À PROPOS DE DEXMA

Conditions d’Utilisation de la Plateforme DEXMA

La traduction du document ci-dessous sera effectuée dans les plus brefs délais. En attendant, n’hésitez pas à nous contacter si vous avez des doutes concernant les conditions d’utilisation de la Plateforme DEXMA: legal@dexma.com.

Welcome

By sending your first Order Form to which this Agreement is attached, or where applicable, by clicking on the « I accept » button that is shown as a part of the access process for the first time, you (the “Client”, “You”) accept the following conditions (this “Agreement ») governing the use of the Service (as defined below).

If you accept this Agreement in the name of a company or another legal entity, you represent and warrant that you have the authority required to bind that entity to these conditions, in which case the term « Client » shall refer to that entity. If you do not have this authority or do not accept these conditions, you may not enter into this contract and where applicable you must select the « cancel » button. You will not be able to use the service.

0. Definition

Contents” means audio-visual information, documents, software, products and Services included or made available to the Client during the use of the Service.

Fees” means the amount specified on the applicable Order Form for your Subscription or any subsequent renewals, for the specified number of Users.

« DEXMA Technology » means all the technologies owned by DEXMA (among which are included software, hardware, products, processes, algorithms, user interfaces, knowledge and procedure, techniques, designs and other tangible or intangible technical materials or information) made available to the Client when providing the Service.

Intellectual and Industrial Property Rights” means unpatented inventions, patent applications, patents, logotype rights, author rights or copyright, trademarks, service marks, trade names, domain name rights, design rights, rights of creation and other rights of commercial secrets as well as all other intellectual and industrial property rights derived from these and all the forms of protection of a similar nature in any part of the world.

Order Form” means (a) one or more mutually agreed order forms, statements of work, or similar transaction documents or (b) an order placed by you with DEXMA for your Subscription (online or on paper) and any subsequent renewals.

Service” means the online application of DEXMA (Old: DEXCell Energy Manager), including Energy Grader, Dexma Detect, and Dexma Analyse services, and the mobile devices when these are available, as well as secondary online or offline products and Services that DEXMA offers to the Client and to which the Client can have access under this Agreement, including DEXMA Technology and the Contents. The Service is offered in various editions and packages that may differ considerably in functionalities. Consult http://www.dexma.com/pricing/ to learn the differences between the different products.

Subscription” means the authorised access to and use of the Service and other entitlements as described on your Order Forms and herein, provided to you for the Term of this Agreement.

Client Data” means any data, information or material that Client has transmitted or uploaded to the Service during the use of the Service.

1. License Grant and Conditions

    1. Subject to compliance with the terms of this Agreement, the Client is granted a worldwide, non-transferable and non-exclusive right to access and use the Service, for its own company-internal use only, subject to the conditions set out here, including the terms of your current and subsequent Order Forms. Support on the Service is provided under the terms of the SLA in Annex 1 hereto.
    2. The Client will not have access to the Service if it is a direct competitor of DEXMA, unless there exists a previous written consent by the latter. Also, it will not be able to have access to the Service in order to supervise the availability, performance or functionality or with other competitive or benchmarking purposes. In the event that the aforementioned occurs, Client’s access may be revoked or renewal denied without any right to a refund.
    3. As conditions of this Agreement, the Client may not (i) license, sublicense, sell, resell, transfer, assign, distribute or make available to third parties, or exploit commercially with third parties the Service or Contents, in whole or part; (ii) modify or make works derived or based on the Service or Contents; (iii) create Internet « links » to the Service or « mask » or « duplicate » the Service or Contents in or through any server or wireless or Internet-based device; or (iv) carry out any reverse engineering or access to the Service or modify the software and technology platform underlying the Service, to (a) create a competing product, software or service, (b) create a software, product or service using ideas, features, functions or graphics similar to those of the Service, or (c) copy any ideas, features, functions or graphics of the software, product or Service.
    4. In addition, the Client may not and will ensure that its internal authorised users will not, through or via the Service: (i) send or store material that contains software with virus, worms, trojans or codes, files, command sequences, harmful computer agents or programs; (ii) interfere or affect the integrity or performance of the Service or the data it contains; or (iii) try to obtain unauthorised access to the Service or related systems or networks.

