General Terms and Conditions of Gigaset Communications GmbH


Final provisions

Contracts between the Provider and the Customer are governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.

If the Customer is a commercial person and has his registered offices in Germany at the time of ordering, then the exclusive place of jurisdiction is site of the Provider's registered offices, Düsseldorf. Otherwise, the applicable legal regulations apply with respect to local and international jurisdiction.

  1. Scope of validity, right of modification,
    1. For the business relationship concerning the use of the ELEMENTS Cloud, as described in detail in Item 2, between Gigaset Communications GmbH, Frankenstraße 2, 46395 Bocholt, Germany (hereinafter referred to as ELEMENTS) and the Customer, these General Terms and Conditions of Use (hereinafter referred to as the "Cloud GTC") – in the version valid at the time of acceptance by the Customer – apply exclusively. Any conditions of the Customer that deviate from the Cloud GTC will not be recognised, except where ELEMENTS expressly agrees to the validity of these conditions in writing.
    2. The Customer is the consumer, insofar as the purpose of the ordered goods and services cannot be attributed to the commercial or independent professional activity of the Customer. The Contractor, on the other hand, is any natural or legal person or business partnership with legal capacity that, at the time the Contract is concluded, is carrying out its commercial or independent professional activity.
    3. ELEMENTS is entitled to change the content of these Cloud GTC with the approval of the Customer, provided that this change does not affect the core provisions of the contractual relationship, and provided that the change is required in order to adapt the Cloud GTC in line with developments that could not have been foreseen at the time of conclusion of the Contract between ELEMENTS and the Customer, or that the change is deemed reasonable for the Customer, taking the interests of ELEMENTS into account. The notice of change will be sent by email to the email address provided by the Customer. The Customer is deemed to have given his/her consent to the change to the Contract if the Customer does not raise an objection to the change, either in writing or by email, within four weeks of having received the notice of change. If the Customer exercises his/her right to object, ELEMENTS may choose to either ordinarily terminate the Contract or to continue the Contract on the same terms.
  2. Object of the Contract, contractual obligations
    1. ELEMENTS provides an IP-based system that transmits data from sensors installed in the Customer's home. To do so, ELEMENTS manages a platform for the storage, processing and analysis of data, or has such a platform managed by third parties (hereinafter referred to as "ELEMENTS Cloud"). The ELEMENTS Cloud is connected to an ELEMENTS base station, and to the sensors and actuators connected to the base station, via the Internet. The ELEMENTS base station and the sensors and actuators must be purchased separately by the Customer and installed in the Customer's home. At the Customer's request and instigation, the ELEMENTS Cloud can be connected via the Internet to a display unit belonging to the Customer (PC, laptop, smartphone, tablet etc.) in order to display sensor statuses, send warning and alarm signals and trigger actions. The ELEMENTS Cloud receives the data from the sensors, probes, measuring devices etc. (hereinafter referred to as "Measuring Data 1") that is sent from the Customer's ELEMENTS base station, stores this data in a temporary location, analyses it using specific algorithms (e.g. statistical methods, data mining etc.), processes it, saves the results and then makes this processed data available to the Customer or third parties for further processing (hereinafter referred to as "Measuring Data 2"). The algorithms used make it possible to recognise "normal" measuring data trends, and to identify and deal with any anomalies. Data may be transmitted to the Customer or to third parties for the purpose of sending commands to the actuators, control units, signal generators etc. that the Customer has connected to his/her ELEMENTS base station. The ELEMENTS Cloud can also be connected to data processing systems belonging to third parties whose services are used by the Customer on the basis of separate contracts, and who use these systems to receive and store the Customer's personal data, as well as data from sensors, probes, measuring devices etc., and analyse this data using specific algorithms, process it and save the results.
    2. The object of this Contract is solely the provision and operation of the ELEMENTS Cloud by ELEMENTS on the basis of these Cloud GTC. ELEMENTS expressly states that it does not guarantee success as a result of the Customer using the ELEMENTS Cloud.
