DISRUPTIVE TECHNOLOGIES RESEARCH AS GENERAL TERMS AND CONDITIONS
Unless otherwise specifically expressed or agreed to in writing, these General Terms and Conditions (“Conditions”) of Disruptive Technologies Research AS, Strandveien 17, 1366 Lysaker, Norway (hereafter “DTR”) shall apply to any delivery Services from DTR to the Customer. The objects, services and licenses to be supplied under these Conditions are hereinafter referred to as the “Services”.
These Conditions shall be applicable as soon as the Customer starts using the services.
DTR may make changes or modifications to these Conditions from time to time (“Modification”). Customer will be duly notified of a Modification by DTR.
Customer guarantees that its use of the Services, including without limitation their incorporation into Customer’s applications and/or products, and the use made thereof by the End Users shall not be in breach of this Contract (including without limitation any license terms referred to in the Contract), of any applicable, nor of any right (including without limitation intellectual property rights, property rights, personal rights and privacy rights) of of DTR, its Affiliates or any third party (“Rights”). “End User” means a person or entity to which the Customer, directly or indirectly, has sold, rented out or otherwise made available the Products and/or Services. “Affiliate” means any legal entity which controls, is controlled by, or is under common control with DTR, whereas an entity is deemed to “control” another if it owns directly or indirectly at least fifty per cent of the shares or interests entitled to vote.
If and to the extent the Customer’s or the End Users’ use of the Services infringes any Rights, the Customer shall indemnify and hold DTR and its Affiliates harmless from and against any and all related claims made by any third parties and all other damages, losses, costs or expenses incurred by DTR or its Affiliates, except where such infringement is exclusively due to Customer’s, respectively the End Users’ following the explicit instructions and guidelines of DTR for use of the Services.
Nothing in this Contract shall be construed as creating a contractual relationship between DTR and the End Users. DTR’s sole responsibility in respect of the End Users is to make the Services available to the Customer for selling or renting to the End Users, and any claim, complaint or request from the End Users in relation to the Services shall under no circumstances be directed from the End Users to DTR. Customer shall indemnify and hold harmless DTR and its Affiliates against any and all claims presented directly from End Users to DTR, regardless of the legal grounds thereof including without limitation claims based on statutory liability of DTR towards End Users such as claims relating to product liability.
The Customer guarantees not to offer or otherwise make available the Services to any third parties which are (i) located outside of the EU/EEC/UK, US and Canda or (ii) subject to sanctions, export control or regulatory prohibitions, or (iii) otherwise specified in writing by DTR.
The Customer shall have all rights to any data and information accumulated through the Customer’s and its End User's use of the Services ("Data"). However, the Customer grants to DTR an irrevocable, perpetual and worldwide right to use the Data (provided such Data is sufficiently anonymized and/or aggregated by DTR so that the Customer or its End Users are in no circumstances identifiable) in accordance with the terms set out herein, and always subject to obligations of confidentiality and protection of Customer’s valuable trade secrets. Such anonymized and/or aggregated Data may be shared by DTR with third parties, and may be exploited for the purpose of further development of the Products and Services and for statistical and commercial purposes.
The Customer furthermore acknowledges and approves that DTR personnel may be given automatic access to the Customer’s Service account and to Data available therein in order to carry out necessary Customer support.
As between DTR and Customer, and subject to Clause 3.3 below, DTR and its Affiliates, licensors, successors and assigns (where applicable), retain sole and exclusive ownership of all associated intellectual property rights, including without limitation all patent, trademark, copyright, and other proprietary rights in and to the Products and Connection Services, and their manufacturing and design (the “DTR Intellectual Property”). DTR hereby grants Customer a limited, nonexclusive license to use the DTR Intellectual Property to the extent required for the use of the Products and Services as permitted under this Contract. Any other use of the DTR Intellectual Property is prohibited.
The Customer acknowledges that DTR Intellectual Property contains DTR’s valuable trade secrets and is protected by applicable laws. To the extent any intellectual property rights in relation to the Products or Services for whatever reason should vest in Customer, Customer hereby assigns, transfers, and conveys to DTR, all of the Customer’s right, title, and interest in and to such intellectual property rights. The Customer further agrees to execute and deliver any applications, assignments, and other documents, and take such other action under applicable law, as DTR may reasonably request in order to fully vest DTR’s rights in such intellectual property rights.
In the event the Parties agree on collaborating with the specific goal of developing new intellectual property, the terms for such collaboration and intellectual property ownership are subject to separate agreement.
If and to the extent Customer wants to certify any of the Products for a specific purpose, or generally according to industry or technical standards, its production process or the like, DTR shall be informed and shall have the right to consent to Customer initiating or completing such process, consent not to be unreasonably or untimely withheld. DTR may put as a condition for giving its consent that it is given access to and right/benefit of use for any purpose whatsoever (including re-sale) of all documentation, procedures and certifications obtained at no charge.
The Products and Services may contain elements (such as software) developed by third parties and published under Open Source license terms (the “Open Source Elements”). DTR provides Customer with a list of such Open Source Elements and the applicable license terms upon request. DTR is not the owner of the intellectual property rights regarding the Open Source Elements, and the use thereof by the Customer shall be governed by the applicable Open Source license terms. The Customer shall at all times comply with such Open Source license terms.
