract of use with us. The user will then receive an e-mail from us to the e-mail address provided with a confirmation link. If the user confirms the link within the e-mail, we will check whether a customer relationship exists with the user as defined in section 3.1. The contract of use is concluded when we confirm the existence of the customer relationship to the customer by e-mail after the check and thus activate the customer account. After receipt of the affirmative e-mail, the user can log in immediately with the customer name and password specified by them during registration.
   • There is no claim to the conclusion of a contract of use. If the application for the conclusion of a user contract is rejected, we will delete the data transmitted by the user immediately, provided that there are no storage obligations under tax and commercial law.
   • The user must provide truthful information when entering the required data. If the data changes during the execution of a concluded user contract, the user is obliged to inform us of these changes immediately.  If the user fails to do so or provides false data from the outset, we are entitled to withdraw from the concluded user contract free of charge.
4. Scope of services / functional areas / requirements for use / exclusions
   • After the conclusion of the user contract, the user receives the technical possibility and the authorization to upload, store and download documents for exchange between the parties.
   • The user is entitled to invite employees and freelancers of their company (in particular legal entities, partnerships, sole traders) as further authorized users (hereinafter also referred to as “co-users”). The invited co-user must also register and accept these Terms of Use. With the authorization of use communicated by us via e-mail, the access will be activated for the co-user. With the end of the user contract, the user authorization of the co-user also ends. The user is obliged to inform us immediately if a co-user leaves their company.
   • The transfer point for our contractual services is the router exit to the Internet of the data center we use. The connection of the user to the Internet, the maintenance of the network connection, and the procurement and provision of the hardware and software required on the user’s side are not part of the services we owe.
   • The respective current scope of functions of the web application, in particular, the setup of private and public chat channels as well as and the technical system requirements are listed in its current service description on our website. Due to the use of different and outdated web browsers, the visual presentation of the contents of the web application may vary. For an optimal visual presentation, we recommend the user to use the current web browser version of their provider (e.g. Google Chrome, Apple Safari, or Mozilla Firefox).
   • The user is informed in time about changes in the web application.
   • We reserve ourselves the right to expand the web application with additional functions (upgrades) that are subject to an additional payment. The obligation to pay begins as soon as the user makes use of the offer to extend the functions and the additional function is activated.
   • When the web application is activated for use, we also provide the user with application and user documentation consisting of a help function in German language, which can be called up via the user interface and allows explanations of the web application’s functionalities to be called up and printed.
   • We are permitted to use subcontractors for the provision of the contractual services. The use of sub-contractors does not release us from our sole obligation to the user to fully perform the contract.
5. Rights of use for the SmartConnect4.U – Ecosystem web application
   • We as licenser grant the user, subject to the condition precedent of compliance with the provisions on rights of use in accordance with this clause 5, the simple, non-transferable and non-sublicensable right, limited to the term of this usage agreement, to use the web application to the agreed extent in their company via the Internet exclusively for their own commercial purposes as Software-as-a-Service after activation in accordance with the terms of use. No further transfer of the web application to the user shall take place. If new program versions (updates) or functional extensions (against an order or additional payment) of the contractual web application are provided by us during the term of the contract, the aforementioned right of use shall also apply.
   • The user is not entitled to use the Web Application outside their company or for any other than their own commercial purposes or to allow third parties not belonging to his company to use the Web Application or to transfer it temporarily or permanently to third parties.
   • The user may only reproduce the web application as far as this is necessary for the intended use. Necessary reproduction includes loading the web application via the Internet into the main memory of the hardware used by the user to use the web application modules.
   • The user fully acknowledges our rights and those of the owner of the rights to the web application and undertakes not to extract the content contained in the web application (such as texts, graphics, font files, and other content) from the web application under any circumstances and/or use it for purposes other than those intended within the web application during its execution.