    3. Items that are not included in the ELEMENTS service for provision and operation of the ELEMENTS Cloud and therefore do not form part of the object of these Cloud GTC include, but are not limited to:
      • Any hardware required in order to use the ELEMENTS Cloud, such as the ELEMENTS base station, ELEMENTS sensors, a computer, telephone connection, modem, web-enabled mobile phone etc. as well as the software required in order to operate this hardware
      • Internet access
      • Provision and maintenance of an Internet connection
      • Power supply
      • Error-free operation of the sensors (including but not limited to the collection/generation and sending of data)
      • Error-free data transmission of data to the ELEMENTS Cloud
      • Error-free return transmission of the data processed or data sets compressed in the ELEMENTS Cloud to the Customer
      • Content transmitted from third parties, including error-free transmission of this content (e.g. software that is free from viruses).
    4. ELEMENTS is solely responsible for the technical features of the ELEMENTS Cloud and for the range of technical resources used in the provision and operation of the ELEMENTS Cloud. The Customer is not entitled to request technical changes relating to the operation or provision of the ELEMENTS Cloud. ELEMENTS is entitled to modify, supplement or replace the resources and technologies used at its own discretion. If cooperative measures are required on the part of the Customer in order to do so, the Customer is obligated to take these measures, except in cases where it would be unreasonable to do so.
    5. ELEMENTS refers the Customer to the fact that the operation, provision and use of the ELEMENTS Cloud may be subject to factors that do not fall within ELEMENTS' area of responsibility, and on which ELEMENTS itself does not have any influence. ELEMENTS accepts no responsibility for disruptions, restrictions or interruptions to the operation, provision and use of the ELEMENTS Cloud that result from such influences.
    6. ELEMENTS draws the Customer's attention to the fact that the transfer of data to, analysis of data in and return transfer of data from the ELEMENTS Cloud, and therefore use of the Cloud itself, requires, inter alia, an uninterrupted power supply (e.g. to the base station, sensors, computer, web-enabled mobile phone etc.) and an Internet connection.
    7. If deemed necessary by ELEMENTS, for example to enable proper or improved operation of the ELEMENTS Cloud, ELEMENTS is entitled to make changes to the provision and/or operation of the ELEMENTS Cloud, either in whole or in part, on a temporary basis. The Customer is exempt from his/her obligation to pay, as defined in Item 5 of these Cloud GTC, only if these changes are made over a period of more than 24 hours.
    8. ELEMENTS grants an annual average availability of the ELEMENTS Cloud of 97.5%. This figure excludes periods during which the server on which the ELEMENTS Cloud is operated is unavailable online due to technical or other problems that are outside of ELEMENTS' sphere of influence (force majeure, negligence by third parties etc.). Maintenance windows required twice a month for up to three hours at a time are also excluded from this figure. ELEMENTS is entitled to define the time periods for these maintenance windows at its own discretion.
    9. ELEMENTS is entitled to restrict or deny the Customer access to the ELEMENTS Cloud if this measure is necessary in order to ensure the secure operation of the ELEMENTS Cloud and/or to prevent disruption to the ELEMENTS Cloud, the software or stored data and/or to ensure data protection.
    10. If ELEMENTS falls behind with a service obligation, the Customer then has the right to withdraw, but only if the Customer has set ELEMENTS a final deadline for providing the service and this deadline has passed without the service having been provided. Notification of the final deadline can be sent, in writing, to Gigaset Communications GmbH, Frankenstraße 2, 46395 Bocholt, Germany, or by email to elementsstore@gigaset.com.
    11. If ELEMENTS provides the Customer with additional services free of charge as part of the provision and operation of the ELEMENTS Cloud, these services are deemed to be voluntary services provided by ELEMENTS, which do not form an integral part of the Contract and to which the Customer has no legal claim, even in the event of long-term use. ELEMENTS is therefore entitled to make changes to such services or discontinue the offer of these services at any time. If other provisions are expressly agreed with the Customer, these expressly agreed provisions take priority.
    12. ELEMENTS is entitled to contract reliable and qualified third parties in order to complete its contractual obligations. However, use of a third party does not absolve ELEMENTS from its contractual obligations.
    13. ELEMENTS is entitled to transfer its rights and obligations as set out in this Contract to one or more third parties, provided that the third parties are qualified to take on these rights and obligations. Such a transfer of rights and obligations to one or more third parties does not constitute grounds for extraordinary right of termination on the part of the Customer.