DTR will indemnify and hold Customer harmless against any and all liability, damages, losses, costs, or expenses ("Liability") resulting from any third-party claims made or suits brought against Customer to the extent such Liability arises from DTR knowingly having infringed the patent, copyright, trademark, trade secret, or other proprietary right of any third party.
If a Product or Service or part thereof is, or, in the opinion of DTR, could become the subject of a lawsuit regarding infringement of third party rights, DTR may choose to
The provisions of this section shall apply for the use of DTR’s Cloud Services . “Cloud Services” do not cover any underlying infrastructure, network or other non-cloud related services required to access and use the Services, such as mobile communication services or radio link between the wireless nodes and cloud connector and the global internet connection.
DTR shall use commercially reasonable efforts, unless otherwise agreed in writing, to ensure a minimum average uptime percentage for Cloud Services of 99.5% (“Uptime Guarantee”).
The Uptime Guarantee does not apply under any of the current circumstances:
DTR grants the Customer a limited, non-exclusive, non-sublicensable, non-transferable license under DTR’s intellectual property rights to use the DTR application programming interface (“DTR API”) for the purpose of developing and implementing customer-specific software solutions, products and applications integrating with DTR's Products and Services.
a) Rate limits: Rate-limiting may be applied to traffic to avoid service disruption for other API users. Rate-limits are observable through the API, and the Customer should develop their own software with rate limit handling in mind. The Customer must not attempt to exceed or circumvent limitations on access, calls and use of the DTR API, or otherwise use the DTR API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of this Contract or the API Documentation.
b) Quota: DTR may, in its sole discretion, set a quota on the Customer’s DTR API usage based on, among other things, the total number of Things (ie. Sensors and Cloud Connectors) of the accounts under management by the API Access. Usage beyond these quotas may be charged by DTR to the billing account associated with the API Access in accordance with applicable price schedules. c) Deprecation: The DTR API is constantly evolving and will have irregular changes, including backwards incompatible ones. API changes that break backwards compatibility will be introduced as a new API version. New API versions will go through a beta period of stabilisation and testing before being marked as final. During the beta window, the version number will end in “.beta” to indicate that changes might still be applied to the API, and that it should not be used in a production setting.
DTR will give notice to the Customer in due course before removing deprecated API versions. DTR offers no guarantees, but will make commercially reasonable efforts to make APIs backwards compatible within major version releases. The replacement version will be available and production ready at time of deprecation at the latest.
DTR undertakes to implement security procedures to protect the Cloud Services from security attacks. Notwithstanding, DTR does not warrant that the security procedures are error-free or unbreachable, nor that transmissions of Customer’s or its End User's data is always secure, nor that unauthorized third parties will never be able to defeat DTR’s or DTR’s third party provider's security.
The Customer is responsible for assessing and implementing adequate measures, including but not limited to backup procedures, to ensure sufficient protection of own or End User data and to be prepared to conduct their business without access to the Cloud Services. Furthermore, the Customer is solely responsible for maintaining the security of the Customer’s and its End User's Cloud Service account, such as safekeeping of passwords and usernames.
The Customer must ensure that no viruses or other computer programming that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system or data, is transmitted to the Cloud Services. The Customer shall regularly monitor its adherence to this obligation and shall immediately notify DTR in writing if there is evidence or a significant risk that this obligation can no longer be met, in which case the Customer must either cease processing or immediately take other reasonable and appropriate steps to remediate such failure to provide adequate level of protection.
The provisions of this Contract are severable and if any of the provisions hereof are held to be invalid, illegal, or unenforceable, in whole or in part, the remaining provisions of this Contract shall remain binding and enforceable by and between the Parties. No waiver of any portion of this Contract shall be effective unless in writing signed by the waiving Party.
The parties are independent contractors under this Contract, and nothing herein shall be construed to create a partnership, joint venture, employer/employee, or agency relationship between the parties. Neither party shall have any authority to enter into agreements of any kind on behalf of the other party and shall not have the power or authority to bind or obligate the other party in any manner to any third party. Each party agrees to not represent itself as a partner, joint venture, agent, employer, employee, or general representative of the other party or to make any representations on the other party's behalf.
To the extent the Customer makes available to DTR any information that directly or indirectly identifies a natural person (“Personal Data”), the Customer guarantees to comply with all privacy, data security, and data protection laws, directives, regulations and rules in any applicable jurisdiction. The Parties agree that DTR shall normally not be required to process any Personal Data (for example of End Users) on behalf of the Customer in the course of the provision of the Services. In the event the Customer intends to use DTR to process Personal Data on Customer’s behalf in connection with the Services, the Customer must inform DTR thereof in advance in writing, and the Parties shall then enter into a separate Data Processing Agreement.
This Contract and all questions concerning the validity, operation, interpretation, and construction of the Contract will be governed by and determined in accordance with the substantive laws of Norway without regard to its conflicts of law provisions. Any controversy or claim arising out of, or relating to, any provisions of this Contract, or breach thereof, shall be referred for resolution to Customer's Chief Executive Officer, or his or her designee, and to DTR Chief Executive Officer, or his or her designee. If the Parties' respective officers, or their designees cannot reach a resolution of the dispute within thirty (30) days, they shall be finally settled by the ordinary courts in Norway with Bærum district court as agreed exclusive venue.
Revised August 14. 2020. For help and questions, visit support.d21s.com