   • The User further undertakes not to make any changes/manipulations to the Web Application or reverse engineer it (prohibition of reverse engineering), not to decompile the Web Application, and not to bypass any security functions or copy protection unless the User is permitted to do so by law.
6. Allocation of storage space/data storage
   • A further service is a possibility for the user to store the documents uploaded for exchange with us on the storage space provided by us.
   • We ensure that the stored data can be accessed via the Internet. We only owe the provision of storage space for the use of the web application and for the exchange of documents of the user with us. We do not have any obligation to keep the data transmitted and stored by the user.
   • The user is not entitled to give this storage space to a third party for use.
   • We ensure that the user’s data stored on the storage space provided by us is adequately protected against data loss or damage, in particular through regular backups, virus scanning, and installation of a firewall and that the data is protected against unauthorized access by third parties.
7. Availability/interruption or impairment of accessibility
   • Adjustments, installation of new program versions, changes, and additions to the contractual web application as well as measures that serve to identify and eliminate malfunctions will only lead to a temporary interruption or impairment of accessibility if this is absolutely necessary for technical reasons.
   • The availability of the web application and the storage space within the scope of this user agreement for the usage times on working days Mo. to Fr. from 8 a.m. to 5 p.m. (except on December 24 and 31 and on public holidays at our company headquarters) is 99.6% on an annual average.
8. Obligations of the user to cooperate
   • The user will establish the data connection via the Internet between their company and the data transfer point defined by us at his own expense. The operation and maintenance of this data connection is the sole responsibility of the user.
   • The user is obliged to meet the system requirements necessary to use the web application. In the course of the further development of the web application, we are entitled to adapt these system requirements. The user will be notified of any changes to the system requirements six (6) weeks prior to the effective date of the conversion of our website and by e-mail.
   • The user undertakes not to upload any illegal content that violates the law, official regulations or the rights of third parties, to store such content on the storage space provided or to use the web application in any other way that violates the law. In order to exclude any misuse, the user must also ensure that by transmitting content (texts, images, photos, videos, names, trademarks, etc.) they do not violate any legal regulations or the rights of third parties (e.g. violation of copyrights and trademark rights, violation of personal rights, and violation of competition law).
   • If the user transmits data – in whatever form – for storage on the storage space provided by us, the user shall make backup copies of this data.
   • The user is obligated to keep the access data provided to them secret from unauthorized third parties and to keep it safe from access by third parties, so that misuse of the access data by third parties is impossible. As soon as the user has indications that the access data has been obtained unlawfully by a third party or could be misused, the user is obliged to inform us immediately.
   • The documents uploaded by the user in the storage space designated for them may be protected by copyright and data protection laws. The user hereby grants us the necessary rights to provide the services owed under the contract. We are also entitled to keep the documents in a computer center for failure.
   • User activities aimed at rendering the Web Application non-functional or at least making its use more difficult are prohibited and may be prosecuted under civil and criminal law. In particular, measures that can influence the physical and logical structure of the contractual services are prohibited.
9. Contract period/Termination
   • The contract of use has a term of 2 years. It shall be extended by 1 year in each case unless it is terminated with a notice period of 6 months to the end of the contract period.
   • In all other respects, the right to terminate for good cause remains unaffected.
   • For a termination to be effective, it has to be in text form.
10. Data deletion
    • The user remains the sole owner of the data uploaded and stored on the storage space provided by us. Before the termination of the user contract, the user has the possibility to delete their data. This requires a written request.
    • We are entitled to delete the user data still existing after the end of the contract after a reasonable period of at least 4 weeks.
11. Liability for damages and reimbursement of expenses
    • We shall be liable to the user in accordance with the statutory provisions if the user asserts claims for damages or reimbursement of expenses based on intent on our part, in cases of culpable injury to life, body, or health or in the case of claims under the Product Liability Act. This shall also apply in the case of fraudulent concealment of a defect.
    • In the event of gross negligence, we shall be liable to the amount of the foreseeable damage that was intended to be prevented by the breached obligation.
