1.1 Device Tools AG (“Device Tools”) offers cloud based services as well as related services as further specified on devicetools.ch, devicetools.com (the “Platform”) and individually offered by Device Tools (jointly the “Services”, “Service”). The Service allows the Users to create and manage data (the “Data”) and to serve it to mobile applications, IoT systems or any other environment.
1.2 All contractual relationships between Device Tools and any user using the Services offered by Device Tools (a “User”, “Users”) shall be governed by these Terms of Service (the “Terms of Service”). By registering with the Platform or using the Services, the User agrees to be bound by these Terms of Service.
1.3 Standard business conditions and/or general terms and conditions of the User do not apply, regardless of whether or not Device Tools has expressly objected to them in a particular case.
2.1 Any use of the Services requires prior registration on the Platform by creating a Device Tools account and the acceptance of these Terms of Service. By clicking the box “I agree to these Terms of Service” or by registering on the Platform after Device Tools has provided a link with these Terms of Services stating that they will be included, a User agrees he has read, understood, and accepted the Terms of Service.
2.2 The User is responsible for the accuracy of the information necessary for registration as a User. He is obligated to keep credentials secret and protect them against unauthorised use by third parties. In case of misuse or loss of the credentials or in case of an appropriate suspicion, he must report the same to Device Tools to firstname.lastname@example.org.
3. Use of Services
3.1 Offers published by Device Tools on the Platform are non-binding.
3.2 By registering on the Platform according to Section 2 hereof and subscribing to a subscription plan, the User makes a binding offer to use the respective Services. The offer shall be deemed to be accepted by Device Tools by making available the respective Service. Upon the acceptance of a subscription a contract between the User and Device Tools is concluded (the “Contract”).
3.3 The User can subscribe to the Services on a monthly or annual basis.
4. Prices and Payment
4.1 The User, when using a paid subscription plan, will be required to provide Device Tools with billing and account information for credit card, debit or other payment systems, such as Stripe, (each a “Payment Source”) for which the User is authorized to approve charges to allow Device Tools to collect payment from the Users for their purchases. The Users authorize Device Tools to automatically and immediately bill the Payment Source when payments for subscription plans are due.
4.2 The billing of a subscription plan is made on a pre-paid basis. The payment source will be billed within five bank working days of the beginning of the chosen subscription period and at every renewed period of subscription respectively according to the current price list.
4.2 Device Tools may amend the price list of Services at any time upon observance of statutory regulations and notifying the Users about the amendment.
4.3 The stated prices are net prices excluding VAT. All other charges in connection with the use of the Services shall be borne by the User.
5. Contract Period, Termination of Contract, Cancellation of account
5.1 The term of use depends on the subscription period chosen by a User when ordering Device Tools’ Services and shall be renewed for that same period (i.e. another month/year) each time the User does not terminate the Contract according to Section 5.2 below.
5.2 The User may terminate a Contract before the end of the ordered subscription period or to the end of the respective renewed period. The User can also change the length of the ordered subscription plan before the end of his subscription period instead of terminating the Contract. The ordinary termination of a Contract before expiry of the respective subscription period is hereby excluded. The User having used the trial run may unsubscribe from Device Tools anytime without giving reason and without notice by using the respective button in his account.
5.3 The right of termination for cause and without notice remains unaffected for both parties. A good cause for termination shall include, but shall not be limited to, any of the following events:
5.3.1. The User fails to comply with any applicable legal provisions:
5.3.2. The User fails to comply with any terms of these Terms of Service;
5.3.3. The User fails to pay the fees for the ordered Services.
5.4 Any termination declaration must be to email@example.com.
5.5 After a User has terminated the Contract, Device Tools will not provide any stored data in the account. Device Tools will delete any data of that User after he has cancelled his registration.
6. Prohibited use
6.1 The Users shall act according to the destined functions of the Platform and Services. Any inappropriate or illegal use, manipulation, or change of the Platform and Services is prohibited. It is particularly forbidden to use the Platform and/or Services to distribute illegal Data and/or Data that infringes third parties rights, in particular but not limited to
6.1.1. pornographic, insulting, offensive, racist, threatening, youth protection law infringing, or other illegal or immoral Data or to advertise, offer, or sell such products;
6.1.3 threats to other Users;
6.1.4 Data that affects or infringes the rights of third parties or that is covered by copyrights, unless the User owns the respective copyright or has the permission of the copyright owner;
6.2 Furthermore it is forbidden
6.2.1 to use temporary e-mail addresses;
6.2.2 to create multiple accounts for disruptive or abusive purposes;
6.3 Device Tools reserves the right to delete any infringing Data according to this Section 6, terminate the Services and/or suspend accounts of Users that are violating any of these Terms of Service, in particular this Section 6.
