General Terms and Conditions of myStrom AG, Alte Tiefenaustrasse 6, 3063 Ittigen, Switzerland, firstname.lastname@example.org (hereafter: myStrom)
Part 1 – General Provisions
- Scope and general provisions
- myStrom offers smart home products through the mystrom.com platform, and provides its customers with smart home software applications, including apps. The services of myStrom are exclusively based on these general terms and conditions in the version valid at the time of the order. Deviating terms and conditions are not valid, unless myStrom expressly agrees to them in writing.
- Only the German, French, Italian and English languages are available for the conclusion of the contract.
- myStrom is entitled to involve third parties in the provision of services.
- Unless otherwise stipulated, the contracts between myStrom and the customer are subject to the statutory warranty right.
Part 2 – Special provisions for the purchase of goods
- Conclusion of the contract for the purchase of goods
- The offers of myStrom on the Internet are a non-binding invitation to the customer to order goods or services. By submitting the order (clicking on the “buy now” button)on the myStrom website, the customer makes a binding offer for a contract.
- myStrom accepts the contract by asking the customer for payment after placing the order (e.g. PayPal or credit card payment).
- After the order has been sent by the customer via the myStrom online order form, these terms and conditions and, if available, the other contract texts will be sent to the customer in text form (e.g. email, fax or letter). No further storage of the terms and conditions and the other contractual texts by the provider shall take place.
- Before a binding order is placed via the myStrom online order form, the customer can correct their entries using the usual keyboard and mouse functions. In addition, all entries will be corrected before the binding submission of the order in the online order form/checkout area using the usual keyboard and mouse functions.
- myStrom is entitled to set quantity and amount limits for each order.
- Payment, default
- The prices listed on the website of myStrom at the time of ordering apply. All prices include German statutory VAT plus shipment costs.
- Retention of title
- myStrom reserves the right of ownership of the delivered goods to consumers until full payment of the purchase price due.
- The delivery times can be found in the offers. Any deviating delivery times are indicated on the relevant product page. The start of the delivery period specified by myStrom presupposes the timely and proper fulfilment of the customer’s obligations, in particular the correct indication of the delivery address within the scope of the order.
- If myStrom is not in a position to deliver the ordered goods because the supplier of myStrom does not fulfil its contractual obligations, the customer shall be informed immediately that the ordered goods are not available. myStrom and the customer are in this case entitled to cancel the contract. Any moneys already paid by the contracting party will be reimbursed immediately. The statutory rights of the customer remain unaffected.
- With respect to entrepreneurs, the risk of deterioration or loss of the goods passes to the customer upon delivery of the item to the transport company. If the handover or dispatch is delayed for reasons for which the customer is responsible, the risk shall pass to the customer on the day of notification of readiness for dispatch.
- Acceptance delay
- If the customer delays taking delivery of the goods or violates other obligations to cooperate, myStrom shall be entitled to demand reimbursement of any damages incurred by myStrom, including any additional expenses. The right to make further claims is reserved. This does not apply if the customer exercises their right of withdrawal by refusing to accept, if they are not responsible for the circumstance which has led to the impossibility of the delivery or if the customer was temporarily prevented from receiving the service offered, unless myStrom had notified them of the service well ahead of time.
- The purchase price shall be subject to interest during the delay, in accordance with legal regulations.
- For their part, the customer reserves the right to prove that damage of the amount demanded was not incurred, or was at least substantially lower. The risk of accidental loss or deterioration of the purchased item is transferred to the customer in the event of a cancellation or rescission of the purchase agreement, a return or a complaint.
If the purchased item is defective, the provisions of the statutory warranty shall apply.
Part 3 – Special provisions for the use of the software
- Services in connection with the provision of software
- myStrom provides a cloud-based smart home system (hereafter “software”) that can be used by the customer via the Internet. The current functionality of the software can be viewed on the myStrom website. myStrom will continue to develop the software at its own discretion. However, there is no right of the customer to demand a specific design of the myStrom infrastructure or to demand the development of certain software functions.
- Since the software is free, no permanent availability is guaranteed.
- Registration and conclusion of contract
- In order to use the myStrom software, the customer must create a myStrom user account.
