BAYROL Solution Cloud Software Terms and Conditions
These General Terms and Conditions of Use for the Bayrol Solution Cloud Software (hereinafter referred to as the "General Terms and Conditions of Use") set out the conditions under which BAYROL Deutschland GmbH, registered under HRB 107891 Amtsgereicht München (hereinafter referred to as "BAYROL" or "Service Provider"), grants the customer (hereinafter referred to as "Customer") a right to use the BAYROL Solution Cloud Software and provides maintenance for said Software.
BAYROL and the Customer are jointly referred to as the "Parties" and individually as "the Party".
1) DEFINITIONS
Capitalised terms used in these General Terms and Conditions of Use, whether in the singular or plural, shall have the meanings given to them below.
Contract: refers to this contract;
Data: refers to the information, publications and, in general, the data in the Customer database, the use of which is the subject of this contract and which can only be accessed by the Customer;
Personal Data or Personal Information: refers to any information relating to an identified or identifiable natural person within the meaning of the GDPR, which the Service Provider processes on behalf of the Client.
Identifiers: refers to both the unique identifier assigned to the Client ("login") and the login password ("password"), provided after registration for the service;
Internet: refers to all interconnected networks located in all regions of the world;
Software: refers to the software provided by the Service Provider to the Client and in particular the associated Solutions. The definition of Software covers that of Solutions.
GDPR: refers to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
Application Service: refers to the service offered by the Service Provider, enabling the Customer to use the Solutions;
Solutions: refers to the operational functions listed in the appendix to the contract and made available to the Customer as part of the Application Services covered by the contract;
Processing: refers to any operation or set of operations performed on Personal Data, including the collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or combination, restriction or erasure of Personal Data.
Personal Data Breach: means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.
2) PURPOSE
The Customer wishes to use software to assist in the treatment of private swimming pools and spas in order to recommend tailor-made treatment to its customers who own swimming pools or spas. In accordance with the commercial agreements (Special Terms and Conditions of Sale) established between the two parties, the Service Provider undertakes to make the BAYROL Solution Cloud Software available to the Customer, a set of application solutions accessible on its server via the Internet, in accordance with the detailed description in the Appendix.
The Service Provider undertakes to use all necessary means to make the Software available remotely and to provide the Customer with the Application Services in accordance with the Contract.
The Customer acknowledges that it has received all the necessary information from the Service Provider and has been warned about the capabilities and objectives of the solution.
The Service Provider grants the Client, who accepts:
a right to access the Service Provider's servers under the conditions defined below;
the right to end use of the Solutions;
a set of services listed in the Appendix below, including data hosting,
application service maintenance, and technical support.
3) USE OF THE BAYROL SOLUTION CLOUD SOFTWARE
The BAYROL Solution Cloud Software is intended for professional Customers, swimming pool and spa experts, resellers of BAYROL brand water treatment products and their employees.
The Customer undertakes not to interfere with the Service in any way whatsoever and, in particular, not to use the Service in a manner that is inconsistent with its intended purpose and the terms and conditions set out in the Contract.
Consequently, the Customer shall refrain from reverse engineering the Service with a view to developing a competing product or service and/or copying or reproducing any features, functions or graphic attributes of the Service.
The Customer:
guarantees that its employees who use the solution will comply with this Contract;
shall be personally responsible for complying with the obligations incumbent upon them as data controller under the terms of the GDPR and the provisions of Law No. 78-17 of 6 January 1978. In particular, given the authorised use of the Service by the Customer, the latter shall refrain from sending or storing non-professional data and, more generally,
data that is unlawful, obscene, defamatory or illegal or in violation of the rights of a third party, the protection of minors or privacy;
undertakes not to distribute the Service, exploit it for commercial purposes or make it available to third parties;
undertakes not to alter or disrupt the integrity or performance of the Service or the data contained therein;
not to attempt to gain unauthorised access to the Service or to the systems or networks associated with it.
