1.1 These General Terms and Conditions govern the use of the services and functionalities of the Testo Account ("Account") and the Testo Saveris 3 Cloud ("Cloud") between Testo SE & Co. KGaA, (hereinafter referred to as Testo) and the Customer (hereinafter referred to as the User), both together hereinafter referred to as the Parties. Account and Cloud are software services provided by Testo that are accessed by the User via the Internet.
1.2 These General Terms and Conditions apply only to Users who are companies or legal entities under public law as well as legal entities with special funds under public law.
1.3 Terms and conditions of the User that deviate from or conflict with these General Terms and Conditions shall not apply, even if Testo does not expressly object to these Terms and Conditions.
2.1 Access to the Account and Cloud requires the User to register, to create a User Account and to agree of these General Terms and Conditions.
2.2 After registration, Testo grants the User access to the Account. Access to the cloud is provided as part of the provision of hardware, software and services and, in principle, by taking out a subscription.
2.3 The user is not entitled to register an account. Testo can refuse registration without giving reasons.
2.4 The User confirms his/her registration immediately after submitting the registration data by clicking on an activation link in the e-mail address specified in the User's registration. As long as the user has not provided the required verification, the user account remains blocked. If the registration is not completed in full, Testo reserves the right to delete the incompletely registered user account.
2.5 Each user is only allowed to register once with a user account. User accounts and their contents are not transferable to other user accounts.
2.6 The User is obliged to handle his/her access data with care, not to disclose them to third parties and/or not to allow any unauthorized third parties to access the User Account by circumventing the access data. The user is liable for all activities that take place under the use of his user account and for which the user is responsible. The User shall immediately change his/her password for his/her User Account if he/she has reason to believe that the access data may have become known to unauthorized persons.
2.7 Unless otherwise agreed, the use of the Account and the Cloud does not include support and other services such as installation, customization, programming, consulting or training services, unless such service is necessary to remedy a defect in the Account and the Cloud.
3.1 The subject of the user agreement is the use of the account and the cloud provided hereunder and, if applicable, the management, evaluation and other use of data collected by Testo devices and transferred by the user to the cloud. This includes, for example, user data, measurement location and time, device information as well as future usage and function enhancements provided by Testo. The scope of services expressly does not include the Internet connection via a device and/or the connection of measuring devices of the respective user to the account and/or cloud.
3.2 The subject matter of the contract described under Clause 3.1 serves only as a description of services and contains neither quality agreements nor guarantees.
4.1 During the term of the Cloud provided by Testo, including the Subscription Term and all Change Periods (hereinafter Subscription Term), Testo grants the User a non-exclusive right of use, non-transferable and worldwide right to use the Cloud and the Cloud Content.
4.2 The User may allow authorized persons to use the Cloud. "Authorized Persons" are defined as persons at the User or its affiliates to whom the User grants their own access authorization to use the Cloud.
4.3 Testo enables the user to upload, store, create, send or display their own data in compliance with the following rules. The measurement data brought into the cloud by the user is the sole responsibility of the user. Testo does not undertake to check the user content for completeness, correctness, legality, timeliness, quality and suitability for a specific purpose. The User is otherwise not permitted (except in accordance with 4.2) to sublicense, license, sell, rent, lease or otherwise make available to third parties the use of the Account or the Cloud.
4.4 When using the Cloud, the User may not:
(a) copy, translate, disassemble, reverse engineer or otherwise modify or create derivative works of the Cloud, in whole or in part (except to the extent permitted by law); however, the documentation provided for the use of the cloud may be copied to the extent necessary for internal purposes;
(b) use the Cloud in violation of applicable law, in particular the User shall not transmit any content or data that is unlawful or has been obtained unlawfully or infringes the intellectual property rights of third parties;
(c) circumvent or compromise the operation or security of the Cloud.
4.5 For technical and factual reasons, the storage of the data for a specific purpose or for a specific period of time is not or cannot be guaranteed by Testo or ensured in any other way. In particular, the cloud is therefore not suitable for complying with retention periods under commercial or tax law. Testo is not liable for data loss in the account or in the cloud, unless there is intent or gross negligence on the part of Testo.
4.6 Testo is to be used in particular in the event of violations of No. 4.4., is entitled to refuse to post User Content and/or to edit, block or remove User Content that has already been posted without prior notice, provided that the posting of User Content by the User or the User Content itself violates these Terms of Use, Rules of Conduct or statutory provisions, or if the User has otherwise culpably violated contractual obligations. In doing so, Testo will take into account the legitimate interests of the user and choose the mildest means to avert a violation. Testo will inform the user about this measure by e-mail.
4.7 The User undertakes not to transmit any content that violates these General Terms and Conditions, applicable law or morality through content, form, design or in any other way.
