Scope of application and definitions
- Unless otherwise agreed in writing, these general terms and conditions of Kronometrix Analytics (“Supplier”) shall apply to the delivery of the agreed equipment (“Equipment”), the Kronometrix IoT Gateway (K1), the Kronometrix Distributed Data Fabric (K500) or the Kronometrix Databus (K2) all known as (“Software”) and the agreed maintenance and support services (“Services”) provided by the Supplier or its affiliated company to their business customers (“Customer”). Equipment and Software are hereinafter jointly referred to as the “Products”.
- The Supplier is the creator, owner and the only provider of the Software, which is a software application developed and configured to be used a s a single software stack, including the operating system, the Kronometrix application, and all required configurations, operating as a single entity.
- The Supplier is offering the Software as a ready made binary image (“Kronometrix Image”) for initial installation, on a virtual platform, private or public or on a bare metal, physical computer system, server or workstation or single board computers.
Delivery and acceptance
- The Supplier agrees to deliver the Products and perform the Services in accordance with the terms and conditions of this agreement.
- The Supplier endeavours to comply with the agreed-upon delivery dates, or if no delivery dates have been agreed upon, the Supplier shall deliver the Products and provide the Services within a reasonable time from the date of execution of this agreement or a separate order, if applicable. If the delivery is based on the Customer’s data or material, any specified delivery timetable shall be calculated from the date on which the Supplier notifies to the Customer that it has received such data and material. All delivery dates specified in this agreement are estimates only, and the Customer shall not be entitled to any compensation or damages due to a delay of the delivery.
- The Customer shall contribute to the delivery using its best efforts. The Customer agrees to perform its duties in conformance with the terms and conditions of the agreement, with due care and the professional skill required for the task. The Customer shall provide the Supplier with all information the Supplier deems necessary in order to perform the tasks agreed herein. The Customer shall be responsible for information and instructions given to the Supplier, as well as for the suitability of the result of the delivery for Customer’s internal purposes. The Customer shall further ensure that the use of the Customer’s data or material, software or other tools provided by the Customer to the Supplier under this agreement (if any) do not infringe any intellectual property or other rights of third parties.
- Unless agreed upon a separate acceptance testing procedure, the Customer shall perform an acceptance inspection of each Product not later than seven (7) days from the Product’s delivery. If separately agreed in writing on installation Services to be performed by the Supplier, the above-mentioned acceptance inspection period shall commence on the date when the Supplier notifies to the Customer that it has performed the installation in accordance with this agreement. The Customer shall immediately notify the Supplier in writing of any errors or defects detected during the acceptance inspection. Notwithstanding the Customer’s reclamation, the delivery shall be deemed accepted in the event the delivery does not contain errors or defects referred to in Sections 9.1 or 9.2. Notwithstanding the foregoing, the delivery shall also be deemed accepted if the Customer puts the Product, or any part thereof, in the production use, or fails to notify the Supplier within the above-mentioned acceptance period. At the request of the Supplier, the Customer shall provide the Supplier with a written acceptance certificate signed by a duly authorised representative of the Customer. In the event the Product is not accepted by the Customer as set forth herein, the Supplier may, at its sole discretion, either correct the error or defect, replace the Product in question, or cancel the erroneous or defective part of the delivery.
- The Software can run on-premises (“On-Premises”) or as a service over the network (“SaaS”). The Customer can install the Software on-premises, on its own internal network, or use it as a service (“Kronometrix SaaS”), hosted under kronometrix.io and operated by the Supplier.
- Unless otherwise agreed in writing, the Customer shall install the Products at its own expense. Installation terms (communications, electricity, cabling etc.) for the Products included in the delivery are specified in this agreement and in product-specific terms separately for each Equipment and/or Software.
