1 End User License Agreement (“EULA”)– Flex Mat Sensors and Services
Latest update: October 2019
This EULA is a legal agreement between you (the “End User”) and either one of this entity:
· If you are located in the European Union:
Major Europe S.A.
Rue des Gaillettes 9
· If you are located elsewhere in the world:
Major Wire Industries Limited
225 North Montcalm Blvd.
Canada, J5R 3L6
(“Major” or “us”)
Please read this EULA carefully before accessing or using the Services. This document contains important information on your obligations while using the Services.
If you wish to access and use our Services, you must accept and agree to be bound by and comply with this EULA. If you do not agree with this EULA, you must cease to use the Services immediately. Continued use of our Services indicates your continued acceptance of this EULA.
If you have any questions, complaints or claims with respect to this EULA, you can contact us at [insert email address and contact details].
1. Minimum Age
Our Services are not intended for anyone under the age of 18 years old. By using our Services, you represent that you are over 18 years old.
2. Account Creation
In order to use our Services, you will be required to create an account with us. You agree that you are responsible for the confidentiality of your credentials, and for any activity resulting from the use of your accounts. You agree to make reasonable efforts to prevent unauthorized access to or use of the Services.
You may not share your account or your credentials with anyone and you cannot allow any third parties to use your account or assist any third party to assess or use the Services. You agree to take reasonable confidentiality and security measures when using and securing your devices.
You agree to notify us immediately if you become aware of any unauthorized use of your credentials or your account.
3. Housekeeping Rules
You agree to use our Services for lawful purposes only. You warrant and represent that you will not use the Services in any manner:
(a) that will disrupt third parties’ use or enjoyment of the Service, including using the Services in a manner which results in automated, constant and repeated excessive requests for data other than as required for the normal use of the Services (e.g. denial-of-services (DoS) attacks) or any other use which may overload servers;
(b) results in (i) the sharing of identifiers and passwords among End Users or third parties and/or (ii) the distribution, disclosure or use of any of the Services by unauthorized third parties (i.e. other than End Users), including through any timesharing service, service bureau, network or by any other means;
(c) that involves using any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithms, or methodologies to access, acquire copy or monitor the Services or any portion of the Services;
(d) that involves decompiling, disassembling, or otherwise reverse engineering or attempting to reconstruct or discover any source code, ideas, algorithms or trade secrets of any of the Services underlying technology by any means whatsoever;
(e) that involves penetrating our security, including, without limitation:
a. by posting or transmitting any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features;
b. by interfering with the proper working of the Services;
c. by attempting to hack any security requirements or processes in the use of the Services;
d. by attempting to disrupt in any manner the operation of the Services, its servers or networks;
e. by disobeying any requirements, procedures, policies or regulations of our networks connected to the Services;
f. by manipulating identifiers in order to disguise the origin of any content transmitted on or to the Services or the source of any content;
g. by modifying or altering the Services in any unauthorized manner.
(f) Authorize, permit, enable, induce or encourage any third party to do any of the above.
(together, the “Abuses”).
We reserve our right to modify, suspend, or discontinue the Services at any time with or without notice to you if you commit or attempt to commit an Abuse, and we will not be liable to you or to any third party if we exercise these rights.
4. For Informational Purposes Only
The data displayed through our Services or External Services, including, but not limited to, any outputs from the Services, is for general informational purposes only and is not guaranteed by us.
5. External Services
Our Services may enable access to third party services and websites (collectively and individually, “External Services”). You agree to use the External Services at your sole risk. We are not responsible for examining or evaluating the content or accuracy of any External Services and shall not be liable for any such External Services.
Subject to the terms and conditions of this EULA and the Terms of Services – Flax-Mat Sensors and Services, we hereby grant you a revocable, non-exclusive, non-transferable, limited license to download, install, use and access our Services. This license applies to the devices that you own or control, and as permitted by your mobile platform’s terms, including, without limitation, Apple’s Usage Rules. The Vibration Apps are licensed to you, not sold to you.
7. Mobile Application
The terms of this EULA govern any content, materials or services accessible from or purchased from the Vibration Apps, as well as any upgrades provided by us to these applications, unless such upgrade is accompanied by a custom EULA.
