TERMS OF PLATFORM USE
Last amended on: 5 December 2023
These Terms of Platform Use apply to the use of the netinform online platform (hereinafter called “platform”) operated by TÜV SÜD Industrie Service GmbH (Westendstraße 199, 80686 Munich, Germany, hereinafter called “TÜV SÜD”) under the domain of tuvsud.com and all TÜV SÜD services associated therewith. These Terms of Platform Use also apply where the platform is accessed outside the Federal Republic of Germany or where full or partial access to the platform is enabled from other websites or software applications for mobile devices (smartphone apps).
I. Operating principle of the platform, TÜV SÜD services
(1) The platform is used to exchange documents (e.g. test reports, plant documentation, checklists), messages and other information with customers (hereinafter called “customer” or “customers”), and, where applicable, servicing and maintenance companies or manufacturers (hereinafter referred to as “partners”). Customers are entitled to add sub-accounts assigning authority to access the platform to further natural persons of full legal capacity (hereinafter called “authorised users”). TÜV SÜD uploads test reports, certificates and other documents related to the user´s plants, installations and other objects to the netinform platform. The fact that these documents are now exclusively provided in digital form, e.g. in PDF format, is a key advantage over the previous practice of sending hard copies of test reports. Given this, the default setting of the option for report sending is “digital only”. Users wishing to continue receiving hard copies of test reports in the future must explicitly activate this option. Customers and authorised users are also permitted to upload documents, provided these documents are associated with, and required for, the inspection and test services so far as those testing services are in context with inspection of TÜV SÜD. The platform particularly provides customers, partners and authorised users with a detailed overview of the plants and installations operated by the customers where said plants and installations have been tested and inspected by TÜV SÜD. Access to the platform is provided free of charge.
(2) TÜV SÜD is entitled to further develop, change or discontinue provision of the platform services at any time.
II. Registration as customer, partner and authorised user
(1) Use of the platform and the TÜV SÜD services offered thereon is only possible for customers whose plants and assets are tested and inspected by TÜV SÜD. Successful registration on the platform is a further requirement for platform use.
(2) Customer registration on the platform is only open to legal persons and natural persons of full legal capacity. Registration of minors is excluded. Customers’ customer accounts are non-transferable. Section II (5) remains unaffected.
(3) To register, customers complete a registration form and transfer this form to TÜV SÜD. TÜV SÜD verifies the legitimacy of the registration in as far as possible on the basis of the data submitted. If the registration is legitimate, TÜV SÜD creates an account for the customer and assigns to this account all plants, installations and assets which form part of this account in TÜV SÜD´s opinion. In as far as these assets also include plants and installations that require activities by partners, e.g. servicing and maintenance companies, TÜV SÜD creates sub-accounts granting these partners access to the relevant plants and installations. This applies, for example, where a customer has concluded a service agreement with a servicing company for a specific plant or installation and the customer or service company has informed TÜV SÜD of this fact. By accepting these Terms of Use, customers explicitly consent to TÜV SÜD granting access authorisations to these partners. TÜV SÜD issues written confirmation of registration to customers, with the login details for the customer accounts. Alternatively, TÜV SÜD may send an email with a confirmation link. The method employed is at the discretion of TÜV SÜD. The Platform Licence Agreement for free use of the platform comes into effect when TÜV SÜD activates the user account. When first logging into the platform or in case of amendments to these Terms of Use, customers click the relevant buttons to confirm acceptance of these Terms of Use. The text of the agreement comprises the personal customer data entered in the registration form and these Terms of Platform Use. Following completion of registration, TÜV SÜD saves the text of the agreement and makes it available to customers on the platform.
(4) There is no entitlement to conclusion of a Platform Licence Agreement.
(5) After customer registration, customers may register additional natural persons of full legal capacity to use the platform on their behalf and for their account (“authorised users”). Customers will only grant access to persons with a technical or commercial connection to their plants and installations. Customers must first accept the Terms of Use and register on the platform before registering further authorised users. Customers undertake to obtain the consent of their authorised users to disclosure of the authorised users’ email addresses. This is necessary to set-up sub-accounts with access to the platform. Customers will indemnify TÜV SÜD from any claims by authorised users. When first logging into the platform or in case of amendments to these Terms of Use, authorised users click the relevant buttons to accept these Terms of Use.
(6) Customers undertake to enter all the required information correctly and completely when registering as a customer or registering further authorised users. Customers must inform TÜV SÜD immediately and without being prompted of any changes in the information submitted within the scope of registration.
(7) Customers are responsible for any actions or omissions on the part of their authorised users and for their own actions or omissions. Section III (2) shall apply.
III. Obligations of customers
(1) Customers are obliged at all times to act in compliance with legal requirements when using the platform. When using the platform, customers are responsible for ensuring that they are not in violation of any third-party rights and that their information is correct. Customers may only use content, information and documentation provided on the platform by TÜV SÜD (hereinafter “TÜV SÜD content”) for the purpose of this agreement and for contractual performance of technical testing and inspection services. Contact details and email addresses in particular must not be disclosed to third parties or used in advertising measures or own offers without TÜV SÜD´s express prior approval.