- In the event the Supplier installs the Products, the Customer shall, at its costs and in a timely manner, prepare the operational environment to conform to the requirements specified in this agreement, or specified separately by the Supplier. Notwithstanding the foregoing, the Supplier shall be responsible for the Software’s operational environment in the case such Software is installed on an Equipment by the Supplier prior to the delivery to the Customer. The Supplier may inspect the operational environment prior to the installation date and may require that the Customer corrects and remedies all detected errors and defects therein at its own expense. If the Supplier installs the Products, the installation shall be performed during the Supplier’s normal business hours.
- The Customer shall arrange for the Supplier an access to the installation premises for the performance of the installation at a time to be agreed by the parties. The Customer shall, at its expense, arrange the working and storing space necessary to perform the installation. If additional personnel or special tools are necessary due to a reason attributable to the Customer’s installation premises, the Customer agrees to pay all related additional costs.
- Unless otherwise agreed in writing, the Customer shall not run on-premises Software (K1, K500, K2) as a service (SaaS) under any circumstances, using Kronometrix trademark, Kronometrix country domains or any registered names which belongs to the Supplier. If agreed by Supplier, the Customer can run the Software as its own private SaaS, using its own registered names and trademarks without any conflicting names for Supplier.
Data and material provided by the customer
- The Customer shall provide all data and the material agreed to be provided by the Customer (if any) in the agreed-upon form, or in another form specified by the Supplier in writing.
- The Customer shall be responsible for the acquisition and working order of all equipment, software and telecommunication connections not included in the delivery as specified herein. The Customer also agrees to ensure that such equipment, software and telecommunication connections meet the requirements set forth by the competent authorities and do not cause interference to the Supplier’s performance. If the Customer connects to the Supplier’s Products any equipment, software or communication connections that are defective or cause interference, or if the defect is attributable to the Customer’s equipment, software or connections, the Customer shall pay the Supplier or direct damages as well as costs related to the error-diagnosis, location or errors and related work.
- Unless otherwise agreed in writing on products-specific license terms, the license terms specified in sections 5.2 – 5.7 shall apply. If the delivery contains a third party’s standard software or other material or open source components, such software or material may be subject to the different applicable license terms and conditions as indicated in the agreement or otherwise in connection with the delivery.
- Copyright and other intellectual property rights as well as title in and to the Software, documentations and other materials delivered to the Customer or generated during the performance of Services, and all modifications, alterations, enhancements and changes thereof (jointly “Deliverables”), shall at all times belong to the Supplier and/or its suppliers, irrespective of whether or not such material has been created in co-operation between the parties. Title to all copies of the Deliverables shall also belong to the Supplier.
- The Supplier grants to the Customer a personal, non-exclusive and non-transferable license to use the Deliverables for Customer’s own internal operations for the purposes specified in this agreement, or otherwise by the Supplier in writing. The license is limited on the basis of data sources (“Data Source”) as specified in more detail in the agreement. For the purposes of this agreement the term Data Source means any system connected to a public or private network with a valid IPv4 or IPv6 address being a server, a data logger, a graphic workstation, an iPad or a sensor bound to a single Kronometrix data subscription. The Customer may not sell, pass or otherwise assign its license to a third party or otherwise utilise the Deliverables financially. The Customer shall have no right to use the Software for service bureau or facilities management purposes.
- The Customer shall have the right to make changes or other alterations to the Deliverables only after the prior written consent of the Supplier. The Customer may reverse engineer, disassemble or decompile Software or otherwise reduce the Software to a human-perceivable form only if and to the extent such activity is expressly permitted by the applicable mandatory rules of the Copyright Act (8.7.1961/404, as amended). The Customer may make one (1) backup/archival copy of the Software included in the Deliverables to be used if the original operating environment is not available. The Customer shall not have the right to make other copies, or allow other copies to be made, of the Software even for private use. The backup/archival copy shall contain all the same legends and copyright notices as the original.
- Unless otherwise expressly agreed in this agreement, this agreement shall have neither effect on either party’s intellectual property rights or any other rights existing prior to the execution of this agreement, nor alter either party’s rights to the documentation, software and/or parts thereof, furnished by one party to the other party for the purposes of this agreement.