We are solely responsible for the warranties and representations set forth in this EULA. In the event of a failure of the mobile version of the Vibration App to conform with any applicable warranty, you may notify your platform operator and they may refund the purchase price for the Vibration App (if any), and to the maximum extent permitted by applicable law, your platform operator will have no other warranty obligation whatsoever with respect to the Vibration App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty with be our responsibility.
8. Your Data
9. Warranties; Disclaimers; Limitation of Liability
We make no representations or warranties of any kind, whether express or implied, to End Users relating to the Services, which are provided to End Users on an ‘as is’ and ‘as available’ basis, with all faults and without warranty of any kind, and we hereby disclaims all warranties and conditions with respect to the Services, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and of non-infringement of third-party rights. No oral or written information or advice given by us or our authorized representative shall create a warranty.
In no event will you or us have any liability to the other for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages.
Our maximum aggregate liability to End Users for any breach of this EULA is of 10$CAD.
To the maximum extent permitted by law, you agree to defend, indemnify, and hold us harmless, including our affiliates, and respective directors, officers, employees and agents from and against any and all third party claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising our or accruing from your use of the Services in violation of this EULA.
11. Changes to the EULA
We may change this EULA at any time and at our sole discretion.
12. Third Party Beneficiaries
You acknowledge and agree that your platform operators and their subsidiaries as well as the Customer are third party beneficiaries of this EULA, and that, upon your acceptance of this EULA, these parties will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third party beneficiary thereof.
We can terminate or suspend your access or use of the Services at any time, for any reason, without any notice or liability to you, subject to our agreement with our customer which has provided you access to the Services.
This EULA is subject to the governing laws and jurisdictions set forth in the Flex-Mat Sensors and Services Terms of Services.
2 Terms of Services – Flex-Mat Sensor and Services
Latest update: October 2019
These Terms of Services are a legal agreement between you (the “Customer”; “you”) and either one of this entity:
· If you are located in the European Union:
Major Europe S.A.
Rue des Gaillettes 9
· If you are located elsewhere in the world:
Major Wire Industries Limited
225 North Montcalm Blvd.
Canada, J5R 3L6
(“Major”; “we”; “us”)
These Terms of Services apply to the services described under Appendix A (the “Services”) and as set forth in an order form between you and us (the “Order Form”). The Order Form (including any Change Orders, as defined below) shall have precedence over the Terms of Services.
· “Agreement” means these Terms of Services, Order Forms, Change Orders and, if applicable, the Data Processing Agreement (as defined below).
· “End User(s)” means each user who is provided with access to the Services through an authorized license by a Customer (as described under Appendix A).
· “De-identified Data” means data from which all personally identifiable data has been removed to protect natural individual identities and privacy, in accordance with generally accepted practices for de-identification.
· “Intellectual Property” means (a) any and all proprietary rights provided under patent law, copyright law (registered and unregistered copyrights and unpublished work of authorship), trade mark law, design patent or industrial design law, semi-conductor chip law, or any other statutory provision or common law principle applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions, or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventors or know-how, and any and all applications, registrations, licenses, sub-licenses, continuation, reissues, extensions, franchises, agreements or any other evidence of a right in any of the foregoing.
· “Personal Data” means any information that would meet the definition of “personal information” or “personal data” (or similar nomenclature) under applicable laws and that is (a) submitted through the Services by Customer or its End Users or (b) collected or generated by the Services about End Users.
· “Pre-Existing Intellectual Property” shall include any and all Intellectual Property of a party which came into existence or use prior to the Term or which were acquired or generated outside the scope of this Agreement, as well as any modification, enhancement or improvement to any of the foregoing.
· “Territory” means the country in which you are headquartered, or as specified in the Order Form.
· “Reseller” means an entity which is authorized to resell the Services and/or the Flex-Mat Sensor Kit to a Customer.
· “Security Breach” means any act or omission that materially compromises the security, confidentiality or integrity of Personal Data.
· “Usage Data” means data captured and generated by the Services about performance and analytics, such as page views, performance statistics, errors occurrences, and electronic attributes of devices, such as browser name and version, operating system and country. Usage Data is generally used to improve our Services, monitor performance and understand popular features.