2. Client obligations and responsibilities

    1. The Client is responsible for all and any activity carried out in its Client account, and must comply with all applicable local, state-wide, national or international laws, treaties and regulations related to the use of the Service, including without limitation uses related with data privacy, international communications and transmission of technical or personal data.
    2. The Client must: (i) keep complete, accurate and updated information on Client account at all times. DEXMA will not be responsible for errors or delays arising from incomplete, inaccurate or outdated information. (ii) keep access codes confidential and notify us immediately of any unauthorized use of passwords or accounts or any other breach of security that is known or suspected; (iii) inform us immediately and do everything possible in order to stop immediately any unauthorised copy or distribution or use of the Service of which the Client or its authorised internal end-users become aware or suspect; and (iv) not pretend to be another user of the Service or offer information or false identity to obtain access to or use of the Service.
    3. User accounts cannot be shared or used by more than only one user, but they can be reassigned at a given moment to new users that replace previous users that have finished their work or changed the state or function of work and will not keep on using the Service. Additional Users may be added for a fee during the Term and shall terminate on the same date as the pre-existing subscriptions.
    4. The Client agrees that the Subscription is neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written public comments made by DEXMA regarding future functionality or features. The Client acknowledges that transmission of data through the Internet is relative, since they circulate on heterogeneous networks whose characteristics and technical capacities are diverse, which are from time to time overloaded and/or may be subject to dysfunctions, rerouting, or security breaches. Use of the Services is in this respect made at Client’s own risk and under Client’s sole responsibility.

3. Charges and payment of fees

    1. Fees for the Cloud Services (the « Fees ») will be identified in an Order Form. As a material condition of the Agreement, the Client undertakes to pay all the periodical payments and charges, including any applicable VAT or sales tax thereon, for its use of Service when they become due, in accordance with charges in force from time to time and any invoice terms by giving you thirty (30) days notice. If you do not reject such price change in writing requesting termination of the Service or in the even you continue using our Service after thirty (30) days after notice is sent, you are deemed to have accepted the new fees and/or terms. All Fees are non-cancellable and non-refundable, expect as otherwise set out in this Agreement, and are stated net of any applicable withholding taxes.
    2. Unless otherwise specified in the Order Form, Fees are due on signature date of the applicable Order Form and due in the currency set forth in the applicable Order Form. Overdue amounts are subject to interest at a rate of one percent (1.0%) per month, or the maximum rate permitted by law, whichever is the lowest.
    3. The right to use the Service may be suspended or terminated on written notice to Client if payment is overdue or cannot be made for any reason. In the event of termination, the Client must pay all pending balances of its account, calculated according to the previous section, and any accrued interest.

4. Client Data

    1. The Client alone is responsible of the accuracy, quality, integrity, legality, reliability, suitability and intellectual property rights in the use of all Client Data uploaded or transmitted by the Client to the Service, and neither DEXMA nor its suppliers will be responsible for its elimination, correction, destruction, damage, loss or error arising during the storage of the Client Data.
    2. You represent that Client Data, the use of the Client Data and any other activities in connection with the Service do not violate, infringe or misappropriate any third party’s rights.
    3. Any Client Data may be retained, deleted and/or discarded on notice to Client if the Client fails to fulfil any of its obligations or breaches any conditions of this Agreement, including without limitation the obligation to pay fees for the Service.
    4. For purposes of maintenance, statistics and for developing, improving and providing DEXMA’s products and services, the data read from the Clients’ measuring devices may be randomly and anonymously recorded and processed by DEXMA and its technology suppliers.

5. Term and Termination

    1. The Term of this Agreement is annual from the date of (a) Client’s first registration and access to the Service, or (b) the date set out in the Order Form, and is automatically renewed for annual periods.
    2. The Client may terminate this Agreement or reduce the number of measuring devices or locations, with effect only at the expiration of the license period in force at that time, by notifying DEXMA in writing at least ten (10) working days before the invoice date of the following period.
    3. This Agreement may be terminated if one Party has materially breached this Contract for any reason (including without limitation the non-payment of the pending fees), and said breach has not been corrected in a period of fifteen (15) days after the notice of breach from the non-breaching party, then the latter may terminate this Agreement on written notice with immediate effect.
    4. In the event of termination of this Agreement for breach by Client, unless otherwise agreed in writing with DEXMA, all Client rights to access or use the Service and Client Data will terminate immediately and DEXMA will not be obliged to preserve or send any data to the Client. Otherwise, all data will be made available to Clients for a period of 30 days.
    5. Upon any termination of this Agreement, no further Subscriptions will be provided. Client must immediately pay any outstanding, unpaid fees. Termination is not an exclusive remedy and all other remedies provided by law are still available post termination.
    6. Clauses 6 to 12 survive termination of this Agreement.