4) LICENCE
The Service Provider grants the Customer a personal, non-exclusive, non-assignable and non-transferable right to use the BAYROL Solution Cloud Software for its own needs.
The Customer may only use the Application Services and Solutions in accordance with its needs and their documentation. In particular, the licence relating to the Solutions is granted for the sole and exclusive purpose of enabling the Customer to use the Services, to the exclusion of any other purpose.
The right of use refers to the right to represent and implement the Application Services in accordance with their intended purpose, via a connection to an electronic communications network. The Customer may not under any circumstances make the Solutions available to a third party, and strictly refrains from any other use, in particular any adaptation, modification, translation, arrangement, distribution or decompilation, without this list being exhaustive.
The Customer shall ensure that its staff and subcontractors comply with these general terms and conditions. The right of use is granted for a maximum period of one (1) year.
5) WARRANTY AND MAINTENANCE
Warranty of non-infringement. The Service Provider warrants to the Customer that the Software does not infringe any intellectual property rights belonging to a third party.
Performance warranty. The Service Provider warrants that the Software complies with the specifications described in the Detailed Description for a period of twelve (12) months from the date of delivery of the access codes to the Application Services.
Under this warranty, the Service Provider may provide corrective maintenance services at no cost to the Client.
Maintenance and New Versions. Beyond the aforementioned performance warranty period, the Service Provider shall provide Software Maintenance services and shall ensure that the Client is protected against any anomalies, incidents, errors or malfunctions in relation to the specifications.
Any malfunction that prevents the normal operation of the software is considered an anomaly.
In the event of an incident, the Service Provider undertakes to remedy, free of charge, any incident detected, identified and reproducible by the Licensee, as quickly as possible and to the extent possible. Software Support Services will be provided by the Service Provider and its service providers in accordance with the following terms and conditions:
Technical support for the BAYROL Solution Cloud software can be contacted via the technical contact form in the software.
Requests are handled within a maximum of 48 working hours and incidents are dealt with as quickly as possible, depending on the technical impact.
The Maintenance service includes the correction of Anomalies detected within a given version of the Software. A "New Version" of the Software corresponds to a version that includes substantial additions to its functionality. The Service Provider undertakes to inform the Customer, at least one month before the release of a New Version, of all its features.
The Service Provider shall not be responsible for maintenance in the following cases:
refusal by the Customer to cooperate with the Service Provider in resolving anomalies, in particular by responding to questions and requests for information;
use of the Application Services in a manner that does not comply with their intended purpose or documentation;
unauthorised modification of the Solutions by the Client or a third party;
the Customer's failure to fulfil its obligations under the Contract;
installation of any software packages, software or operating systems that are not compatible with the Application Services;
failure of electronic communication networks;
deliberate acts of damage, malicious acts or sabotage;
damage due to force majeure or misuse of the Application Services.
6) SUBLICENCE
The Customer may only use the BAYROL Solution Cloud Software for its own needs. It is therefore prohibited from granting sub-licences. The Customer may not grant the right of use to third parties, even free of charge.
7) DATA PROTECTION
a) Characteristics of the processing
The Service Provider acts as a processor within the meaning of the GDPR when it provides the cloud computing service underlying the provision of the BAYROL Solution Cloud Software, the processing having the following characteristics:
duration: until the data is deleted by the Customer, it being specified that data from accounts that have been inactive for more than 3 years will be automatically deleted, as will data within a reasonable period after the end of the Contract (in the latter case, after the Service Provider has sent a copy to the Customer);
nature and purpose: recording, analysis, sending of automated emails, anonymisation;
type of personal data: surname and first name, postal address, email address, telephone number, place of residence;
categories of data subjects: the Client's customers, contacts with the Client's customers.