2. Term; Subscription Term
The Flex-Mat Sensor Kit is sold with a 12 months subscription to the Services. The subscription begins upon installing and accessing the Vibration Apps (the “Activation Date”) and ends 12 months after the Activation Date (the “Initial Term”). The Initial Term shall renew automatically for subsequent terms of 12 months unless indicated otherwise by either party at least 30 days before the end of the Initial Term (“Renewal Term[VH1] ”).
Sections 10, 11, 15, 16, 17, 21, 24 and 25 shall survive the Term.
3. Flex-Mat Sensors; Equipment
The Flex-Mat Sensors must be used in accordance with the Instruction Manual provided in the Flex-Mat Sensor Kit. Some features of the Services can only be used with an Internet connection (as described under Appendix A). The Instruction Manual contains instructions to identify when the Flex-Mat Sensor has reached its life expectancy. If your Flex-Mat Sensor has reached its life expectancy, it is your responsibility to order a new Flex-Mat Sensor.
Except for the Flex-Mat Sensor and its USB charger, you are solely responsible for obtaining and maintaining all wired, wireless and other telecommunications, broadband, mobile and computer hardware, equipment, and servers needed to access and use the Services. You are also solely responsible for paying all charges related thereto (including any third-party fees or charges which may be levied for transmission or receipts of communications and data in connection with the Services).
4. Delivery; Flex-Mat Sensor Kit
The terms of delivery are FCA (Free Carrier) Incoterms 2010. We deliver the Flex-Mat Sensor Kit or any subsequent Flex-Mat Sensor to the Reseller’s location or your location, as indicated in the Order Form. Customer may select additional delivery terms as part of the Order Form (e.g. express shipping) at additional costs[VH2] . The Order Form shall contain an estimate date of delivery.
5. Service Level Agreement
The Service Level Agreement is set forth in Appendix B.
We warrant and represent that the Services will be substantially conform to the documented specifications described in the Instruction Manual and under Appendix A (the “Specifications”).
You must inspect the Flex-Mat Sensor Kit (or any other commercial products sent by us pursuant to an Order Form, together, the “Products”) immediately after taking custody of the Products. You shall notify us in writing of any non-compliance with the Specifications within ten (10) days of the delivery of the Products.
If a Flex-Mat Sensor is found to contain a material defect within a period of 3 months (the “Warranty Period”), our sole obligation is to repair or replace the defective Flex-Mat Sensor. Repaired or replaced Flex-Mat Sensors will remain under warranty for the remaining of the Warranty Period. The Products may be replaced with a used or reconditioned product, if we have reasonably determined that it is substantially equivalent or superior in all material respects to the Products being replaced. All Products replaced by us shall become our property upon replacement. Unless otherwise designated in writing by us, we are the only party authorized to perform warranty services on the Products.
If a Product is believed to be defected during the Warranty Period, or if we have otherwise agreed to accept the return of a Product, you shall (unless instructed otherwise in writing by us): (i) if the Product is alleged to be defective, provide us with a written description in sufficient detail to allow us to confirm such defect; (ii) obtain a Return Merchandise Authorization (“RMA”) number from us as a well as a pre-paid return slip; (iii) if requested by us, provide us with written proof of purchase of the Product (such as a copy of the dated Order Form for the Flex-Mat Sensor); (iv) after a pre-paid return slip is received, package the Product securely in the original or other suitable shipping package to ensure that it will not be damaged in transit, with the return slip prominently displayed; and (v) within fifteen (15) days of issuance of the RMA and return slip, ship the Product to the address indicated by us.
If the Product is being returned for maintenance, calibration, recalibration or repair, you must not include any manual or accessories in the shipping package. We may only replace the defective portion of the Product and we may not ship back any accessories.
We shall not be obligated or liable under this warranty for apparent defects or defects which examination discloses are due to tampering, misuse, neglect, improper storage or handling, normal wear and all cases where the Products were disassembled by other than authorized representatives. In addition, we shall not be obligated or liable under this warranty unless written notice is given within 30 days of the discovery of a noncompliance or defect.
7. Acceptance of Services and Products
The Products delivered by us will be accepted upon delivery in accordance with Section 4 of this Agreement. If the Products do not comply with the warranty set forth in Section 6 of this Agreement, you have the right to reject such Products during the Warranty Period. Products not rejected during the Warranty Period will be deemed accepted.