4.8 Testo or Testo's affiliates may create analyses that partly use technical user data and information derived from the user's use of the cloud, as described below (hereinafter referred to as analyses). The analyses anonymize and aggregate information and are treated as cloud content. Unless otherwise agreed, the personal data contained in the User Data will only be used to provide the Cloud to the User. In particular, the analyses can be used for the following purposes:
a) Product improvement (in particular product features and functions, workflows and user interfaces) and development of new Testo products and services)
b) Improving the allocation of funds
c) Internal requirements planning
d) Training and development of machine learning algorithms (AI and AI)
e) Improvement of production performance
f) Verification of security and data integrity
g) Identification of industry trends and developments, creation of indices and anonymous benchmarking
4.9 Testo may specify further rules for the transmission of User Content.
4.10 By transmitting data to the cloud, Testo becomes the sole owner and holder of all relevant rights to the data. If the data in the cloud is personal data, Testo undertakes to use it only in anonymised form.
4.11 The User guarantees that the data transmitted in the Cloud is free of any rights of third parties and that the User owns all rights and/or licenses to the data uploaded, stored, created, sent or displayed by the User in the Cloud.
4.12 The user is entitled to use the data uploaded to the cloud (non-exclusive right of use). The cloud content may only be accessed and displayed online for the user's own purposes during the term of the user contract. The User is prohibited from reproducing, distributing and/or publishing Cloud Content.
4.13 The User may only use the Cloud Content for its own internal business purposes. Any further advertising use of the available cloud content is prohibited.
All rights to the account, the platform and the cloud are exclusively owned by Testo and are protected by copyright or other intellectual property rights.
6.1 The User may use the Account as long as he/she has a valid User License and/or a corresponding User Account. Access to the cloud is generally possible during the term of the subscription.
6.2 In accordance with the following provisions, Testo reserves the right to amend the terms and conditions, provided that this change is reasonable for the user, taking into account the interests involved. This is particularly the case if the respective change does not represent a significant legal or economic disadvantage for the user. In addition, the User will be informed by e-mail before any change to these Terms and Conditions with reasonable notice, no later than four (4) weeks before they take effect. The User may object to the changes in writing or by e-mail with a notice period of two (2) weeks from receipt of the notification of the change. The changes will be an integral part of the contract without objection. In the notification of change, Testo will point out the consequences of the objection. In the event of a timely objection, Testo shall be entitled to block the User's account or access at the time the change takes effect.
6.3 Testo is entitled at any time to further develop, change or supplement the Cloud in part or in full. Testo will inform the user via e-mail at least four (4) weeks before they take effect of significant changes relevant to the contract . The User may object to the changes in writing or by e-mail with a notice period of two (2) weeks from receipt of the notification of the change . The changes will be an integral part of the contract without objection. In the notification of change, Testo will point out the consequences of the objection. In the event of a timely objection, Testo shall be entitled to block the User's account or access at the time the change takes effect.
6.4 Testo always provides solutions that are as technically up-to-date as possible. For reasons of technical progress, security, technical availability, as well as for reasons of the stable operation of the platform and the integrity of our systems, Testo reserves the right to switch off or change individual functions, applications and programs in the cloud, provided that the contractual purpose underlying the use of the cloud is not impaired and the user can reasonably be expected to make the change. If possible, Testo will offer the User improved alternatives in each such case, insofar as it is within Testo's sphere of influence. Changes to existing functions or the provision of new functions are integrated by Testo in so-called software releases.
6.5 The User must comply with appropriate security standards for the use of the Cloud by the Users authorized by him. The User will not carry out or approve any penetration tests of the Cloud without the prior consent of Testo. User is solely responsible for determining the suitability of the Cloud for its business processes or those of its Authorized Users and for complying with all applicable legal requirements relating to User Data and its use in the Cloud. The User must provide the necessary cooperation in connection with the provision of the Cloud Services by Testo at his own expense, such as infrastructure and telecommunications facilities for access to the cloud. The cooperation of the user is a necessary prerequisite for the proper fulfilment of Testo's obligations. The User shall bear all consequences and costs resulting from the breach of his obligations.
7.1 Testo strives for a high level of availability of the platform. Periods of planned and duly announced maintenance work, as well as all maintenance work that is urgently necessary through no fault of Testo and carried out without proper notice, are not taken into account for the determination of the availability time.
7.2 Testo will take and maintain appropriate technical and organisational measures to protect the data processed by Testo in the context of cloud use.
The following additional regulations apply to the use of the cloud in connection with Testo Food Solutions:
8.1 The User will be informed of critical events (e.g. the loss of the appropriate refrigeration temperature for the storage of food) by means of an alarm function via a mobile app or by SMS or by e-mail (must be set up).