b) Obligations of the Service Provider as a processor
In its capacity as a processor, the Service Provider:
shall only process personal data on the documented instructions of the Client in its
as data controller as set out in this Agreement and in the instructions underlying the use of the software, unless the Service Provider is required to do so under German or European law; in this case, the Service Provider shall inform the Client of this legal obligation prior to processing, unless the law prohibits such information on important grounds of public interest;
ensures that persons authorised to process personal data undertake to respect confidentiality or are subject to an appropriate legal obligation of confidentiality;
takes all security measures required under Article 32 of the GDPR, it being specified that the security measures implemented include:
− a secure HTTPS connection,
− access to the service via a personal password,
− storage of passwords with strong encryption,
− personal data is stored in encrypted form;
being hereby authorised by the Customer to recruit other subcontractors, informs the Customer of any planned changes concerning the addition or replacement of other subcontractors, thus giving the Customer the opportunity to raise objections to these changes, with the Customer undertaking to notify any objections within five days;
in the event of the recruitment of a subcontractor, enters into a contract with the latter containing the same data protection obligations as those set out in these general terms and conditions, subject to any reasonable limitations, in particular with regard to audits and inspections and liability limits;
when recruiting a subcontractor that is not established in the European Economic Area or in a third country, territory or one or more specific sectors in that third country, which ensures an adequate level of protection according to a decision of the European Commission, concludes on behalf of and for the account of the Client, who grants full powers to the Service Provider for this purpose with the option of substitution in favour of any subcontractor (and undertakes to confirm this delegation of powers upon first request), the standard data protection clauses adopted by the European Commission in its Decision 2010/87/EU, as amended or replaced, Annex 1 may be completed with all or part of the characteristics of the processing operations set out in these general terms and conditions of sale and Annex 2 with the security measures proposed by this subcontractor, the clauses may be accompanied by any interpretative annexes in order to make them consistent with the obligations agreed with this processor, particularly with regard to auditing and inspection;
assists the Client in fulfilling its obligation to respond to requests from data subjects to exercise their rights under Chapter III of the GDPR by ensuring that the cloud computing service has adequate access and erasure features;
assist the Customer in complying with its obligations under Articles 32 to 36 of the GDPR by providing any useful information on the organisational and technical measures put in place that the Customer may reasonably request for the purposes of ensuring their security and for the purposes of any impact assessment and possible consultation with a supervisory authority to which it may give rise, and by notifying the Service Provider of any Personal Data Breach as soon as possible after becoming aware of it;
deletes all personal data or returns it to the Service Provider at the end of the provision of services relating to the processing, and destroys any existing copies, unless German or European law requires the retention of personal data;
provide the Client with all the information necessary to demonstrate compliance with the obligations set out in this article and to enable audits, including inspections, to be carried out by the Client or a representative thereof, and contribute to such audits, it being agreed that, unless required by the German Data Protection Authority (Commission Nationale de l'Informatique et des Libertés), the audit shall take place during business hours and after reasonable notice. There shall be no more than one audit per year. The Client shall have no direct access to the Service Provider's computer systems in the context of an audit. The Service Provider shall comply with the Service Provider's security policies and the auditors shall be bound by an obligation of confidentiality. In the event of an audit of a subcontractor, the terms of the contract with that subcontractor relating to audits shall apply;
immediately inform the Client if, in its opinion (but without being required to carry out checks), an instruction constitutes a breach of this regulation or other provisions of German or European law relating to data protection.
The Service Provider's liability under its obligations as a subcontractor under this article is limited as indicated in Article 10) below, to the extent that this limitation of liability is not contrary to the law.
8) PRICE AND TERMS OF PAYMENT
In return for the licence to use the BAYROL Solution Cloud Software, the Customer undertakes to pay the price indicated in the order form in accordance with the terms of payment specified in the General Terms and Conditions of Sale of BAYROL.
The Customer shall have no rights to the Software other than those expressly granted herein.
9) OWNERSHIP
The Service Provider is and remains the owner of the property rights relating to any element of the Solution made available to the Customer, and more generally to the IT infrastructure, both software and hardware, implemented or developed under this Agreement.