If you are not satisfied with the Services performed during a month, including pursuant to Section 6, you must notify us within 10 days of the end of this month. If you do not provide any such notice, you will be deemed to have forever waived any objection or dispute with respect to the Services performed during this month. The Services will be deemed accepted. Any attempt by you to withhold payment because of a disputed service or deliverable without first given us 10 business days to cure the alleged defect will constitute a material breach of this Agreement.
8. Fees; Payment Terms; Taxes
You agree to pay us (or the Reseller on our behalf) for the Services in accordance with the Order Form. You must pay for each Subscription Period in advance for the year. All payments are net 30. Any amounts due after this delay is subject to an annual interest rate of 15% (1.25% monthly).
You agree to pay all costs, including, but not limited to, reasonable attorney and accounting fees, court costs, and other expenses of collection resulting from non-payments or incomplete payments.
Unless otherwise stated in the Order Form, our fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). You are responsible for paying all Taxes associated with the Services, excluding taxes based on our net income or property. If we have an obligation to pay or collect Taxes for you, we will invoice you this amount and you agree to pay this amount, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
9. Licenses Grant; Intellectual Property
To the Services. Subject to the terms and conditions of this Agreement, including the payment of applicable fees, we grant you, for the Subscription Period, a non-exclusive, non-sublicensable, non-transferable, revocable right and license to access and use (and to allow your End Users to access and use) the Services. You shall only permit the Services to be used by End Users, and you shall remain liable for the acts and omissions of End Users. Neither you or End Users shall sell, transfer, sublicense, publish, disclose or otherwise make available the Services, or copies thereof, to any third party without our prior written consent, except as otherwise provided herein.
To Reports. The Services may include the provision of reports or similar outputs (each a “Report”). We hereby grant you a non-exclusive, non-sublicensable, transferable, limited license to reproduce, print, download and use all such Reports solely in accordance with the terms and provisions of this Agreement (the “Report License”). The Report License shall survive termination of this Agreement.
To Customer Data. You hereby grant us a non-exclusive, non-sublicensable, non-transferable, revocable (but only pursuant to this Agreement) right and license to access, use and disclose (and to allow End Users to access and use) Customer Data to perform the Services, or as otherwise required to exercise any rights and obligations set forth in the Agreement.
All rights not expressly granted hereunder are reserved by us. Each party shall be the sole and exclusive owner of its respective Pre-Existing Intellectual Property. The Services as well as any source code or algorithms pertaining to the Services’ underlying technology are the Intellectual Property Rights of Major. Notwithstanding anything to the contrary, we shall also be the sole owner of any suggestions, enhancement requests, recommendations or other feedbacks (“Feedbacks”) you or your End Users provide to us, and you hereby, assign to us without limitation of any kind, all rights, titles and interests in the Feedbacks.
10. Customer Data
Customer Data shall remain your property, provided that De-Identified Data and Usage Data shall remain our property. We shall have the right to create datasets comprised of De-Identified and Usage Data, aggregated or not, with third party data, and such datasets shall be our property.
11. Confidential Information
“Confidential Information” means any information whether oral or written, such as a trade secret or proprietary information concerning either party or its business operations. The information is confidential if indicated as such, or if it reasonable to believe it should be confidential in the circumstances. Confidential Information does not include:
· Information which is generally known or available publicly, including information which becomes generally known through no fault or breach of the party which receives the information;
· Information which was known by the receiving party prior to receive the information from the disclosing party;
· Information which is independently developed by the receiving party without the direct or indirect use of Confidential Information;
· Information which is lawfully obtained from a third party without violation of a confidentiality obligation of the disclosing party.
Either party can disclose Confidential Information if required to do so by a court or government agency having jurisdiction (provided that, unless prohibited by law from doing so, the party subject to disclosure shall, without undue delay, notify the other party so that the other party may takes steps to resist disclosure or obtain a protective order). Confidential Information may also be disclosed if required to perform the Services or as required for legitimate business needs, such as to auditors, as long as such third parties are contractually obliged to maintain the Confidential Information as confidential.
Each party agrees to exercise no less than reasonable care to prevent the unauthorized access, use or disclosure of the other party’s Confidential Information. The Confidential Information shall only be used for the purposes of delivering the Services.
The obligations set forth in this section shall survive the Subscription Term.