- By registering and using the software, a user agreement is created between myStrom and the customer.
- The statutory warranty applies.
- Contract period and contract termination
- The contract is concluded for an indefinite period and may be terminated by either party without notice.
- Upon termination, the customer agrees to discontinue any use of the services and the client software, any client software that they have downloaded and installed on a computer, hard drive, or other storage device under their control, to delete and refrain from accessing the network or using another user account to access the network.
- Right of use of the licensed software
- myStrom products are protected by intellectual property rights. For the duration of the contract, the customer receives the spatially unlimited, non-transferable and non-exclusive right to make use of and to use the software as intended. The right of use is limited to the duration of the transfer in the sense of the preceding paragraphs and then ends automatically.
- All rights to myStrom’s existing intellectual property or intellectual property resulting in connection with the fulfillment of the contract remain with myStrom or its authorized licensors.
- The customer shall not modify, adapt, translate, reverse engineer, decompile, disassemble the software or create projects derived from the software.
- The customer is not entitled to make the software available to third parties for use, either for free or for a fee. Renting out the software is expressly prohibited to the customer. Furthermore, the customer shall not reproduce the software or allow the software to be accessed via a forum on a public computer or through a “shareware” distribution. In particular, the customer may not remove any references to the legal ownership of myStrom or its partners, use the myStrom brand without consent, or sell, assign or sublicense the software.
- Customer obligations
- The customer has to observe the applicable law when using the software. Customers are not entitled to use the software for purposes other than those provided for in this contract. The customer may not help other users who violate these terms and conditions to gain access to the service.
- myStrom is entitled to terminate, block and/or delete the customer’s account without prior notice in the event of a breach of these conditions. The respective sanction measure is at the discretion of myStrom, and depends on the type, severity and duration of the infringement. The same applies in the case of incorrect or incomplete information provided by the customer when concluding the contract or when ordering.
- Application or software issues are handled by myStrom as part of support. For the purpose of the fastest possible processing, support services must be requested via the communication channels provided for this purpose on the myStrom website or via the available support form. Support enquiries are processed chronologically in regular business hours according to the order of their arrival at myStrom. Urgent support requests outside normal business hours can be arranged for a separate fee.
- If myStrom is sued by third parties due to disruptions whose cause is not in the infrastructure of myStrom, the costs may be charged to the customer who caused the disruption.
- Maintenance and remote access
- myStrom is responsible for maintaining the myStrom infrastructure and is entitled to interrupt or restrict the operation of the software for the purpose of troubleshooting, maintenance, introducing new technologies, etc. myStrom shall fix disruptions that are within the influence of myStrom during the operating period within a reasonable period of time.
- For the purpose of control, configuration, updating and similar, myStrom is entitled to access the customer’s infrastructure used for the service provision and to view, modify, update, delete or otherwise control existing technical data or software. Via remote access, myStrom gets an insight into the customer’s technical data, which is directly related to the configuration of myStrom’s hardware, software and services.
- Storage of the data produced and data backup by the customer
- myStrom is not obliged to retain the data arising from the provision of the service to the customer until the end of the contract. The retention of the data and data accruing during use is guaranteed for 13 months in an uncanceled relationship. The data will be stored in Switzerland/EU. Regardless of the reasons or the authorship of the termination and upon contract termination at the latest, the data will be deleted and the linkage of this data with the customer will be removed and used in an anonymous manner for different surveys.
- myStrom is obliged to take appropriate precautions against data loss and to prevent unauthorised access to the customer’s data by third parties. For this purpose, myStrom creates daily backups and uses state-of-the-art firewalls. However, the data will be deleted after one year or upon termination of the contract.
Part 4 – Liability
- myStrom is liable for any legal reason whatsoever in cases of intent or gross negligence,
intentional or negligent injury to life, limb or health,
on the basis of a guarantee commitment unless otherwise stipulated or due to mandatory liability such as the product liability law.
- If myStrom negligently violates an essential contractual obligation, liability is limited to the contractually typical, foreseeable damage, unless liability is unlimited in accordance with the above clause. Material contractual obligations are defined as obligations the contract imposes on myStrom according to its contents, the fulfilment of which makes possible the correct execution of the contract, and upon compliance with which the customer may regularly trust.