(2) Customers undertake to keep their login data or those of their authorised users confidential and must make sure that these data cannot be accessed by third parties. Customers undertake to use sufficiently complex passwords in line with the generally recognised standards of information security (e.g. the IT Security Guidelines (Grundschutz-Kataloge) of the Federal German Office for Information Security, BSI). Liability for all activities carried out under customer login data rests with the customer in question unless the customer is able to furnish evidence of disclosure of the data to third parties through no fault of its own. Users must log out and leave the password-protected area after each use of the platform. Customers becoming aware that third-parties may have received knowledge of login data and/or that login data might be misused by authorised users must delete the sub-access of the authorised user concerned and notify TÜV SÜD without delay and in writing.
(3) After receipt of the notification according to Section III (2), TÜV SÜD will block access to the password-protected area with the customer´s present login data. To unblock the account, the customer must file an application to this effect with TÜV SÜD.
(4) Sole responsibility for the correctness, quality, integrity and legitimacy of the content, information and documentation provided by customers or their authorised users on the platform (“customer content”) and the methods by which said customer content is procured rests with the customers. Customers and/or their authorised users may only upload technical documents, data and content that are related to the plants and installations inspected by TÜV SÜD.
(5) Customers are not permitted (i) to use the platform for saving or transferring content that is illegal, in violation of laws, liable to corrupt young people, offensive or otherwise unlawful or illegitimate, or to save or transfer content in violation of data-protection laws, industrial property rights, copyrights, ancillary copyrights, personality rights and/or any other rights of third parties (ii) to use the platform for saving or transferring malicious code (iii) to interfere with the platform´s integrity or performance or with any data of third parties saved on this platform, or (iv) to attempt to obtain unauthorised access to the platform or its connected systems or networks.
(6) Should customers be in violation of the Platform Licence Agreement and/or these Terms of Platform Use, TÜV SÜD will be entitled
(i) to issue a caution
(ii) to restrict use of the platform by the customers and their authorised users, and
(iii) to block the account and sub-accounts of the customers and their authorised users temporarily or permanently, preventing them from accessing all or individual services provided on the platform. The same applies where TÜV SÜD has other legitimate interests in the above measures, such interests being in particular to protect suppliers or other users against fraudulent activities.
(7) TÜV SÜD will, at its reasonable discretion, select and use any or all of the above measures. However, in doing so, TÜV SÜD will give appropriate consideration to the customers’ legitimate interests. When weighing both parties´ legitimate interests, TÜV SÜD will in particular take into account the extent to which fault for a possible violation may be attributed to the customer.
(8) Customers whose accounts have been blocked are prohibited from re-registering under another customer and/or user account.
IV. Platform availability / warranty
As TÜV SÜD provides its platform services free of charge, legal liability provisions apply exclusively to fraudulently concealed defects. TÜV SÜD is under no obligation to ensure a certain level of availability of the relevant platform services. However, in the past platform services have reached annual mean availability of 99.5 %. TÜV SÜD endeavours to maintain this level of availability. Further, TÜV SÜD is under no obligation to ensure freedom from viruses. However, TÜV SÜD content is scanned for malware using standard anti-virus programs. TÜV SÜD reserves the right to restrict access to netinform for maintenance activities, for capacity reasons or on other grounds, permanently or temporarily.
V. Intellectual property and licensing
(1) For the term of the Platform Licence Agreement, TÜV SÜD grants customers the non-exclusive, non-transferable, non-sub-licensable and revocable right to access the platform through their authorised users via their customer or user accounts and to use this platform as available and as specified under these Terms of Platform Use.
(2) TÜV SÜD provides TÜV SÜD content on this platform. All property rights related to TÜV SÜD content remain with TÜV SÜD or the respective rights holder. Customers only receive the rights of use expressly granted under these Terms of Platform Use. The Platform Licence Agreement and these Terms of Platform Use do not grant or transfer any rights of use in TÜV SÜD content which extend beyond these rights to customers. Customers are further not entitled to use any TÜV SÜD content beyond the rights expressly granted.
(3) All property rights in customer content provided by customers on the platform via their authorised users remain with the customers or the respective rights holder. Customers hereby grant TÜV SÜD the simple non-transferable right for the term of the Platform Licence Agreement to use the customer content and/or to allow this content to be used by sub-contractors, in particular to save, reproduce, edit and publicly disclose such content in as far as necessary for providing the platform services.
VI. Free-of-charge services
Provision of the platform services is free of charge.