- Upon expiration of the license granted hereunder, the Customer shall return, or, if not possible, destroy all Deliverables including without limitation all copies and documentation, cease to use the Deliverables and upon request provide the Supplier with a certificate on the fulfilment of its obligations hereunder.
- The Customer shall have no right to make changes to Equipment, Software, telecommunication solutions or other technical infrastructure that are an object of the license or the delivery hereunder, without a written consent of the Supplier. If the Customer makes such changes without the Supplier’s consent, the Supplier shall be entitled to charge additional fees for the work caused, or, if the alteration is substantial, to suspend the delivery.
Title; risk of loss and damage
- Title to the Equipment acquired by the Customer shall pass to the Customer, and the license to use the Software and other material contained in the delivery commences upon payment of the price of the delivery in full to the Supplier.
All risk for loss and damage to the Product shall pass to the Customer in accordance with the delivery clause Ex-Works Incoterms 2010. In the event the Product shall not be delivered to the Customer on the agreed-upon date of delivery due to a reason attributable to the Customer, the risk of loss and damage shall, however, pass to the Customer on the agreed date of delivery.
Prices and terms of payment
- The Supplier shall invoice for the Products and Services on the basis of Data Sources as further specified in the agreement not, however, less than once (1) per month. The terms of payment shall be fourteen (14) days net from the date of the invoice. Interest on delayed payments accrues in accordance with the Finnish Interest Act (20.8.1982/633, as amended). The Supplier may charge the Customer additional fees for Services performed outside the Supplier’s working hours or for work not belonging to the scope of this agreement. Such additional fees may include, without limitation, overtime compensation, equipment fees, daily allowance, telecommunications fees and other expenses.
- In the event the price of the Product or Service has not been specified in the agreement or otherwise, the Supplier’s price list effective at the time of order shall apply. The Supplier may change its prices upon thirty (30) days prior written notice to the Customer. The change of prices shall not apply to invoices falling due prior to the effective date of change. In the event that the Customer does not accept the change, the Customer shall be entitled to terminate this agreement on the effective date of the price change upon fourteen days (14) days prior written notice to the Supplier. In the event of termination, the Supplier shall be entitled to receive payment for any work performed prior to such termination.
- The Supplier shall be entitled to charge for travel time fifty percent (50%) of the agreed hourly charge for travels necessitated by the performance of its obligations hereunder, which exceed a return journey of over thirty (30) kilometres. In the event the return journey is less than thirty (30) kilometres, travel time shall not be chargeable. The Supplier shall invoice the Customer for travelling costs and daily allowances separately in accordance with its then-current invoicing policy.
- Unless otherwise agreed in writing, the prices specified in the agreement shall exclude value added tax and other taxes.
- If any payment by the Customer is delayed by more than thirty (30) days from the due date despite a written remainder, the Supplier shall be entitled to suspend its performance without any liability until the Customer has paid all amounts due to the Supplier.
Replacement of Products and alterations
The Supplier shall be entitled to replace the Product with another Product or its new improved model or version (“Replacement”). The Supplier shall use reasonable efforts that the Replacement shall meet all material requirements with respect to the capacity, performance and other features that are set forth in the agreement for the original Product.
- The warranty period for Equipment shall be twelve(12) months from the delivery date of the Equipment (“Equipment Warranty”). Under this Equipment Warranty the Supplier shall repair or replace the defective product or components. However, when repair or replacement is not practical, Supplier may, at its sole discretion, elect to refund the original purchase price of the defective equipment. Any replacement may consist of a new or re-manufactured functionally equivalent Equipment of equal value, and will be made solely at the discretion of the supplier. Repaired or replaced Equipment is warranted only for the remainder of the original Equipment warranty period or 90 days from the date of replacement, whichever is longer and is subject to the same exclusions and limitations as the original Equipment.
