Terms of Use for the Festo Cloud of Festo AG & Co. KG

Date: September 2018

§ 1
Scope of application; service offering

 

(1) These terms of use apply in the version that was valid when the agreement was concluded to the customer's use of the Festo Cloud of Festo AG & Co. KG, Esslingen, Germany (“Festo”) as the end user (“user”).


(2) The Festo Cloud is a web portal through which the user can use a variety of available services for his or her Festo devices and additional third-party components. With the Festo Cloud, the user can, in particular, manage Festo devices and additional third-party components connected to the Festo Cloud, as well as analyse and optimise their use (hereinafter called "services"). Detailed information on the provided services can be found in the respective specification. For the use of individual services, additional licensing conditions or terms of use may apply.


(3) Festo reserves the right to supplement services provided within the scope of the Festo Cloud or set a time limit on the use of the provided services. There is no legal claim to the perpetuation of certain services or parts.


(4) To use the services provided through the Festo Cloud, the user must register according to § 2.


(5) There is no legal claim to an interruption-free use. It is not warranted that the access to or use of the Festo Cloud services would not be interrupted or impaired in the short term through maintenance work, further developments or other issues, which could also lead to data losses. Festo will announce planned maintenance work and downtimes to the user in a timely manner. Festo aims to ensure the most interruption-free usability of the ser-vices possible. Due to technical malfunctions (e.g., power failures, hardware and software defects, technical problems in the data transmission line), temporary limitations or interruptions may however occur.


§ 2
Registration


(1) To be able to use the Festo Cloud, the user must register. To register, the user must be of age. Only commercial users are authorised to use the Festo Cloud. A use by consumers is not possible.


(2) During the registration process, the user will be asked to specify his or her access data. This data comprises the user's valid e-mail address and a password of the customer's own choosing in according with the password guidelines. During registration, the user must not pose as another person or business or use a user ID the user is not entitled to use.


(3) Insofar as this data changes within the period of use, the user must correct his or her data in his or her personal settings in the Festo Cloud immediately. If costs are incurred to Festo due to the incorrectness of such data, the user is obliged to reimburse Festo for those costs.


(4) The use of the Festo Cloud is fee-based. Within the scope of registration, the user is routed to Festo App World after registering in order to enable him or her to purchase a licensee for the use of the Festo Cloud. For the use of the Festo App World, the general terms and conditions of Festo App World apply.


(5) By submitting these registration details, the user is making an offer to Festo for the conclusion of a usage agreement of the Festo Cloud governed by these terms of use. Festo shall decide in its sole discretion whether to accept this offer. The user ceases to be bound by the offer if registration is not confirmed within a reasonable period by e-mail to the e-mail address specified in the offer or by an activation of the user profile. A contrac-tual usage agreement comes into being upon receipt of the e-mail confirmation or the activation of the account, and Festo shall activate the login access applied for by the user. Upon activation, the user is authorised to use the Festo Cloud in accordance with these terms of use. The text of the contract is stored by Festo, but cannot be accessed by the user.


§ 3
Term, termination, transfer


(1) The use of the Festo Cloud is concluded for an indefinite period insofar as Festo does not make the customer a limited offer for a specified period. In the latter case, the use extends automatically by an additional period when the initial term has expired.


(2) The user can terminate the use of the Festo Cloud at any time for the end of the respec-tive term or – if no fixed term has been agreed – for the end of a month with a term of three months to the end of the month through Festo App World or the web portal.


(3) The right to extraordinary termination remains unaffected. In particular, Festo has a right to extraordinary termination when the customer has repeatedly violated these conditions for use and has continued to violate or once more violated these terms of use despite being warned by Festo.


(4) The user is authorised to transfer his or her Festo Cloud account permanently to a subsequent user. In case of a transfer, all services enabled together with the Festo Cloud account will be transferred to the third party. The user can transfer his or her Festo Cloud account through the web portal.