    14. ELEMENTS does not make any guarantees for security in relation to the establishment of an Internet connection and during the transfer of data to the ELEMENTS Cloud and/or from the ELEMENTS Cloud to the Customer or third parties. The data is transferred at the risk and expense of the Customer.
    15. ELEMENTS draws the Customer's attention to the fact that fees that are charged by third parties for a service used by the Customer – including, but not limited to, use of the Customer's Internet or telephone connection, the deployment of emergency services (e.g. police, fire brigade) etc. – will be borne by the Customer, and are not included in the use of the ELEMENTS Cloud and the fees charged for use of the ELEMENTS Cloud.
  3. Conclusion, duration and termination of the Contract
    1. The Customer makes a binding offer to conclude a contract regarding use of the ELEMENTS Cloud provided and operated by ELEMENTS as set out in the Cloud GTC, wherein the Customer accepts these Cloud GTC and requests access to the ELEMENTS Cloud by registering the base station via the ELEMENTS app or homepage. ELEMENTS can accept this offer from the Customer by accepting the Customer's registration in the ELEMENTS Cloud. ELEMENTS is under no obligation to accept the Customer's offer. The Contract only comes into effect once ELEMENTS accepts the Customer's offer.
    2. The services may be offered by ELEMENTS free of charge or for a fee.
    3. If ELEMENTS and the Customer do not agree on a fee for provision of the service by ELEMENTS, the duration of the Contract is indefinite. Each contractual partner is entitled to terminate the Contract at any time, with a notice period of 14 days and without specifying the reason for terminating the Contract. If other provisions are expressly agreed with the Customer, these expressly agreed provisions take priority.
    4. If payment of a fee for provision of the service by ELEMENTS is agreed upon with the Customer, the minimum contract duration is 24 months. The Contract will be extended by three months at a time if it is not terminated with a notice period of one month to the end of the minimum contract duration or the extension period. If other provisions are expressly agreed with the Customer, these expressly agreed provisions take priority.
    5. If payment of a fee for provision of the service by ELEMENTS is agreed upon with the Customer, and the Contract is concluded for an indefinite period of time, the contractual relationship can be terminated by either contractual partner with a notice period of three months to the end of a calendar month and without specifying the reasons for terminating the Contract. If other provisions are expressly agreed with the Customer, these expressly agreed provisions take priority.
    6. If, at the time the Contract is concluded, ELEMENTS provides the service free of charge, and if, at a later date, a fee is agreed upon with the Customer for provision of the service, this Contract can be terminated in accordance with Item 3.4, provided that the service is being performed for a fee at the time of termination of the Contract. If other provisions are expressly agreed with the Customer, these expressly agreed provisions take priority.
    7. An extraordinary right of termination for this Contract exists only if there is good cause. Good cause for ELEMENTS includes, but is not limited to, the following situations in particular:
      • The Customer has misused services
      • The Customer knowingly violates one of the obligations set out in Items 7.1, 7.2, 7.3, 7.6 and 7.9
      • When using the ELEMENTS Cloud, the Customer infringes the rights of a third party, or a third party proves that such an infringement of rights has taken place
      • Third parties assert claims against ELEMENTS as a result of actual or alleged infringements of rights
      • The Customer falls behind with payment of the fees to the amount of two months' basic payments.
    8. If the Contract is terminated by ELEMENTS for good cause, ELEMENTS is entitled to withdraw the Customer's authorisation to access the ELEMENTS Cloud with immediate effect.
    9. If a fee is contractually agreed for the ELEMENTS service and this Contract is terminated by ELEMENTS for good cause, ELEMENTS is entitled to request 50% of the amount that the Customer would be obligated to pay, if notice of termination of the Contract were given at this time, for the period from the date of said termination to the time that the Contract would ordinarily have ended, except in cases where the Customer is able to prove that ELEMENTS suffered no damage or considerably less damage.
    10. Notice of termination may be given in writing or by email. This notice must be sent to: Gigaset Communications GmbH, Frankenstraße 2, 46395 Bocholt, Germany, or elementsstore@gigaset.com.
  4. Revocation policy

    For orders from a Customer who is also the consumer, the following right of revocation applies.