- The warranty period for Software is, in its unaltered form, warranted for a period of thirty (30) days from the acceptance date of the delivery (“Software Warranty”). Under this Software Warranty the Supplier shall correct all errors reported by the Customer to the Supplier in writing during the warranty period at no charge and without undue delay. Software shall be deemed defective if it substantially fails to conform to the specifications, descriptions or manuals when utilised in the agreed-upon operating environment. To fulfil its warranty obligations hereunder, the Supplier may either correct or replace the erroneous Software or its components or provide instructions on how the error can be circumvented, as specified below. Replaced Software is warranted only for the remainder of the original warranty period or 30 days from the date of replacement, whichever is longer and is subject to the same exclusions, limitations, and licensing agreement as the original Software.
- The Supplier will perform warranty corrections from its office. In the event of Equipment, upon request by the Supplier, the Customer shall deliver the Products to the Supplier’s service centre in Finland. The Customer shall be responsible for the delivery costs with respect to such Products to the Supplier and the Supplier shall be responsible for the return costs. The Customer shall have the risk of loss and damage during the warranty corrections/delivery. If separately agreed-upon between the parties in writing or the Supplier deems it necessary, the Supplier shall perform error diagnosis and/or warranty correction at the Customer’s site in Finland, in which case the Supplier is entitled to invoice the Customer for travelling expenses and travel time in accordance with the Supplier’s then-current price list.
- A correction may also take place by providing the Customer with a replacing Equipment, or in case of Software, a detour or written instructions on how to bypass the error, if this can take place without additional costs or substantial inconvenience to the Customer. The Customer shall be responsible for implementation and installation of error corrections as well as all related costs.
- The warranty does not cover normal wear and tear or the repairs of defects or faults, if Supplier has determined on it’s own judgment, attributable to: (a) external factors, e.g. accident, electricity or air-conditioning, fluctuation, or caused by thunder or fire, or damage caused by water; (b) misuse of the Products or negligence or failure to follow instructions for the use, maintenance and cleaning of the Product; (c) alterations or repairs made by a party other than the Supplier or the use of non-specification supplies; or (d) negligence to comply with the environmental instructions of the Products.
- If it is established that the defect, fault or error reported by the Customer is not covered by the warranty, the Supplier shall have the right to charge for the error diagnosis and the location of errors and defects in accordance with the Supplier’s then-current price list. The Supplier is also entitled to charge the Customer for such agreed-upon repairs of defects, faults or errors not covered by the warranty.
- All third-party Products shall be delivered on an ”as is” basis without a warranty of any kind. The sole obligation of the Supplier with respect to such Products shall be to assign all right related to the manufacturer’s, importer’s or sales representative’s warranty to the Customer.
- THE SUPPLIER’S LIABILITY FOR ERRORS AND DEFECTS IN THE PRODUCTS OR SERVICES AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, SHALL BE LIMITED TO THE PERFORMANCE OF WARRANTY OBLIGATIONS UNDER THIS SECTION 9. EXCEPT AS REQUIRED BY THE MANDATORY PROVISIONS OF LAW, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. THE SUPPLIER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND SATISFACTORY QUALITY.
Software Maintenance Services
- Unless otherwise indicated in the Supplier’s proposal or agreed in writing, the Supplier’s Software maintenance services shall be subject to a separate order, and the fees shall be in accordance with the Supplier’s then-current price list.
- The Software maintenance services provided by the Supplier include the following services: a) The right to obtain new or revised standard Software versions released by the Supplier. Such new versions shall be considered as part of the Software and subject to the license terms hereunder. New versions do not include any new product platforms or any new software products and/or modules of Software that are marketed under different product names by the Supplier; b) Problem solving and Help Desk support. This means that the Customer may appoint named persons to contact the Supplier to notify the Supplier via telephone or e- mail of suspected defects and malfunctions in the Software and request the Supplier information, which does not require on-site work. Help Desk Services are provided during the Supplier’s normal, local office hours, 9AM to 5PM with the exception of public holidays.