    • In the case of an existing contract of use free of charge, our liability to the user for slightly negligent damage is excluded.
    • In the event of data loss, we are only liable for the damage that would also have occurred if the user had backed up the data in accordance with the contract.
    • Any further liability on our part for damages or reimbursement of expenses is excluded regardless of the legal nature of the asserted claim.
    • Insofar as our liability is excluded or limited in accordance with the foregoing, this shall also apply to the liability of our executive bodies as well as our vicarious agents and assistants, in particular employees.
12. Responsibility for data and content
    • If a third party commits an infringement of rights by the documents uploaded and/or stored by the user, we are entitled to block the documents completely or provisionally if there are significant doubts about their legality or legal conformity. In this case, we will ask the user to stop the infringement or to demonstrate the legality or legal compliance of the documents within a reasonable period of time. If the user does not comply with this request, we are entitled, without prejudice to further rights and claims, to terminate the contract for good cause without notice.
    • Should the documents uploaded and/or stored by the user lead to violations of law or the rights of third parties, the user shall indemnify us on first demand from all claims, fees, fines, and other reasonable costs resulting therefrom and shall bear all resulting reasonable expenses from us. This also includes the reasonable costs for legal defense by us.
13. Force Majuere
    • As long as we are prevented from rendering our services due to an unforeseen event which we cannot avert even by observing reasonable care, in particular natural disasters, energy supply or operational disruptions, official intervention, legal prohibitions, pandemics, epidemics, industrial action or other cases of force majeure, the service deadlines shall be deemed extended by the duration of the hindrance and by a reasonable start-up period after the end of the hindrance (“hindrance to services”). There is no breach of duty for the duration of the impediment to performance.
    • We shall notify the user immediately of such impediments to performance and their expected duration. As long as we are unable to provide contractual services due to force majeure, the user is also released from the obligation to perform. If the force majeure lasts uninterruptedly for more than two months or if the provision of services becomes impossible for us in cases of force majeure, the user and we shall be released from the respectively owed service obligations.
14. Confidentiality/Data protection/Data security
    • The contracting parties undertake to keep secret all business secrets or other confidential information received from the other contracting party or becoming known to them during the execution of the contract. The confidential information and the documents embodying this information may not be made accessible to third parties not involved in the execution of the contract. The contracting parties shall keep and secure the information and documents in such a way that misuse by third parties is excluded.
    • Not covered by the obligation of secrecy are information and documents that are generally known and accessible at the time of disclosure or were already known to the receiving contracting parties at the time of disclosure or were later legitimately made accessible to them by third parties.
    • Within the framework of the performance of the contract, we will comply with all applicable data protection regulations – in particular the Basic Data Protection Regulation (DSGVO) and the Federal Data Protection Act. Details on data processing and the rights of the parties concerned can be found in the data protection information and the data protection declaration at https://www. smartconnect4u.biz/datenschutz/.
    • The contracting parties shall also impose the obligations under data protection law on their employees and any subcontractors employed.
15. Claims
    • Claims from contracts concluded with us may only be assigned by the user with our prior written consent.
16. Final Clauses/Applicable Law/Jurisdiction
    • Verbal collateral agreements do not exist. Amendments or supplements to the terms of use and the contracts concluded between us and the user must at least be in text form to be effective. This also applies to this text form clause. Changes that do not at least preserve the text form are invalid.
    • Should individual provisions of these terms of use be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the parties to the contract undertake to replace the invalid provision by a valid provision which comes as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the agreements.
    • The place of performance is our company headquarters.
    • German law applies to contractual relations.
    • If the user is a merchant, a legal entity under public law or a special fund under public law or if the user has no general place of jurisdiction in Germany or, after conclusion of the contract, has relocated his registered office abroad, the exclusive place of jurisdiction for disputes before ordinary courts shall be our principal place of business. We shall also be entitled to assert our own claims at the court having jurisdiction over the user’s registered office.