This Agreement does not confer any ownership rights over the Solution on the Customer. The temporary provision of the Solution under the terms and conditions set out in this Agreement shall not be construed as the transfer of any intellectual property rights to the Customer within the meaning of the German Intellectual Property Code.
The Customer shall refrain from reproducing any element of the Software, or any documentation relating thereto, by any means whatsoever, in any form whatsoever and on any medium whatsoever, except for the exclusive purposes of Customer training.
Sublicence. The Customer may only use the BAYROL Solution Cloud Software for its own purposes. It shall therefore refrain from granting sublicences. The Customer may not grant the right of use to third parties, even free of charge.
Data. See the section entitled "DATA PROTECTION".
10) LIABILITY
The Service Provider undertakes to fulfil its obligations under the Contract.
The Service Provider shall not be held liable for any (i) direct, (ii) material or (iii) foreseeable damage caused by misuse of the software.
Under no circumstances shall the Service Provider be liable for indirect, immaterial or unforeseeable damage within the meaning of Articles 1231 et seq. of the Civil Code, which include, but are not limited to, any loss of earnings, commercial damage, loss of turnover or profit, loss of customers, loss of opportunity, inaccuracy or corruption of files or data, cost of obtaining a substitute product, software, service or technology, and any damage caused to its property.
In any event, the amount of the Service Provider's financial liability in connection with the Services is limited per contract year to 100% of the amount of the sums excluding tax received by the Service Provider under this contract during the twelve months preceding the occurrence of the damage.
The Service Provider shall not be held liable for any interruptions, slowdowns or inaccessibility of the Internet or any other problem affecting transmissions on telecommunications networks and disrupting the normal performance of the Services.
The Service Provider shall not be held liable, where applicable, for the accidental destruction of Data by the Client or a third party who has accessed the Application Services using the Login Details provided to the Client.
Furthermore, the Service Provider shall not be held liable for any errors in the entry of data into the software and the consequences thereof.
11) FORCE MAJEURE
Neither Party shall be held liable for the non-performance of any of its contractual obligations due to the occurrence of a force majeure event.
The Parties agree that a case of force majeure, in addition to the definition given by case law, shall include the following events in particular: attacks, acts or omissions by a public authority, including changes to any regulations applicable to the performance of the Services, limited access by a domain owner or manager, riots, wars, whether declared or not, strikes, sabotage, theft, acts of vandalism, explosions, fires, lightning, floods and other natural disasters, operator failures.
In order to benefit from the provisions of this article, the Party wishing to invoke a case of force majeure must notify the other party as soon as it becomes aware of the occurrence of such an event.
During its duration, the force majeure event suspends the performance of the obligations of the Party invoking it.
In all cases, the party affected by the force majeure event shall do everything in its power to avoid, eliminate or reduce the causes of the delay and resume the performance of its obligations as soon as the event invoked has disappeared.
12) TERMINATION
In addition to the general causes for termination of contracts, the following shall be causes for termination of this Contract:
12.1. By the Service Provider. The Service Provider reserves the right to unilaterally terminate the user licence and maintenance services, without prejudice to damages, in the following cases:
non-payment by the Customer for use of the user licence or maintenance within each contractual term,
infringement of copyright and any Intellectual Property Rights,
breach of the stipulations set out in this Agreement binding the Customer and the Service Provider.
12.2. On the part of the Client. The Client may decide to terminate the maintenance services in the event of serious non-performance of the services by the Service Provider, by simple notification by registered letter with acknowledgement of receipt sent to the Service Provider.
13) CONSEQUENCES OF TERMINATION OF THE CONTRACT
Upon termination of this Contract for any reason whatsoever, the Client shall cease all use of the Software and Services and all use of the Service Provider's trademarks, logos and distinctive signs, and the Service Provider shall immediately return to the Client a copy of all Data in a structured and commonly used format. This return shall be recorded in a report dated and signed by the Parties. Once the return has been made, the Service Provider shall destroy the copies of the Data held in its computer systems within a reasonable period of time and provide proof of this to the Customer within a reasonable period of time following the signing of the return report.