8.2 According to the current state of the art, the constant availability of alarm functions via the Internet or mobile networks cannot be guaranteed. The proper delivery of messages by SMS or e-mail can be impaired by various factors beyond Testo's control (e.g. failure of transmission lines, failure of web servers or spam filter rules of the receiving servers, failure of the mobile network)
8.3 Testo therefore provides the alarm function as a service that the user can use at his own risk, without Testo being able to assume any liability or warranty for the proper functioning of the alarm functions. Testo is not liable for damage resulting from late or non-delivery of an alarm.
8.4 The alarm functions are used to detect process and system errors that should not occur in normal operation and usually lead to remedial action by the user. In the event of a disproportionately high number of alarms (more than 100 alarms per month and location), Testo assumes that the product has been misconfigured or used improperly. In such cases, Testo reserves the right to restrict the alarm functions, limit the transmission of alarm messages or charge the user additional costs. If Testo determines that higher costs are incurred by forwarding alarms to numbers in third countries and informs the user of this, the user is obliged to make changes to the system immediately. Otherwise, Testo is entitled to restrict the alarm functions, limit the transmission of alarm messages and/or charge the user additional costs.
9.1 Testo analyses and rectifies errors in the cloud in accordance with recognised standards. "Error" for the purposes of these Terms is any disruption of a function of the Cloud reported by the User, insofar as the disruption
- significantly limits the usability of the cloud, or
- causes corruption or loss of data within the platform.
9.2 In the event of serious errors, Testo will endeavour to remedy them within a reasonable period of time.
9.3 Liability for defects in relation to the Account and/or the Cloud requires compliance with specified technical system requirements. The user's network must be protected from unauthorised access by means of appropriate security measures in accordance with the current state of science and technology.
9.4 If, at the request of the User, Testo has adapted its service with regard to software, components of third parties or the User, or has integrated it into or connected to Testo products, the responsibility for the technical and legal characteristics and consequences of these adaptations or third-party components lies with the User. This also excludes Testo from liability.
9.5 Warranty claims for defects only exist on the basis of defects that are reproducible or can be described by the contractual partner in a comprehensible manner.
9.6 Functional impairments resulting from the contractual partner's area of responsibility, e.g. due to improper operation or attempts to repair the software by the user or third parties, a change of system or operating system, natural wear and tear, negligent handling, weather conditions or unsuitable chemical, physical, electromechanical or electrical influences, or due to other circumstances, shall not constitute a defect.
9.7 Software is subject to constant improvement efforts during use and therefore an update may have to be made at certain intervals. This does not represent a defect, but is a system-immanent property of software.
10.1 The use of the Account and the Cloud is at the User's own risk. Testo would like to draw attention to the fact that the absolutely error-free creation of software, in particular complex software systems, is not possible or not possible with reasonable expenditure according to the current state of the art.
10.2 If the User wishes to assert defect rights, he must immediately report discovered defects in writing in a comprehensible form. To this end, he must carry out all reasonable necessary measures to identify, limit and document deficiencies. These generally consist in the provision of appropriate information, e.g. defect reports, system logs, memory extracts, affected input and output data, intermediate and test results. If a claim exists due to a defect at the time of transfer of risk, the remedy of the defect may include that Testo first provides the user with reasonable options for avoiding or circumventing the effects of the defect ("workaround"). The request for subsequent performance can be made at Testo's discretion by means of a rectification or, in the case of subsequent delivery, also by updates or punctures.
10.3 After refusal or final failure of subsequent performance (at least two subsequent performance attempts per defect), the user has the right to withdraw from the contract or to reduce the remuneration. The right to remedy the defect itself and to demand reimbursement of the necessary expenses is excluded.
10.4 If services are provided by Testo during the search for or elimination of defects to which it is not obliged (e.g. by searching for an undetectable defect or a defect that does not originate from Testo's area of responsibility), additional remuneration may be charged for this, depending on the effort. The entitlement to remuneration does not apply if it was not apparent to the user that there was no defect.
10.5 The User's claims for defects shall become time-barred after one year from the date of the User's knowledge of the defect, unless the defect was fraudulently concealed or is based on gross negligence on the part of Testo. Claims by the User for defective rectification by Testo shall become statute-barred after one year from the date of acceptance by the User. Improvements by Testo do not cause the limitation period to start again.
10.6 If the user receives updates or new versions of software outside of charge free of charge, this shall be done without any warranty of his own. However, new software versions free of charge do not affect any liability claims for defects and their limitation periods with regard to the originally acquired software version.
11.1 Testo is liable in accordance with the statutory provisions
in the event of intent and gross negligence,
in accordance with the provisions of the applicable product liability laws,
in the event of injury to the life, body or health of a person.
11.2 Testo shall not be liable for indirect, incidental or consequential damages, regardless of the legal grounds, including loss of profit or goodwill, loss of work or claims attributable to a malfunction of the cloud.