7.User’s Warranty, Responsibility
7.1 The User is solely responsible for its Data and for payments of all fees and licences related hereto, such as royalty payments to any collection societies. In particular the User represents and warrants that any material, data, images, photos, videos, music and other Data submitted or otherwise transferred or published via Device Tools’ Platform or the use of the Services does not infringe third party rights or any applicable law and does not consist of or include Data according to Section 8 hereof.
7.2 Device Tools has no ability to and does not control any of the Data. Device Tools is not responsible or liable for the availability, accuracy, completeness, freshness and legality of the Data.
8. Liability of Device Tools
8.1 Device Tools is unrestrictedly liable for damages that have been caused by deliberate intention or by gross negligence by Device Tools, its legal representatives or senior executives and for damages that have been caused by deliberate intention by other assistance in performance; in respect of gross negligence of other assistants in performance Device Tools’ liability shall be as set forth in the provisions for slight negligence.
8.2 In cases of slight negligence, Device Tools is only liable if it, its legal representatives or assistants in performance has infringed a fundamental duty and if the purpose of the Contract is threatened thereby or if it its legal representatives or assistants in performance have infringed duties that have to be fulfilled for the duly contract implementation and if the User generally relies on the fulfilment of these duties. In the aforementioned cases, Device Tools is only liable for foreseeable damages by a User at the time the respective Service was performed. Liability of Device Tools for consequential damage and lost profit is excluded.
8.3 Device Tools is only liable in the event of gross negligence for predictable damages up to the amount of the respective price of Service.
8.4 Device Tools will not be liable hereunder by reason of any failure to timely perform its Services due to an event beyond its reasonable control, including acts of God; acts of terrorism; civil unrest; war; fires; power cuts; epidemics.
8.5 Device Tools will make every effort to provide a stable and powerful Service in cooperation with service partners and data processing centres. However, potential service failures due to malfunctions or maintenance works are to be expected and do not constitute a defect of Service. No guarantee of Device Tools shall be given for the absence of viruses or any other harmful components of the Website or Device Tools’ software.
8.6 If the liability of Device Tools is excluded or restricted, this also applies to the personal liability of its employees, representatives, and agents.
8.7 The aforementioned restrictions of liability do not apply to cases of damages to life, body, or health, to cases of warranting for the condition of a product, and to cases of fraudulent concealment of defects of Device Tools, its legal representatives or assistants in performance.
9.1 A User will indemnify, defend, and hold harmless Device Tools and its officers, directors, employees for any and all claims, suits, litigation, causes of action, losses, damages, expenses, costs (including court costs and attorneys’ fees) and liabilities (“Losses”) that arise out of, or in connection with (i) the Users use of the Website and/or Services; (ii) any claim that the User’s Data caused damage to a third party.
9.2 In cases of an aforementioned enforcement of claims by third parties, the User will provide Device Tools with all his information that is needed for the examination of the claim and for the defence against it. The User provides the information immediately, truthfully, and completely.
9.3 The regulation of liability of a User or his obligation of indemnification shall apply to the same extent in the event of an act of his sub-account user.
10. Intellectual Property Rights
10.1 Device Tools License
Subject to the Users compliance with the terms and conditions of these Terms of Service, Device Tools grants its Users a limited non-exclusive, non-transferable license to access and make personal use of the Platform and the Services including certain software and not to download or modify it, as part or as a whole (the “Device Tools License”). The Device Tools License does not include the right of any resale or other use outside the offered Services. Any commercial use of the Platform and/or Services requires Device Tools’ prior written approval. The Device Tool License granted to a User will automatically terminate without notice from Device Tools if the respective User breaches any terms of these Terms of Service.
10.2 User Data
Device Tools does not claim any ownership rights in User Data. However by uploading, streaming or otherwise transmitting any Data to Device Tools, the User hereby grants Device Tools the non-exclusive, worldwide, royalty-free, sub-licensable right to use, in particular to copy, modify, transmit, store, archive, display and publish the Data for the purpose of providing the Services.
11. Use for reference
The User agrees that Device Tools may use information of the User provided by him (i.e. the name/trademark) for marketing purposes as reference on their website. The User may withdraw such consent by writing an email to Device Tools to firstname.lastname@example.org.
12. Data Protection
13.1 Any contracts entered into between Device Tools and a User shall be governed by the laws of Switzerland.
13.2 The courts in Zurich, Switzerland, shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract.
13.3 Should any provision of this Terms of Service be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provisions shall be deemed replaced by such valid, effective and enforceable provision as come closest to the economic intent and purpose as of such invalid, ineffective or unenforceable provisions as regard subject-matter, amount, time, place and extent. The aforesaid shall apply mutatis mutandis to any gap in these Terms of Service if any court has confirmed such proceeding.