VII. Liability
(1) With respect to customer content or other content uploaded by customers or users, TÜV SÜD exclusively presents the information provided by the respective customers or users. TÜV SÜD does not review the information for correctness and topicality. Given this, TÜV SÜD is not responsible for such customer and/or user content. Liability of TÜV SÜD for errors which are the fault of TÜV SÜD is limited as outlined below:
(2) As the platform services are provided free of charge, liability on the part of TÜV SÜD is limited to the statutory provisions, i.e. TÜV SÜD is only liable in cases of intent, gross negligence or fraudulently concealed defects.
(3) Any further liability on the part of TÜV SÜD is excluded. Specifically, liability is excluded for defects existing at the time of conclusion of the agreement, as set forth in Section 536a (1) Alt. 1 German Civil Code (BGB), without fault on the part of TÜV SÜD.
VIII. Indemnity claims
Customers will indemnify TÜV SÜD on first demand against any claims, costs and damages arising out of an actual or alleged breach of obligation on the customer´s part – unless the customer is not at fault for said breach of obligation. The indemnity obligation in particular covers (i) all costs of legal defence, (ii) all claims of third parties against TÜV SÜD (in particular claims for damages), and (iii) all other damages suffered by TÜV SÜD in connection with the actual or alleged breach of obligation.
IX. Confidentiality
(1) The parties agree to maintain secrecy about any confidential information and to refrain from disclosing such information or making it available to third parties. “Confidential information” as defined hereunder includes all information and documents of the other party that are labelled confidential or must be regarded as confidential under the circumstances, in particular information about operational processes, business relations and know-how. Information is not considered confidential where (i) it is already verifiably known to the recipient on concluding the agreement or is disclosed to the recipient after conclusion of the agreement by a third party without violation of any non-disclosure agreement, legal provision or regulatory requirement; or (ii) it is public knowledge at the time of conclusion of the agreement or becomes so later, unless this is based on violation of the terms and conditions of this agreement.
(2) The non-disclosure obligation set forth under Section. IX (1) above will continue to apply for a period of five (5) years following termination of this Platform Licence Agreement. Affiliated companies of TÜV SÜD as defined in Sections 15 et seq. German Stock Corporation Act (AktG) and the agents employed by TÜV SÜD to fulfil the obligations arising from the terms and conditions of this agreement are not deemed third parties as defined under this provision.
(3) If confidential information must be disclosed owing to legal requirements, a court order or official instructions, the information recipient obliged to disclose this information will, in as far as permissible and possible, inform the other party in advance, giving it the opportunity to take actions against such disclosure.
(4) The information recipient is entitled to provide its lawyers, auditors and other consultants with access to confidential information in as far as (i) this is necessary to exercise the recipient’s legitimate interests and (ii) these advisors are either subject to the legal obligation of professional secrecy or have previously consented to non-disclosure requirements that essentially correspond to those agreed in these Terms of Use.
(5) TÜV SÜD is entitled to share confidential information with its agents and/or technical service providers (e.g. data centre operators) to the extent necessary in as far as these parties are subject to the legal obligation of professional secrecy or have previously consented to non-disclosure requirements that essentially correspond to those agreed in these Terms and Conditions.
X. Data protection
(1) The parties undertake to comply with all legal data-protection requirements applicable to their obligations under this agreement.
(2) The privacy policies of netinform will apply.
XI. Term and termination of Platform Licence Agreement
(1) The Platform Licence Agreement is concluded for an indefinite period of time. The agreement may be terminated by both parties, TÜV SÜD and the customer, observing a one-month period of notice to the end of the month. This provision does not affect the right to block customer or user accounts.
(2) Either party may terminate the Platform Licence Agreement without notice for cause. Grounds entitling TÜV SÜD to terminate the agreement for cause in full or in part (e.g. to terminate only individual contractual services) are particularly given where (i) the customer violates rights of TÜV SÜD or TÜV SÜD´s suppliers and/or agents by using the contractual services beyond the extent permitted under these Terms of Platform Use and, after a caution by TÜV SÜD, fails to desist from such violation within thirty (30) days or (ii) the contractual relationship that forms the basis of this Platform License Agreement ends.
(3) The customer´s right (and accordingly also the right of all the customer´s authorised users) to use and access the platform ends on termination of the Platform Licence Agreement.
(4) After termination of the agreement, TÜV SÜD will be entitled to delete all content. This provision does not affect any rights of retention and/or legal retention requirements on the part of TÜV SÜD.
(5) Termination of this agreement must be in writing to be effective.
XII. Final provisions
(1) Any additions and amendments of this contract and/or these Terms of Platform Use must be submitted in writing to be effective. This also applies to any amendments or waivers of this provision. Digital text documents do not fulfil the requirement of the written form.
(2) Customers’ General Terms and Conditions of Business are excluded even where customers refer to these Terms and Conditions in their orders or other documents.
(3) These Terms of Platform Use and contractual relations with the customer are governed by the law of the Federal Republic of Germany under exclusion of the United Nations´ Convention on the International Sale of Goods. However, this does not affect the legal regulations limiting the choice of law. The place of jurisdiction is governed by the legal provisions.