6. Privacy / Data Protection

    1.  In accordance with the General Data Protection Regulation 679/2016, and Spanish Organic Law on Data Protection 3/2018, processing the personal data of the commercial and technical contact persons of the Client (name, surname, position, email address and telephone), as well as the identification and contact data of the authorised users of the Client, is necessary for the performance of this Agreement for and providing the Service. This personal data will not be shared with any third party except the DEXMA’s service providers, with whom it has contracts for data processing according to the applicable regulations. DEXMA will keep the mentioned data for the duration of the contract and, stored under lock, for 6 years after its termination, for tax, administrative and legal purposes
    2. The Client agrees to inform the mentioned persons of the possibility of exercising their rights of access, rectification, erasure and object, limitation and restriction of processing in the terms established by the current legislation, by writing to DEXMA at legal@dexma.com. They may, if they so wish, also file a complaint, if any, with the Spanish supervisory authority (Agencia Española de Protección de Datos). The Client declares that the data of the aforementioned persons are correct and updated and undertakes to communicate the provisions of this clause to the aforementioned persons.
    3.  If, during the performance of the Agreement, DEXMA has access to personal data under the responsibility and on behalf of the User, a Data Processing Addendum will be signed.
    4.  In connection with such processing, DEXMA will: (a) adhere to all applicable Privacy Laws, (b) act only in accordance with the requirements of this Agreement (c) will not process Personal Data for any other purpose other than that specified in this Agreement and (d) will not communicate any Personal Data (not even for its preservation) to any third parties.
    5. On termination of the processing, we will return all such data to you or destroy any remaining copies of such data unless required to maintain such data by law, in which case it will remain blocked.
    6.  In accordance with applicable law, DEXMA hosts the user data within the Services with the technology platform provider for the Services, being Google Ireland Ltd (Gordon House, Barrow Street, Dublin 4, Ireland) and backs-up that data with Amazon Web Service Ireland under contracts that comply with the applicable privacy regulations.

7. Warranties

    1. Subject to the terms of this Agreement, DEXMA shall use commercially reasonable efforts to provide you with access to the Service subscribed on your Order Form. The Service will be provided according to the general standards of the sector applicable to this technology.
    2. As Client’s sole remedy and DEXMA’s sole liability for breach of the foregoing warranty, DEXMA will remedy under the terms of the SLA in Annex 1 at no extra charge to Client any non-confirming performance reported by Client provided notice is made within two (2) days of the incident. If DEXMA cannot substantially correct the breach under the SLA in a commercially reasonable manner, you may terminate your Subscription and receive a pro-rata refund of the Fees paid for the deficient Service as of the effective date of termination. This clause 7.2 shall not apply where any modification is made to the Service or underlying Software by Client or any third party.
    3. The limited warranties provided by DEXMA in this Clause do not cover: (a) parts of the Service or underlying Software that have been subjected to misuse, tampering, experimentation, alteration, or negligence by Client or any third party on behalf of Client; (b) issues arising from Client’s network connections or caused by the Internet; (c) damages that occurs due to act of God, failures due to power surge; (d) any other materials or Services provided by anyone other DEXMA where applicable; and (e) repairs to the Service or underlying software by anyone other than DEXMA;
    4. Other than expressly stated in this clause, the Service is provided “as is” and all other implicit or explicit conditions, representations and warranties, whether legal or of any other kind, including without limitation warranty of merchantability, satisfactory quality, or fitness for a particular purpose or non-infringement, are disclaimed to the maximum extent permitted by the applicable law.
    5. There is no warranty that the Service will be uninterrupted or error free; nor any warranty as to the results that may be obtained from the use of the Service or as to the accuracy, reliability, or content of any information or services contained in or provided through the Service. You agree not to hold us liable for the content or loss of any data transferred either to or from you by you via the Service.

8. Liability

    1. To the maximum extent permitted by applicable law, on no account will DEXMA, its suppliers and licensors, and/or their subsidiaries, affiliates, directors, employees, legal representatives and agents, be responsible for any indirect, punitive, special, exemplar, accidental or other kinds of damages (including without limitation loss of data, income, benefits, use or other economic advantages) arising out of or in any way relating to this Agreement, derived from this Service or related with the same in any way, including derived from the use or the incapacity to use the Service, or due to any Contents obtained through the Service, or any interruption,  imprecision, error or omission, regardless of its cause, including without limitation, damages for loss of goodwill, work stoppage, lost profits, loss of data, computer failure or any and all other commercial damages or losses regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based.
    2. For all events and circumstances, the maximum aggregate and cumulative liability of DEXMA or its suppliers for any claim hereunder will be limited to direct damages and will not exceed the amounts actually paid by Client for the part of the Service giving rise to any liability during the last twelve (12) months immediately preceding the presentation of the corresponding claim.