§ 4
Scope of permitted use


(1) The authorisation for use is limited to the access to the Festo Cloud and the use of the respectively available services within the scope of the provisions of these terms of use.


(2) The user is responsible for the creation of the technical prerequisites required within the scope of responsibility of the user for the contractual use of the services (including, in particular, hardware, software modules (libraries) and their proper implementation, web browser and Internet access, integration of the Festo devices into the Festo Cloud). Festo is not obliged to provide consultation in regard to these technical prerequisites within the scope of these terms of use.


(3) When using devices connected to the Festo Cloud, the user must observe and comply with the respective terms of use of the devices.


(4) It is further the responsibility of the user to guarantee that his or her access data and the Festo Cloud is used solely by the user or by someone authorised by the user. If there is any reason to believe that unauthorised third parties have gained or will gain knowledge of the access data, Festo must be notified immediately.


(5) Festo informs the user that the usage can be monitored within the permissible legal scope or if a legal monitoring obligation exists. This includes the logging of IP connection data, if pertinent, and the analysis of this data in case of a concrete suspicion of a violation of these terms of use and/or existence of an otherwise irregular conduct or criminal act.


§ 5
Use of content available through the Festo Cloud


(1) The content available through the Festo Cloud is mainly protected by copyright, brand and competition law or other proprietary rights and is the property of Festo or other third parties that provide the pertinent content for use by the user through the Festo Cloud. The compilation of the content is also copyright-protected as such. The user is only authorised to use this content in accordance with these terms of use and the functionalities and services predetermined in the Festo Cloud.


(2) If a use beyond the uses above is not expressly permitted in these terms of use or in separate conditions of individual services or if such use is not enabled by a corresponding functionality in the Festo Cloud,
a) the user may use the content provided through the Festo Cloud only for his or her own internal business purposes. Any commercial use going beyond that is prohibited. This right of use is limited to the duration of the contractual use of the Festo Cloud,
b) the user must not edit, change, translate, show or present, publish, exhibit, reproduce or disseminate (including the use of so-called iFraming) the available content partially or in its entirety. It is also prohibited to remove or change any copyright notices, logos or other labels or protection notices.
(3) The user is authorised to download content for sending by e-mail or printing only insofar as a corresponding possibility is available to the user as a function.
(4) The user has a temporally unlimited, non-exclusive right of use to content the user has properly downloaded, sent and/or printed for his or her own internal purposes provided that a deviating use has not been expressly permitted in individual cases. Otherwise, all rights to the content remain with the original holder of rights.
(5) The mandatory legal rights (including reproduction for private and other uses according to § 53 UrhG [German Copyright Act]) remain unaffected.


§ 6
Blocking of access to the Festo Cloud


(1) Festo may, in its sole discretion, temporarily or permanently block the user's access to the entire Festo Cloud or to certain areas if there are firm grounds for believing that the user is violating or has violated these terms of use and/or applicable laws or if Festo has other legitimate interests in blocking access. When making a decision on the blocking of access, the legitimate interests of the user are reasonably taken into consideration. Insofar as the user has repeatedly violated these terms of use despite being warned, Festo reserves the right to block access permanently.


(2) In cases of temporary or permanent deactivation, the user's login authorisation will be blocked and the user will be informed by e-mail.


(3) In the case of temporary block, the login authorisation will be reactivated upon expiry of the blocking period or definitive elimination of the reason for the blocking and the user will be informed by e-mail accordingly. A permanently deactivated login authorisation cannot be restored. Permanently blocked persons are permanently blocked from the use of the Festo Cloud and may not reregister. With the permanent blocking of the user, Festo has the right to an extraordinary termination of the user's right to use.