11.3 In the event of negligently caused property damage and financial loss, Testo shall only be liable in the event of a breach of a material contractual obligation, but limited in amount to the damages foreseeable and typical of the contract at the time of conclusion of the contract; essential contractual obligations are those whose fulfilment characterises the contract and on which the user may rely.
11.4 Testo's liability in the event of negligent breach of a material contractual obligation proven by the commercial user for all cases of damage occurring in the same contract year shall be limited as follows:
The maximum liability amount per contract year is a maximum of 5,000 euros.
If the maximum liability amount is not reached in a contract year, the maximum liability amount shall not increase in the following contract year. A contract year in the above sense is the first period of twelve months from the date of provision in accordance with the contract and each subsequent twelve-month period.
11.5 In all other respects, liability is excluded.
11.6 Statutory limitations of liability that deviate from the above liability regulations in favour of Testo remain unaffected.
11.7. The above limitations of liability shall also apply in the event of the fault of a vicarious agent of Testo as well as for the personal liability of Testo's employees, representatives and organs as well as for claims for reimbursement of expenses.
11.8 All claims against Testo arising from contract, tort or other loss of confidence shall become time-barred after one year, unless there is intent on Testo's part. The regular limitation period begins at the end of the year in which (i) the claim arose and (ii) the creditor becomes aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware of them without gross negligence, unless otherwise stipulated.
12.1 The Parties shall treat all Confidential Information to the same extent as their own Information and shall maintain no less than an appropriate standard of care. The parties will take all necessary measures to protect information that has become known to them from misuse, unauthorized access by third parties, duplication, use, unauthorized access and use, and to control access to any impersonations, copies or other reproductions. Confidential Information of the other party may only be disclosed or disclosed to third parties who are subject to confidentiality obligations as set forth herein and only to the extent necessary to enable the receiving party to exercise its rights or perform its obligations (need-to-know principle).
12.2 Confidential information within the meaning of this Agreement means, regardless of the storage medium and the manner in which knowledge is obtained, all business, commercial, financial, technical or other facts, documents, documents (also in the technical sense), plans, films, templates, production and procedural processes, workflows, lists, organizational charts, data flow plans, evaluations, internal regulations, or other processes of any kind that are relevant to the respective Contracting parties of business interest are known within the framework of the service. Confidential Information also includes all copies made thereof, materials and data created by yourself, and all extracts and summaries thereof.
12.3 Excluded from the duty of secrecy are information that:
were public knowledge or common knowledge at the time of receipt,
have become apparent after receipt through no fault of the receiving party,
were already known to the receiving party at the time of receipt, and/or
become known after receipt of the receiving party by an authorized third party, and/or
independently developed by an employee of the other contractual partner who did not have access to the confidential information communicated.
12.4 Insofar as Testo or the User invokes the existence of one of the above exceptions, the User shall have the burden of proving that one of the above exceptions has been met.
12.5 A transfer to third parties is only permissible in individual cases with the prior written consent of the other contracting party. In this case, the third party is obliged to confirm the non-disclosure agreement as binding for itself by signing. Any opening, processing or use of data and information for other purposes is prohibited.
12.6 The User and Testo may not use the name of the other party in public without the prior written consent of the other party. However, Testo is entitled to use the User's name in user lists (reference lists) or in quarterly discussions with its investors or at the times mutually agreed by the parties as part of its marketing efforts (including reference meetings and success stories as well as press reports). Testo may share information about the User with its affiliates for marketing and other business purposes. To the extent that this includes the provision and use of contact information of the user's contact persons, the user will obtain the appropriate permissions, if necessary.
13.1 If legally required, Testo and the User shall conclude an order data processing agreement.
13.2 Testo processes personal data of the user in connection with the provision of the cloud service. The processing is carried out exclusively for the performance of the contract in accordance with Art. 6 lit. b) GDPR. The data will not be passed on to third parties. The personal data will be stored for a further 12 months for the duration of the contract and for liability and warranty claims beyond the end of the contract and will then be completely deleted. In all other respects, our data protection notice, which can be accessed at www.testo.com/de-DE/unternehmen/datenschutz, applies.
To host the platform, Testo works with certified IT service providers. In addition, Testo makes sure that it only works with subcontractors who meet the state of the art and who are bound by the same rules of confidentiality and data protection as Testo has towards the user.
15.1 Should any provision of these General Terms and Conditions be or become invalid in whole or in part, the remaining provisions shall not be affected.
15.2 Changes or additions to the above General Terms and Conditions must be made in writing. The amendment or cancellation of the written form requirement must also be in writing.
15.3 German law shall be deemed to have been agreed upon to the exclusion of UN law. The place of jurisdiction is Freiburg im Breisgau.