12. Personal Data; Information Security
Each party shall comply with all applicable laws in the collection, use and disclosure of Personal Data. You shall be responsible for ensuring that you have a lawful basis for the collection, use and disclosure of Personal Data for us to perform the Services. We shall collaborate with you to implement reasonable technical measures to assist you in complying with your obligations regarding Personal Data, including regarding responses to individual’s privacy rights requests, such as the right to access or correct Personal Data. We will transmit to you any such requests we receive regarding your End Users within five (5) days of reception. Each party agrees to collaborate with the other party in good faith, including to support the other party’s efforts to comply with applicable laws.
If you are a data controller pursuant to the General Data Protection Regulation, our Data Processing Agreement finds application and is deemed part of this Agreement. If the Data Processing Agreement is applicable, it shall have precedence over this section insofar as the personal data concerned are subject to the General Data Protection Regulation.
Taking into account factors such as the nature, scope, context and purposes of the use, collection and disclosure of Personal Data, as well as the risks inherent to such use, collection and disclosure, including to the rights and freedoms of individuals, we shall implement administrative and technical safeguards to ensure a level of security appropriate to the risks to the Personal Data.
In the event of a Security Breach, we will notify you without undue delay upon becoming aware of a Security Breach affecting Personal Data, providing you with sufficient information to allow you to meet your obligations to report or inform individuals or the authorities. If such information is not available at the time of such notice, we will follow up as the information becomes available. We may notify third parties directly without first obtaining your prior written consent if we are required to do so by applicable law.
13. Data Hosting;
Customer Data is hosted in our private data centers in Canada, except for clients in the European Union, whose Customer Data are stored in the European Union.
14. Acceptable Use
You agree to use the Services for lawful purposes only, and you represent and warrant that you will not use (or allow the use of) the Services in any manner which is in contravention of our End User License Agreement. The End User License Agreement applies directly to End Users. Customer is third party beneficiary to the End User License Agreement.
You understand that if you do not comply with this Section 14, we may restrict, suspend, block or terminate your access and use of the Services for all or any part of the Services at any time without prior notice, and we may take legal actions against offending individuals and organizations, in each case, in our sole discretion. The Service Level Agreement under Appendix B shall find no application in such cases.
You agree to defend us and hold us harmless (including our affiliates, subsidiaries, licensors, suppliers, service providers, contractors, and agents, as well as their respective employees, directors, officers, contractors and agents) against any and all claims, penalty, fine, cost, expenses (including reasonable attorney’s fees), actions, damages, losses or liabilities, (collectively, the “Losses”) directly or indirectly arising out of, related to, in connection with or resulting from:
· a breach of Sections 9 and 11.
Each party (the “Indemnifying Party”) shall indemnify, hold harmless and, if requested by the Indemnified Party (as hereinafter defined), defend, at the Indemnifying Party’s sole cost and expense, the other party and its affiliates, their employees, directors, officers and agents (the “Indemnified Party”) from and against any Losses directly or indirect arising out of, related to, in connection with or resulting from:
· an event of gross negligence or willful misconduct;
· a breach of applicable laws.
All claims for indemnification made under this Agreement resulting from, related to or arising out of a third-party claim against an Indemnified Party shall be made in accordance with the following procedure.
The Indemnified Party shall give prompt written notification to Indemnifying Party of the commencement of any action, suit or proceeding relating to a third-party claim for which indemnification may be sought or, if earlier, upon the assertion of any such claim by a third party. Such notification shall include a description in reasonable detail (to the extent known by the Indemnified Party) of the facts constituting the basis for such third-party claim, detailed calculations of any claim, support for the amounts used in the calculation, and the amount of the damages claimed.
Within 30 days after delivery of such notification, if requested to do so, the Indemnifying Party will assume control of the defense of such action, suit, proceeding or claim. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall be entitled to control such defense at the Indemnifying Party’s expense. The party not controlling such defense may participate therein at its own expense; provided, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than one law firms providing separate counsel to the Indemnified Parties. The party controlling such defense shall keep the other party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other party with respect thereto. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent will not be unreasonably withheld, conditioned or delayed.
The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim that does not include a complete release of the Indemnified Party from all liability with respect thereto or that imposes any liability or obligation on the Indemnified Party without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld, conditioned or delayed.