14) APPLICABLE LAW AND JURISDICTION
14.1. The usage agreement and these General Terms and Conditions of Use are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and conflict of laws provisions.
14.2. If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the service provider's place of business in Munich. Overriding statutory provisions, in particular those relating to exclusive jurisdiction, shall remain unaffected.
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APPENDIX
Detailed description of the BAYROL Solution Cloud software
Specific features of the BAYROL Solution Cloud software
This software focuses on analysing the water parameters of private swimming pools.
The recommendations are comprehensive and accurate.
The software is hosted on a remote server. It is accessible via a web browser and
is secured by unique identifiers.
1) CONDITIONS OF ACCESS
Cloud. The software is accessible via a remote access solution and requires an active internet connection to function.
Compatibility and hardware requirements. It can be accessed from any workstation. It is compatible with iOS and Android for display on smartphones and tablets (see TECHNICAL REQUIREMENTS below).
Security. It requires the Customer to set up a unique username and password via a link sent automatically when the order is processed. The username and password are created by the Customer before downloading/first use of the software. If the username and password are forgotten, an automatic email sent to the customer allows them to retrieve the username and generate a new password.
2) INPUT DATA
Water parameters. The software performs a diagnosis based on the values of the following parameters: pH, TAC, Chlorine or Bromine, Iron, Copper, Phosphates, Stabiliser, Hardness and Salt ( ). This data is either entered manually or automatically integrated via Lamotte's SpinLab and SpinTouch photometers*.
* Conditions for automatic data retrieval from Lamotte photometers.
SpinLab. The parameter values established by SpinLab are automatically integrated into the software only on PC desktop computers (excluding Macs), in wired mode (= connected via a USB cable).
SpinTouch. The parameter values established by SpinTouch are automatically integrated into the software in the following cases:
on PC desktop computers in wired mode only
On Mac computers, data from SpinTouch must be entered manually by the Customer.
Additional data. The following data is entered manually: pool volume or dimensions, filter type (sand, glass, cartridge, etc.), type of disinfectant used (chlorine, bromine, active oxygen, salt) and water temperature.
3) OUTPUT DATA
Reports. The main function of the software is water analysis.
The analysis reports ("prescriptions") present a summary of the input data, the diagnosis made on the basis of non-combined scenarios, with simple conditional formulas, and the solution (= recommended treatment).
Water analysis reports can be exported in PDF format. These reports can be printed or sent by email from the Solution.
General advice. The software also offers general advice in case of problems (e.g. presence of algae) and for regular pool treatment.
4) BACKUP, HISTORY AND DATABASE
The BAYROL Solution Cloud software offers backup and history storage. It allows you to build a customer database.
The BAYROL Solution Cloud software generates statistical data, which is communicated to the Service Provider.
5) TECHNICAL REQUIREMENTS
a) For use of the software.
(i) Desktop computer
Operating system:
- Microsoft Windows in versions supported by Microsoft
- Mac OS in versions supported by Apple
Browser:
- Google Chrome: latest version supported by Google
- Firefox: latest version supported by Mozilla
- Microsoft Edge: latest version supported by Microsoft
- Safari: latest version supported by Apple
(ii) Mobile phones and tablets
Operating system:
- Android in versions supported by Google
- iOS in versions supported by Apple
Browser:
- Chrome on Android (provided with the system)
- Safari on iOS (provided with the system)
b) For connection with SpinLab/SpinTouch (according to Lamotte's recommendations)
(i) Wired/USB connection
Desktop computer:
- Windows Professional 64-bit system
- Requires the installation of additional driver software (and Waterlink Connect)
Mobile phones and tablets cannot use SpinLab and SpinTouch with a wired connection
These technical requirements are subject to change.