- The Customer notifies the Supplier of a Software error through the Supplier’s Help Desk, by e-mail or phone followed by a written error specification, containing details of the error that are necessary for the Supplier to diagnose the error. The Supplier must confirm receipt of the notification by e-mail in order for it to be valid. The primary way to report errors and response to such reports shall be by email (or Web-site service). The parties shall together clarify the extent and class of the error when necessary. After the error classification, the Supplier shall use commercially reasonable efforts to correct the errors or to provide a suitable workaround solution within a reasonable time. The Supplier shall keep the Customer up to date of the progress on any ongoing error correction. However, the Supplier does not warrant that it is able to correct the error in any particular case.
- The Supplier may discontinue its maintenance services for earlier versions of the Software after a period of ninety (90) days following the release of a new version to markets. The Supplier shall have the right to cease providing any maintenance services after two (2) years of the initial release of the version in question.
- Software maintenance services do not include installation of new versions or other professional services or maintenance of any customer-specific interfaces and/or customer-specific code. For such services, the Customer is charged on a time and materials basis in accordance with the Supplier’s then current price list.
- The Supplier’s obligations to provide maintenance services shall not apply to: a) Errors caused by the Customer’s use of the Software together with equipment or appliances not approved by the Supplier in writing; b) Errors caused by the Customer’s changes or alterations to the Software, unless executed in accordance with the Supplier’s instructions; c) Errors caused by the Customer’s use of the Software in a manner contrary to the user documentation; and d) errors caused by the Customer’s other systems connected to the Software or changes in such other systems.
- Each party shall keep in confidence all material and information received from the other party and marked as confidential or which should be understood to be confidential. A party shall have the right to use such material and information only for the purposes set forth in this agreement. The confidentiality obligation shall, however, not be applied to material and information that: (a) is generally available or otherwise public; (b) the receiving party or its affiliated company has received from a third party without any obligation of confidentiality; (c) was in the possession of the receiving party or its affiliated company prior to receipt of the same from the other party without any obligation of confidentiality related thereto; (d) a party or its affiliated company has developed independently without using material or information received from the other party; or (e) a party or its affiliated company must disclose pursuant to a law, decree, or other order issued by the competent authorities or judicial order.
- Each party shall cease using confidential material and information received from the other party promptly upon termination of the agreement or when that party no longer needs the material or information in question for the purpose stated in the agreement and, unless the parties separately agree on the destruction of such material, return the material in question (including all copies thereof). Each party shall, however, be entitled to retain the copies required by law or regulations.
- The rights and obligations pursuant to this clause 11 shall remain in force after the expiration, termination or cancellation of the agreement.
- Except for payment obligations, neither party shall be liable to the other for loss, damage, or delay in work caused by an impediment beyond its control which that party could not have taken into account at the time of the conclusion of the agreement, and whose consequence it could not have reasonably avoided or overcome including, but not limited to war, riot, the act or order of any competent civil or military authority, strikes, unauthorised work stoppage or by fire or flood (“Force Majeure Event”). Strike, lock-out, boycott and other industrial action shall constitute a Force Majeure Event also when the party concerned is the target or a party to such an action. A Force Majeure Event suffered by a subcontractor of a party shall also discharge such a party from liability if subcontracting from other source cannot be made without unreasonable costs or a significant delay.
- Either party shall inform the other party of a Force Majeure Event in writing without delay. The party shall correspondingly inform the other party of the cancellation of the Force Majeure Event.
Infringements of intellectual property rights
- The Supplier shall at its own expense defend and indemnify the Customer against claims and actions that the Product infringes any of the intellectual property rights of a third party in Finland, provided that the Customer notifies the Supplier promptly in writing of such claims, and permits the Supplier to defend or settle the claims, and gives the Supplier all necessary information and assistance available and all necessary authorisations. If in the justified opinion of the Supplier, the Product infringes the intellectual property rights of a third party, the Supplier shall at its own expense either: (a) obtain the right to use of the Product for the Customer, or (b) replace the Product, or (c) modify the Product in order to eliminate the infringement. If none of the above-mentioned alternatives is available to the Supplier on reasonable terms, the Customer shall, at the request of the Supplier, stop using the Product, return it, and the Supplier shall credit the price paid by the Customer for the Product less the proportion of the price corresponding to the actual time of use.