Except as provided in this Agreement, (a) we do not warrant that the Services will be uninterrupted or error free; (b) we do not make any warranty as to the results that may be obtained from the use of the Services; (c) the Services are provided on an “as is” basis; (d) to the maximum extent permitted by law, we make no other representations, conditions, warranties or guarantees, express or implied, regarding the accuracy, reliability or completeness of any outputs or information provided as a result of using the Services; and (e) we expressly disclaim any and all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Unless stated otherwise in this Agreement, you hereby waive your rights in any of the foregoing warranties, representations or conditions, whether express or implied.
The Flex Mat Sensor is not intended to serve as a screen machine diagnostic tool, and we make no representation whatsoever that the Flex Mat Sensor can or should be used to diagnostic possible problems with your equipment.
The quality and accuracy of the data generated by the Flex-Mat Sensor depends on the measurement process being executed in accordance with the Instruction Manual made available to you as part of the Flex-Mat Sensor kit delivered to you. We will not have any liability whatsoever resulting from your use of the Services in contravention of the Instruction Manual. You acknowledge and agree that any outputs produced by the Services are for informational purposes only. We do not have any liability whatsoever for business decisions resulting from such outputs. You must ensure the outputs are accurate and consistent.
We do not operate the networks of, or have any control over the operations of, the wireless or other communications service providers through which you may access the Services. Accordingly, (i) we disclaim all responsibility and liability for or relating to your use of any such providers to access the Services and (ii) we cannot guarantee the privacy or security of wireless data transmissions. You should consult your Internet service provider about their privacy and security practices.
No oral advices or written or electronically delivered information given by us, our affiliates, our officers, directors, employees, agents, providers, merchants, sponsors, licensors or the like shall create any warranty.
17. Limitation of Liability
To the maximum extent permitted by law, neither party will be liable to the other party or its affiliates, employees, subcontractors or agents for any loss of profits, or special, indirect, incidental, consequential or exemplary damages, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if a party is aware of the possibility of occurrence of such damages.
To the maximum extent permitted by law, our total liability to you for any damages arising out or in connection with this Agreement, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid or payable by Customer to us under an Order Form during the 12 months period preceding the event which gave rise to such claim.
18. Force Majeure
Neither party shall be liable for delays in or failure of performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God or public enemy, acts of government in either its sovereign or contractual capacity, flood, earthquake or other natural disaster, strike or other labor disputes, acts of war, acts of civil disobedience, denial-of-services and distributed-denial-of-services, ransomware and other cyber-attacks that are not caused or facilitated by negligence. In the event of a delay due to such causes, the date of delivery of the Flex-Mat Sensor Kit and/or any Product may be extended for a period equal to the time lost by reason of the delay.
19. Service Providers
You consent to the use of service providers to deliver part of the Services, to the extent that we shall remain liable for any acts or omissions of our services providers as if the acts or omissions were committed by us. You agree and acknowledge that service providers may use, collect or disclose Personal Data to perform the Services, including outside of the Territory.
20. Orders Forms; Change Orders
These Terms of Services are subject to changes at our sole discretion. When we change these Terms of Services, we will update the “Latest update” above. Changes to these Terms of Services will only affect your and our respective rights and obligations from and after the effective date of such changes.
Order Forms can only be amended by a change order executed by both parties (a ‘’Change Order’’).
21. Marks; Publicity
You may not use our name or any logo, trademark, service mark, business name, trade name, domain name or social media account name or handle owned or licensed by us or generally speaking, our brand features, whether registered or not, and including any good will associated therewith, (collectively, “Marks”) in any manner without our prior written consent.
Unless indicated otherwise in an Order Form, you hereby grant us a limited, revocable and worldwide license to your Marks solely to list you as a client on our marketing materials, including on our website.
Unless agreed otherwise in writing between the parties and subject to the licenses granted in this Section 21, each party agrees that it shall not issue public announcements, press releases, marketing materials, case studies, researches or other forms of publicity or other publicity related to the Services and the relationship between the parties.
Subject to Sections 6 and 7, each party can terminate an Order Form for a cause upon written notice of termination to the other party if this a party breaches any material obligation provided hereunder and the breaching party fail to cure such breach within 30 days of the receipt of the written notice.