    Revocation policy

    Right of revocation
    You may revoke your contractual declaration within 14 days in writing (e.g. letter, fax, email) without specifying the reasons therefor or – if the goods have been provided to you before the deadline has ended – by returning the goods. The period begins once this instruction has been received in writing, but not before the recipient has received the goods (for repeat deliveries of the same goods, not before receipt of the first partial delivery) and also not before fulfilment of our information obligations, as defined in Section 246 Article 2 in conjunction with Article 1 Paras. 1 and 2 of the EGBGB (Einführungsgesetz zum Bürgerlichen Gesetzbuch – Introductory Act to the German Civil Code), as well as our obligations as defined in Article 312g Para. 1 Clause 1 of the BGB (Bürgerliches Gesetzbuch – German Civil Code) in conjunction with Section 246 Article 3 of the EGBGB. The revocation period is deemed to have been met if the goods are returned or notice of revocation is given within this period. The revocation must be addressed to:
    Gigaset Communications GmbH
    Frankenstraße 2, 46395 Bocholt Germany
    or by email to elementsstore@gigaset.com

    Consequences of revocation
    In the event of a valid revocation, the services or payment received on the part of both Parties must be returned, as well as any benefits derived from these services (e.g. interest). If you cannot return the goods received, in whole or in part, or if you cannot return it in its original condition, you are obligated to compensate us for any depreciation in value. For deterioration in the quality of the goods and for the benefits derived from the goods, you are obligated to compensate for depreciation in value only if the benefits or the deterioration in quality is the result of use of the goods that goes beyond the scope of checking the features and functionality of the goods. "Checking the features and functionality" is understood to mean testing and trying out the goods in question, to the extent that would be possible and usual on the shop floor. Goods consignable by parcel post are to be returned at our own risk. You must bear the cost of returning the goods if the delivered goods correspond to the order and if the price of the goods to be returned does not exceed EUR 40.00 or, if the price of the goods exceeds EUR 40.00, you have not yet made payment in return or a contractually agreed partial payment at the time of revocation. In all other cases, we will assume the cost of returning the goods. Goods not consignable by parcel post will be collected from you. Obligations to refund payments must be met within 30 days. This period begins for you on the date upon which you send your goods or declaration of revocation, and for us upon receipt of the goods/declaration of revocation.

    End of the revocation policy

  5. Prices, billing and terms of payment
    1. The provision and operation of the ELEMENTS Cloud are currently offered by ELEMENTS free of charge.
    2. ELEMENTS reserves the right to impose a basic fee for provision and operation of the ELEMENTS Cloud, independent of usage and yet to be fixed by ELEMENTS at its own discretion, at a later point in time. The Customer will be notified of the amount of a basic fee of this kind, as well as the due date of this basic fee, by email to the email address provided by the Customer, once this basic fee has been fixed by ELEMENTS. Fee-based use of the ELEMENTS Cloud requires the explicit consent of the Customer. The provisions set out in Items 5.3 – 5.8 apply only once ELEMENTS starts offering use of the ELEMENTS Cloud only on a chargeable basis and once the Customer has agreed to this fee-based usage.
    3. In addition to the fee, VAT must be paid in accordance with the VAT rate valid at the time of the service being provided.
    4. ELEMENTS is entitled to adjust the basic fee no more than once every six months. The adjustment notification will sent by email to the email address provided by the Customer. Any adjustment to the price requires consent from the Customer. Consent is deemed to have been given if the Customer does not object to the price adjustment within four weeks of having received the adjustment notification in writing or by email.
    5. Billing takes place on a monthly basis. The first billing month begins on the date from which ELEMENTS performs the service only on a chargeable basis and ends on the last day of this month. If the Contract is only concluded once ELEMENTS has started to offer the service only on a chargeable basis, the first billing month begins on the date that the Contract is concluded. The subsequent billing months begin on the first day and end on the last day of the respective month. If a billing period does not begin or end on the 1st and 31st of a calendar month respectively, the basic fee will be calculated pro rata.
