These General Terms and Conditions (“Terms”) and any annexes hereto set out the terms and conditions of the Dexma Platform Subscription (“Agreement”) entered into as of the Effective Date by and between Dexma Sensors, S.L., (“Dexma”), a Spanish company with offices at Carrer Napols 189, bajos, Barcelona, Spain and tax number B64461270, and the entity identified as “Client” on your Order Form (hereinafter also “Client” or “you”). Company and Client henceforth will be called individually a “Party” and collectively the “Parties”.
The Agreement includes these Terms and the terms of your Order Form (which prevails over these Terms). The Agreement shall be interpreted solely in the context of such a Order Form and shall not bind either Party unless and until a Order Form is executed by the Parties, at which time the terms of these Terms shall be automatically incorporated by reference into, and made a part of, that Order Form.
“Client” means the entities who have a subscription to the Service.
“Client Data” means any data, information or material that Client has transmitted or uploaded to the Service during the use of the Service.
“Contents” means audio-visual information, documents, software, Apps, products and Services included or made available to the Client during the use of the Service.
“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.
“Fees” means the amount specified on the applicable Order Form for your Subscription or any subsequent renewals, for the specified number of users.
“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 granting a Subscription to the Client, 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 the DEXMA Platform (previously called DEXCell ENERGY MANAGER), including the DEXMA services agreed upon, 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.
“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.
“Users” means employees or freelancers of the Client who are authorized to access the Service for the Client.
License Grant and Conditions
- 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.
- The Client shall not access 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.
- 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.
- In addition, the Client shall not and will ensure that its 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 unauthorized access to the Service or related systems or networks.
Client obligations and responsibilities
- The Client is responsible for all activities 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.
- 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.
- User accounts cannot be shared or used by more than 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.
- 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.
Charges and payment of fees
- For the Services rendered under this Agreement, the Client agrees to pay the fees (the “Fees“) identified in the Order Form. All Fees are non-cancellable and non-refundable, except as otherwise set out in this Agreement, and are stated net of any applicable taxes or withholding taxes.
- Unless otherwise specified in the Order Form, Fees are due on the signature date of the applicable Order Form and due in the currency set forth therein. 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.
- The Fees do not include any taxes that may apply, including without limitation VAT or equivalent sales tax, such taxes being the responsibility of Client.
- The right to use the Service may be suspended or terminated 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.
- The Client alone is responsible of the accuracy, quality, integrity, reliability, suitability and intellectual property rights of and in 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.
- Client represents that Client Data, the processing of the Client Data and any other activities in connection with the Service do not violate, infringe or misappropriate any third party’s rights.
- Any Client Data may be deleted and/or discarded 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.
- 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.
Term and Termination
- The Term of this Agreement is set out in the Order Form, unless either Party early terminates it, and is automatically renewed for subsequent periods of the same length as the initial Term.
- 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.
- This Agreement may be terminated if one party has materially breached this Agreement for any reason (including without limitation the non-payment of the pending fees) and said breach has not been corrected, if curable, 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.
- 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.
- Upon any termination of this Agreement, DEXMA will interrupt the provision of the Service, and the 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.
- Clauses 6 to 12 survive termination of this Agreement.
Privacy / Data Protection
- In accordance with the General Data Protection Regulation 679/2016, and the Spanish Organic Law on Data Protection 3/2018, DEXMA will process the personal data of the commercial and technical contact persons and Users of the Client (name, surname, position, email address and telephone) and Service authentication and provision data (username and log-on, IP address, Platform activity) collectively “Client Personal Data” as a Data Controller, in order to perform this Agreement for and providing the Service. This Client Personal Data will not be shared with any third party except the DEXMA’s service providers (as data processors), with whom it has contracts for data processing according to the applicable regulations, and with potential investor’s or buyer’s advisors during a due diligence analysis in the context of a M&A operation involving DEXMA. 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.
- 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 email@example.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.
- If, during the performance of the Agreement, DEXMA has access to other personal data under the responsibility and on behalf of the Client, a Data Processing Addendum will be signed.
- 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.
- 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. This clause 8.2 shall not apply where any modification is made to the Service or underlying software by Client or any third party.
- 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;
- Other than expressly stated in this clause, to the maximum extent permitted by applicable law, 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, are disclaimed to the maximum extent permitted by the applicable law.
- 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.
- To the maximum extent permitted by applicable law, in no event 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.
- 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.
- 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.
- Each Party agrees to maintain the confidentiality of any proprietary information (including, 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, and Client Data) (“Confidential Information”) received from the other Party during the term of this Agreement and for one year after its termination.
- 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.
Intellectual and Industrial Property
- 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 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.
- 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.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. This Agreement has for only parties Dexma Sensors, S.L. and the Client.
- 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.
- 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.
- Severability. 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.
- 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, (b) to a purchaser of all or substantially all of its assets or of the Dexma Platform branch of activity, or (c) to a member of its corporate group.
- Force Majeure. Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.
- Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, by overnight courier Services, confirmed email, or mailed by first class, registered or certified mail, postage prepaid, at the address listed on the Order Form; or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt and in the event of email, on any confirmation of receipt.
- Modifications. 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.
- 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.