- Liability of myStrom is excluded in all other instances.
- The above liability regulations also apply with regard to the liability of myStrom regarding its vicarious agents and legal representatives.
- The customer exempts myStrom from any claims of third parties – including the costs of legal defence in their statutory amount – asserted against myStrom due to the customer’s breach of law or of the contract.
Part 5 – Final provisions
- Data protection
- Malfunctions and safety regulations
- The system provided by myStrom is an electronic and web-based system whose functionality requires that certain preconditions be met. These in particular include the prerequisites described in the following paragraphs, the provision of which is the responsibility of the customer.
- It is the customer’s responsibility to provide sufficient technical infrastructure at the intended location of the device/system. We assume no responsibility for malfunctions due to a lack of technical infrastructure for which myStrom is not responsible (e.g. weak or fluctuating signal from the router, signal failures in the customer’s infrastructure, structural conditions at the installation site such as several-storey buildings, reinforced concrete walls between router and device, etc.). improper installation or damage caused by moisture, heat, dust, etc.).
- Switching devices on and off may also sometimes not occur at all, or may be delayed (too early or too late). Never connect devices that require monitoring by a person (e.g. stove, portable heaters, etc.) or exceed the technical capabilities of a device.
- myStrom will comply with all legal requirements for safe use of the devices and software. However, a secure application also requires correct handling by the user (customer). In this context, the customer is particularly responsible for compliance with the following obligations:
- It is the customer’s responsibility to take note of the safety instructions enclosed with the device before commissioning a device. If the customer does not understand these, use of the device is not recommended.
- The total consumption of devices connected to devices with a Swiss socket must never exceed 2375 watts. The total consumption of devices connected to devices with an EU/earthed socket must never exceed 3700 watts.
- The devices should only be used in a dry location. The devices are not to be used in bathrooms. No liquids may be spilled on the equipment, and the equipment should not be immersed in liquids.
- The devices must not be opened. There are no parts inside the equipment that can be repaired by laypersons. There is a risk of electric shock when attempting to repair the equipment yourself!
- No objects may be plugged into the openings of devices. Slots and openings in the housing are used for ventilation and must not be blocked or covered. Care must be taken to ensure that the devices have adequate ventilation so that the device does not overheat.
- Disconnect the power socket in order to disconnect the device from the mains.
- The devices should not be exposed to direct sunlight.
- The devices must not be installed in the immediate vicinity of a radiator.
- Before cleaning the housing, the devices must be disconnected from the mains. To clean the equipment, only use a lightly moistened cloth and never thinner, benzine, alcohol or other strong cleaning agents, as this may damage the housing.
- In case of damage, the device must be disconnected from the mains. Damage exists above all if the device/housing is damaged, if the device has been splashed with liquid or has been exposed to rain or if the device does not work for other reasons.
- The statutory warranty right and the provisions under the heading “Liability” remain unaffected by this clause.
- Final provisions
- The law of Switzerland applies insofar as this choice of law does not lead to a consumer being thereby deprived of mandatory consumer protection standards.
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the court at our registered office in Bern is competent, unless an exclusive place of jurisdiction for the dispute is justified.
- myStrom is entitled to change these terms and conditions for objectively justified reasons (e.g. changes in case law, legal situation, market conditions or corporate strategy) and within a reasonable period of time. Existing contractors will be notified of this by email no later than two weeks before the change takes effect. If the existing contractor does not object within the time limit set in the change notification, their consent to the change shall be deemed granted. Notification of the intended change to these Terms and Conditions will indicate the time limit and consequences of the objection or omission.
- myStrom may transfer the present contract or rights and obligations arising from it without the consent of the customer to a company of the majority shareholder.
- Information on online dispute resolution
The EU Commission provides a platform for online dispute resolution on the Internet at the following link: https://ec.europa.eu/consumers/odr
This platform serves as a point of contact for the out-of-court resolution of disputes arising from online purchase or service contracts involving a consumer. myStrom is neither willing nor obliged to participate in a consumer dispute resolution procedure under VSBG [Consumer Dispute Resolution Act.
The email address of myStrom can be found in the heading of these GTC.
Date: January 2019