    6. The Customer will receive an electronic invoice from ELEMENTS by email or by notification via his/her personal customer account. An electronic invoice is an invoice that is issued and received in an electronic format. The Customer agrees to the electronic transmission of invoices. If the Customer requests invoices to be sent through the post, ELEMENTS is entitled to request processing fees and postage costs for each invoice, as defined in the latest version of the price list. The Customer can view these costs in his/her customer account under "My account". If the Customer has not provided an email address, or has provided an email address that is invalid, ELEMENTS will send the invoice to the Customer through the post and will charge the aforementioned fees and costs to the Customer's account.
    7. If the Customer falls behind with payment, ELEMENTS is entitled to block the Customer's access to the ELEMENTS Cloud with immediate effect. In this case, the Customer is still obligated to continue paying the monthly fees.
    8. Customer repayment claims will be credited to the Customer's invoicing account and will be offset against the next payment due to ELEMENTS, unless instructed otherwise by the Customer.
    9. The Customer shall pay all costs resulting from the use of his/her access ID, provided that the Customer cannot prove that he/she is not responsible for specific costs.
    10. The Customer may offset claims on the part of ELEMENTS only with undisputed or legally established counterclaims.
  6. Rights to software
    1. ELEMENTS shall grant the Customer the non-exclusive right, limited to the duration of the Contract, to use the software offered by ELEMENTS and required to access the ELEMENTS Cloud and analysis system (licence). The Customer is not entitled to rent out or lease his/her legal right of use, or to issue sub-licences. The Customer is not entitled to duplicate, release, distribute, sell, rent out, modify or translate this software, or to process it in any other way. The Customer is not entitled to carry out or to arrange to have carried out the reverse engineering, disassembly or decompiling of the software. Modification or removal of ELEMENTS copyright notices is not permitted. ELEMENTS reserves all industrial property rights and copyrights.
    2. The software offered by ELEMENTS and required to access the ELEMENTS Cloud and analysis system may contain open-source software. Rights to which the customer is entitled on the basis of the licence conditions for the relevant open-source software remain unaffected.
  7. Obligations of the Customer
    1. The Customer is obligated to comply with all applicable laws and to safeguard the rights of third parties at all times when using the services provided by ELEMENTS. In particular, the Customer is not permitted to use the ELEMENTS Cloud with the aim of covertly monitoring third parties or with the aim of processing content that is considered to be illegal or acquired illegally.
    2. The Customer shall ensure that use of the ELEMENTS Cloud does not infringe the rights of third parties.
    3. The Customer undertakes to inform all individuals whose data is recorded via sensors installed in the rooms of the Customer about the collection, recording, processing and storage of this data, and to obtain the consent of these individuals (hereinafter referred to as "Consenting Third Parties") to the collection, recording, processing and storage of this data. The Customer undertakes to stop using the ELEMENTS Cloud if there is a risk of data being processed therein that is not personal data of the user or data of a Consenting Third Party. Furthermore, the Customer undertakes – at the request of ELEMENTS – to submit proof of consent of the Consenting Third Parties.
    4. The Customer undertakes to provide ELEMENTS with the information required for fulfilment of the Contract – including the Customer's physical address – truthfully, accurately and in full, and to ensure that this information is kept up-to-date for the duration of the Contract. The Customer shall ensure that he/she informs ELEMENTS of any changes to the information provided without delay. ELEMENTS expressly states that accurate and up-to-date customer data must be stored for certain services. It is the Customer's responsibility to ensure that this Customer data in question is always kept up-to-date. ELEMENTS shall not be held responsible or liable for any errors in the system, for any incorrect analyses or for being unable to notify the Customer of events, where this is due to the Customer failing to keep his/her Customer data up-to-date.
    5. Access to the services offered by ELEMENTS may be password-protected. The Customer is obligated to treat these passwords as strictly confidential. If the Customer discovers that a password is known to unauthorised third parties, the Customer must change the password without delay. The Customer is liable to ELEMENTS for any damage resulting from use of the passwords by unauthorised third parties. The Customer shall exempt ELEMENTS from all costs and claims from third parties resulting from use of the Customer's access ID, provided that the Customer cannot prove that he/she is not responsible for said costs and claims.
    6. The Customer undertakes to use the services provided by ELEMENTS only to such an extent that this usage does not put excessive strain on the technical resources and systems used by ELEMENTS to provide its services.