9. Indemnity

    1. Each party agrees to indemnify and hold the other, its suppliers and any of their parent company and affiliates, board,  director, employee, legal representative and agents, harmless from and against any claim, costs, damages, losses, liabilities and fees (including legal costs) arising from: (i) a claim stating that use of the Service or of any Client Data respectively infringes the rights of third parties or has provoked damages to third parties; (ii) a claim which, in case of being true, would constitute the breach of that Party’s declarations or obligations hereunder; or (iii) a claim derived from the breach of this Agreement by that Party; provided in all cases that the indemnified party (a) notifies the claim in writing immediately to the indemnifying party; (b) confer it exclusive control over the defence and resolution of the claim (provided it does not resolve or defend any claim unless it exempts such parties unconditionally from all responsibility and said resolution does not affect them or the Service); (c) offer the other Party all reasonable information and help; and (d) has not already settled or resolved said claim.

10. Confidentiality

    1. Each Party agrees to maintain the confidentiality of any proprietary information (include without limitation non-public trade secrets, proprietary information, ideas, works of authorship, know-how, processes and any other information or data related to the products and Services of the disclosing party, its business and contractual relationships) (« Confidential Information ») received from the other party during the term of this Agreement and for one year after its termination.
    2. Each Party agrees not to use said Confidential Information for any purpose except as necessary to fulfil its obligations and exercise its rights under this Agreement. Except as and when required to do so by competent administrative authority or court of law, neither party shall disclose Confidential Information of the other to any third party.
    3. In the event of any governmental administrative or judicial request for any data of the other party, the receiving party shall promptly notify the other party if any Confidential Information is required or requested to be disclosed and, so far as it is permitted by law, seek approval from the other party regarding the manner of such disclosure and the content of any announcement or, at the expense of the other party, co-operate with any reasonable action which it may elect to take to challenge the validity of such requirement.

11. Intellectual and Industrial Property

    1. DEXMA and its licensors hold all rights, title and interests, including without limitation all Intellectual and Industrial Property Rights in the Service, including without limitation the DEXMA (Old: DEXCell Energy Manager) Technology, Contents, Apps, the Service user interface, as well as of any suggestion, idea, request for improvement, comment, recommendation or any other information that has been offered by the Client or any other party related with the Service. All rights that are not expressly granted remain reserved to DEXMA.
    2. This Agreement does not involve a sale of any product and does not confer to the Client any property right to or in the Service, including without limitation the technology underlying the Service or any Intellectual or Industrial Property Rights therein held by DEXMA and its licensors, distributors and other business partners.

12. Other

    1. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. This Agreement has for only parties Dexma Sensors SL and the Client.
    2. Governing law and Jurisdiction. This Agreement is governed by the laws of Spain, without giving effect to the conflict of law principles thereof. The application of the United Nations Convention of Agreements for the International Sale of Goods is expressly excluded. All disputes arising under or relating to this Agreement shall be resolved exclusively in the courts and tribunals of the City of Barcelona, Spain.
    3. Compliance. Dexma complies with all local and national regulatory requirements (money-laundering, anti-bribery, anti-corruption, data protection, etc.) and will provide on written request from the Client written confirmation of compliance and summary of compliance procedures.
    4. Waiver. The waiver of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach.
    5. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding shall not affect the validity of the other parts of the Agreement.
    6. Assignment. Client may not assign this Agreement without DEXMA’s prior written consent which shall not be unreasonably withheld. DEXMA may assign this Agreement without need of your consent (a) in the event of any merger, acquisition, or corporate reorganisation or (b) to a purchaser of all or substantially all of its assets.
    7. Force Majeure. Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.
    8. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, by fax, overnight courier Services or mailed by first class, registered or certified mail, postage prepaid, to you at the address listed on the Order Form (addressed to the person named as contact person on the Order Form) and to DEXMA at c/ Marie Curie, 8 – 08042 Barcelona (Spain); or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
    9. DEXMA reserves the right at all times to propose modified terms of this Agreement, which will enter into force on agreement with Client and/or any subsequent renewal of the term of the Agreement. If Client no longer wishes to be bound by the Agreement following such modification, Client may terminate the Agreement on notice to DEXMA.
    10. Entire Agreement. This Agreement (including corresponding Order Forms) constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof and prevails over any contradictory terms of any Order Form (unless expressly provided therein), which are governed by the terms hereof.

Each party has read, understands and agrees to the terms and conditions and to the use of English as the language of this Agreement, which may be incorporated in other documents or executed via facsimile, electronic online communications, or via emailed PDF-format document (or other mutually agreeable document format). The person accepting this Agreement (via any Order Form) warrants that he/she has authority to do so on behalf of the Client.

ANNEX 1 – SLA

https://drive.google.com/a/dexma.com/file/d/12jm4qff782z6xcWAcX4Rcl9swBqkFvAA/view?usp=sharing