§ 7
Limitations on liability


(1) Within the scope of use of the Festo Cloud by the user, Festo is liable according to the following provisions:
a) Festo is liable without limitations in case of intentional damage or damaged due to gross negligence.
b) For damage arising from the non-observance of any written guarantees in the scope covered by the purpose of the guarantee and recognisable by Festo when the guarantee was provided.
c) In cases of product liability according to the German Product Liability Act (“Produkt-haftungsgesetz”).
d) In cases of simple negligent violations of only non-essential contractual obligations, Festo is not liable. Otherwise, Festo's liability for simple negligently caused damage is limited to damage whose occurrence is typically expected within the scope of the respective contractual relationship (contract-typically foreseeable damage). This also applies in case of negligent violations of obligations on the part of our legal rep-resentatives, executive employees and/or our simple vicarious agents.
e) If the user is a businessman / company, the parties agree that the contracts typically foreseeable damage from violations of obligations of these terms of use is limited to the sum of the paid usage fees within the last twelve (12) months.
f) The existing limitation of liability does not apply in case of fraudulent intent, physical injury, violation of guarantees and product liability claims. Legally provided liability limitations that deviate from the afore mentioned liability provisions in Festo's favour remain unaffected.
g) There is no liability going beyond that described above on the part of Festo. For services provided by Festo based on rental agreements, fault-based liability for defects existing at the conclusion of the contract is excluded in particular.


(2) Festo is not liable for damage arising due to the improper use of the devices connected through the Festo Cloud.


(3) Insofar as the liability of Festo is excluded or limited according to these provisions, the same applies to the liability of organisations and vicarious agents, especially the employees of Festo.


§ 8
Change of these terms of use


(1) Festo reserves the right to modify these terms of use at any time with valid effect even within an existing usage agreement. The user will be notified of any such modifications by e-mail at least 30 calendar days before the time when the modifications are planned to come into effect.


(2) Unless the user objects within 30 days of receipt of the notification and continues to use the services beyond the objection deadline, the modifications shall be deemed agreed and valid upon expiry of that period. If the customer objects, the usage agreement shall continue under the previous terms. If the user objects, Festo reserves the right to terminate the usage agreement at the next possible point in time. The notice of modification will inform the user of his or her right to object and the consequences.


§ 9
Change in services and/or prices


(1) Festo is authorised to change the services provided through the Festo Cloud at any time if these changes are required because advance performances required for the rendering of the service are no longer available at all or according to appropriate conditions, if the changes in question are slight changes to the provided services, if the changes are advantageous to the user, or if the changes correspond with the usual market conditions for comparable services. Changes are considered to be approved if the user does not terminate the terms of use in writing or by e-mail within 30 days of the notification of the change. The user will be informed specifically of the terms of termination in the notification of the change.


(2) Festo will announce price changes in a timely manner so that the user can properly terminate the contractual relationship whilst observing the contractually agreed termination period before the new prices come into effect. Insofar as the user does not terminate af-ter being informed about the new prices and continues to use the fee-based services af-ter the prices come into effect, the price change is binding for the contractual parties.


§ 10
Final provisions


(1) These terms of use are governed by the laws of the Federal Republic of Germany to the exclusion of the principles of conflict of laws.


(2) All disputes arising from or in connection with these terms of use shall fall within the sole jurisdiction of the courts at the location where Festo has its registered office. Festo is, however, entitled to take legal action against the user at the latter's general place of jurisdiction or before any other competent court.


(3) If any provision of these terms of use should be or become void, the validity of the remaining provisions shall not be affected. In such cases, the parties are obliged to work together to agree on provisions through which a legally valid result coming as close as possible to the commercial intent of the invalid provision shall be achieved. The above shall apply accordingly in the event of gaps in the agreement.


(4) The Festo Cloud is subject to the export control laws of various countries, in particular the laws, regulations and directives of the Federal Republic of Germany, the EU and the United States of America. The user undertakes not to submit the Festo Cloud to a regulatory body for examination of the possible granting of rights of use or any other official approval without prior written agreement from Festo and not to export it to countries or to natural persons or legal entities that are subject to export bans under the applicable ex-port control laws, regulations or directives. Furthermore, the user is responsible for compliance with all legal regulations relating to use of the Festo Cloud in the country where the user is using the Festo Cloud.