- The Supplier shall, however, not be liable to Customer if the claim: (a) is asserted by the Customer or its affiliated company; (b) results from an alteration of the Product or from compliance with the Customer’s instructions or information; (c) results solely from the use of the Product in combination with any Product or software not supplied by the Supplier; or (d) could have been avoided by the use of a released and newest version of the Product.
- THIS CLAUSE 13 STATES THE ENTIRE LIABILITY OF THE SUPPLIER AND THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR AN INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHT.
Term; termination of the agreement
- Unless otherwise agreed in writing, this agreement shall be valid until further notice. The agreement may be terminated upon three (3) months prior written notice.
- If the fulfilment of the agreement is delayed for more than four (4) months due to a Force Majeure Event, either party shall have the right to terminate this agreement by a written notice to the other party without either party having the right to claim damages for such termination.
- A party shall have the right to terminate the agreement upon written notice to the other party if such other party is declared bankrupt, is put into liquidation, or it otherwise ceases with its payments, or if the other party commits a substantial breach of the terms and conditions of this agreement and does not remedy such breach within thirty (30) days from receipt of the written notice of the breach.
Damages and limitation of liability
- The Supplier shall be liable under this agreement for direct damages caused by the Supplier’s negligence and proven by the Customer not, however, for damage exceeding fifteen percent (15%) of the price of the Product, Service or part thereof, which is the subject-matter or directly related to the cause of action asserted.
- IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR EXPENSES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS AND LOST SAVINGS, OR FOR THE LOSS OF, DAMAGE TO, OR ALTERATION OF DATA OR DATA FILES OF THE OTHER PARTY DUE TO ANY CAUSE AND THE RESULTING DAMAGES AND EXPENSES INCURRED, SUCH AS EXPENSES BASED ON THE RE-CREATION OF DATA FILES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE LIMITATION OF LIABILITY SHALL NOT APPLY TO DAMAGES CAUSED BY WILFUL CONDUCT, GROSS NEGLIGENCE. THE LIMITATION OF LIABILITY SHALL ALSO NOT APPLY TO DAMAGES CAUSED BY THE TRANSFER, COPYING, OR USE OF SOFTWARE CONTRARY TO LAW OR THE TERMS OF THE AGREEMENT, OR DAMAGES CAUSED BY A BREACH OF EXPORT RESTRICTIONS RELATING TO THE PRODUCTS OR TECHNICAL INFORMATION.
- This agreement shall be governed by the laws of Finland excluding its choice of law provisions. The Sale of Goods Act (27.3.1987/355) and United Nations Convention on Contracts for the International Sale of Goods, done at Vienna April 11, 1980, is excluded. All disputes arising out of or in connection with this agreement and/or the formation thereof shall be resolved by arbitration under the rules of arbitration of the Finland chamber of commerce. The arbitration tribunal shall consist of one (1) arbitrator. The arbitration proceedings shall take place in Helsinki, Finland. The arbitration shall be conducted and the arbitration award shall be given in Finnish or, if the Customer is not a Finnish company, in English.
- Neither party shall have the right to assign this agreement, or any rights or obligations hereunder, without the prior written consent of the other party. The Supplier may, however, assign this agreement to its affiliated company or to a third party to whom business subject to this agreement is transferred. The Supplier may further assign its receivables under this agreement to a third party.
- The Customer acknowledges and agrees that the Supplier continuously develops Services and Products and therefore the selection and content of Services and Products may change. The Supplier shall also have the right to stop provision and/or manufacturing of Services and Products. In such case the Supplier may terminate this agreement with respect to such terminated Services, Products or their separate parts in with a thirty (30) days’ notice.
- Any other changes or additions to this agreement shall be agreed in writing in order to be valid.
- The agreement shall be valid when duly authorised representatives of both parties have signed the agreement or when the Customer accepts the Supplier’s offer in writing.
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