    7. The Customer undertakes, at his/her own risk and expense,
      • To purchase, set up, configure, make available and maintain the hardware components required to use the ELEMENTS Cloud, such as the ELEMENTS base station, sensors, a computer, web-enabled mobile phone, telephone connection and Internet connection (hereinafter referred to as "Third-Party Hardware")
      • To install and maintain the software required to operate the Third-Party Hardware and use the ELEMENTS Cloud (hereinafter referred to as "Third-Party Software") and to download and install the necessary software updates
    8. If the Customer has informed ELEMENTS of an error message and the subsequent troubleshooting performed by ELEMENTS has revealed that there are no errors in the technical resources and systems used by ELEMENTS to provide its services and/or the error does not fall within ELEMENTS' area of responsibility, and if the Customer could reasonably have been expected to identify this fact himself/herself, ELEMENTS is entitled to request reimbursement of its troubleshooting expenses from the Customer.
    9. The Customer is not entitled to rent out access to the ELEMENTS Cloud, in whole or in part, or to provide use of the ELEMENTS Cloud, either free of charge or for a fee. A full or partial transfer for use to third parties is permitted only if these third parties reside in the same household as the Customer. In all other cases, renting out use or the transfer for use to third parties requires prior written approval from ELEMENTS. ELEMENTS draws the Customer's attention to the fact that transferring data to a third party who has been specified by the Customer in advance, in order to inform said third party of specific, expressly pre-defined incidents, does not come under the provision of this Item 7.9.
    10. If the Customer misuses access to the ELEMENTS Cloud or accesses the ELEMENTS Cloud in violation of the contractual agreement, ELEMENTS is entitled to block the Customer's access to the ELEMENTS Cloud, at its own discretion, on a temporary or permanent basis. The right of ELEMENTS to terminate the Contract for good cause remains unaffected by this provision.
  8. Liability limitations and claims for compensation
    1. Customer claims for compensation are excluded. Exceptions to this rule are Customer claims for compensation resulting from loss of life, bodily harm, damage to health, or violation of contractual obligations that must be met in order to enable proper performance of the Contract and that the Customer is entitled to regularly rely on being fulfilled (material obligations), as well as liability for other damages resulting from an intentional or grossly negligent breach of duty by ELEMENTS, its legal representatives or its vicarious agents.
    2. In the event of violation of material contractual obligations, ELEMENTS is liable only for foreseeable damage typical for this Contract, where the damage was caused solely by negligence, unless the Customer is claiming for compensation resulting from loss of life, bodily harm or damage to health.
    3. In the event of financial loss, the liability of ELEMENTS is limited to an amount corresponding to ten times the annual remuneration owed by the Customer for the services provided by ELEMENTS in accordance with this contract, but no more than EUR 2000.00. If more than one Customer suffered a loss on account of the same damaging event, ELEMENTS is liable to all injured parties up to a total amount of EUR 200,000.00 ("Total Amount"). If the Total Amount is not sufficient to compensate all injured parties, the Total Amount must be allocated to the injured parties on a pro-rata basis. If ELEMENTS, its legal representatives or its vicarious agents caused the damage intentionally or by gross negligence, the liability limitation in this Item 8.3 no longer applies.
    4. The limitations set out in Items 8.1, 8.2 and 8.3 also apply in favour of the legal representatives and vicarious agents of ELEMENTS if claims are made directly against them.
    5. ELEMENTS shall, from time to time, make an update available for the software offered by ELEMENTS and required to access the ELEMENTS Cloud and analysis system ("Updates"). The Customer may decide for himself/herself whether or not to perform the Updates offered. If the Customer does not perform the Update offered, he/she will not have the latest version of the software. This means that it may no longer be possible to use all applications afforded by the ELEMENTS Cloud. Furthermore, use of the ELEMENTS Cloud as set out in the Contract is no longer guaranteed. In such cases, ELEMENTS is exempt from any liability if it can prove that the shortcoming would not have occurred if the Customer had performed the Update.
    6. The liability of ELEMENTS for loss of data that ELEMENTS is under a contractual obligation to store is limited to the amount required in order to restore the lost data to the Customer's display unit (PC, laptop, smartphone, tablet etc.) using existing backup copies.
    7. ELEMENTS accepts no liability for ensuring the availability or proper functioning of Third-Party Hardware or Third-Party Software where this hardware or software is to be procured, set up, configured, made available and maintained by the Customer himself/herself, even if the hardware or software is certified by ELEMENTS.
    8. The liability of ELEMENTS excludes loss of data, hardware malfunctions, or disruptions to use of the ELEMENTS Cloud, to the point of non-functionality of the ELEMENTS Cloud, where this is the result of an incompatibility between the ELEMENTS Cloud and the Third-Party Hardware or Third-Party Software used by the Customer.
    9. ELEMENTS also accepts no liability for ensuring the proper analysis and control of sensors, actuators, measuring devices, probes, controllers etc. from other manufacturers, even if these are certified by ELEMENTS.
    10. If the ELEMENTS Cloud is used free of charge, ELEMENTS is responsible only in cases of intentional misconduct and gross negligence.
    11. Liability for all other damages is excluded, insofar as this liability is not prescribed by law.
  9. Data protection
    1. ELEMENTS collects, processes and uses personal data of a Customer without explicit consent, provided this data is required in order to establish and process the Contract and/or for billing purposes or this is permitted by the corresponding legal regulations on protection of customer data.
    2. ELEMENTS is entitled to store, process and analyse the data obtained in the course of the Customer's use of the ELEMENTS Cloud in an anonymised form (hereinafter referred to as "Big Data"). ELEMENTS may also make results and statistics obtained in this way available to third parties. However, data obtained within the scope of Big Data is neither personal data of the Customer, nor can it be assigned to a person, either directly or indirectly, in any other way.
    3. If the Customer concludes a contract with a third party regarding a service offered by this third party that is related to use of the ELEMENTS Cloud or that is provided or procured via the ELEMENTS Cloud or that is based on customer data processed in the ELEMENTS Cloud, ELEMENTS is also entitled to pass the Customer's personal data or data that is generated or stored in the ELEMENTS Cloud on to the third party (hereinafter referred to as "Third-Party Service"). In such cases, the Customer hereby agrees to the data being passed on to the third party. The Customer may revoke this consent given to ELEMENTS at any time – in writing or by email. As the functionality of a Third-Party Service as defined above is subject to data being passed on to the Third Party, ELEMENTS would like to point out that the Third-Party Service cannot be used without the Customer having agreed to the data transfer. Revoking consent to the transfer of data merely involves ELEMENTS stopping data from being passed on as quickly as possible. In the case of data transfer to a third party, ELEMENTS is not responsible for the accuracy of data transferred. Furthermore, once data is passed on to the third party, the provisions concerning data protection and liability for data loss etc. contractually agreed upon between the third party and the Customer apply.
    4. ELEMENTS undertakes to implement technical and organisational security measures in order to protect the Customer's personal data against unintentional or unlawful deletion or modification, and against loss, unauthorised forwarding and unauthorised access. ELEMENTS expressly informs the Customer that, in spite of the security measures taken, data protection for data transferred over the Internet or mobile network cannot be fully ensured, and there is a risk of unauthorised third parties being able to intervene in the data transfer or gain access to the Customer's personal data by other means.
  10. Final provisions
    1. Serious events – in particular force majeure, industrial disputes, riots, or acts of war or terrorism – that have unforeseeable consequences for the performance of the service exempt the contractual partners from their contractual obligations for the duration of the disruption and to the extent of the effect of this disruption, even if the contractual partners find themselves in arrears. The occurrence of such events does not result in an automatic termination of the Contract. The contractual partners undertake to notify one another of an obstacle of this kind and to adapt their obligations to the changed circumstances in accordance with the principles of good faith.
    2. Contracts between ELEMENTS and the Customer are governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
    3. If the Customer is a merchant and is based in Germany at the time of the Contract being concluded, then the exclusive place of jurisdiction is Düsseldorf. Otherwise, the applicable legal regulations apply with respect to local and international jurisdiction.
    4. Should one or more provisions of these Cloud GTC be or become ineffective or void, in whole or in part, or should this Contract contain a loophole, the validity of the remaining provisions shall remain unaffected.