Upon termination of the Subscription Period, for any reason, you shall have a limited access to the Services for a limited period of 30 days during which you may extract your Customer Data. Promptly after this time period, we will securely delete all your Customer Data, including any accounts and Personal Data of End Users, in accordance with our standard practices for data retention.[VH3]
23. Export Control; Anti-Bribery
Each party shall comply with all applicable anti-bribery laws and regulations, including, without limitation, the Canadian Corruption of Foreign Public Officials Act, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and any other applicable laws. Neither party or its subsidiaries is or has been the subject of any investigation or inquiry by any authorities with respect to potential or actual violations of anti-bribery laws.
This Agreement is made subject to any restrictions concerning the export of any products or technical information required to deliver the Services from Canada or other countries that may be imposed on the parties from time to time. Each party agrees that it will not export, directly or indirectly, any products or technical information acquired from the other party under this Agreement to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with applicable laws[VH4] .
24. Governing Laws; Jurisdiction; Dispute Resolution
If you are located in the European Union, the validity, construction and performance of this Agreement and the legal relation between you and us shall be governed by and constructed in accordance with the laws of [TBD[VH5] ], excepting its choice of law rules if the application of such rules would result in the laws of another jurisdiction being applied.
If you are located elsewhere in the world, the validity, construction and performance of this Agreement and the legal relation between you and us shall be governed by and constructed in accordance with the laws of Quebec, Canada, excepting its choice of law rules if the application of such rules would result in the laws of another jurisdiction being applied.
Any dispute between you and us arising out of or relating in any way to your access or use of the Services shall be addressed through confidential negotiations, which shall be treated as compromise and settlement negotiations under the relevant rules of evidence. If the matter in dispute has not been resolved within thirty (30) days of the initiating party’s written request for negotiation, the parties shall (…)[VH6]
25. General Provisions
If any provision of this Agreement is in violation of any governmental statute or regulations, or is illegal for any reason, said provision shall be self-deleting without affecting the validity of the remaining provisions.
The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
This Agreement describes the entire understanding and agreement of the parties and supersedes all oral and written agreements or understandings between them related to its subject matter.
We may assign this Agreement, in whole or in part, at any time with or without notice to you. You may not assign this Agreement, or part of it, to any other person without our prior written approval. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Services or any part of the Services.
Appendix A – Description of Services
The Services include the following functionalities and components:
· We will provide you with a Flex-Mat sensor hardware and a USB charging cable (the “Flex-Mat Sensor”) for the duration of the Term. You may order additional or replacement Flex-Mat Sensor through an Order Form at the then current market pricing for the Flex-Mat Sensor.
· The Flex-Mat Sensor is delivered with an Instruction Manual.
· You may create as many End Users as you want through the web application.
· The Flex-Mat Sensor is used to enable readings of screen box vibrations. The Flex-Mat sensor then generates a report that can be sent or reviewed through a mobile application or a web-based application (the “Vibration App”).
· The Flex-Mat Sensor measures g-force, stroke, rpm and orbit, including lateral movement.
· If the cellular network is limited or the connection between the Flex-Mat sensor and the applications is otherwise limited, the data will be stored locally on the mobile devices. Once a suitable connection is available, the information is sent to the web application.
· The Vibration Apps allow you to visualize previous reports and obtain an historical perspective on the data gathered by the Flex-Mat sensor on the web application.
We may, from time to time, develop new modules or versions which add material functional capabilities or new features to the Services (“Upgrades”). Upgrades are included in the license granted to you. Notwithstanding the foregoing, some Upgrades may be subject to additional fees, in which case, an Order Form must be executed.
· We will provide you with access to webinars and online material to help you interpret the gathered and data.
· We will provide you with an Instruction Manual which includes important information on handling and using the Flax-Mat Sensor and the Vibration Apps.
Appendix B – Service Level Agreement
Definitions and Explanations
· “Uptime” means the percentage of total possible minutes our sensors are available during a month. The uptime is calculated as follow:
[(Total minutes in a month – Downtime) / total minutes in a month] x 100.
· “Downtime” means the overall number of minutes our sensors were unavailable during a month. Downtime excludes Scheduled Downtime (as defined below).
Our uptime commitment for the Services is of 99.95%. A repetitive and significant breach of this commitment shall be considered a material breach of this Agreement.
To ensure optimal performance of the servers, we perform routine maintenance on the servers on a regular basis, requiring servers to be removed from service. We reserve up to 8 hours per month of server unavailability for maintenance purposes. These are referred to as “Scheduled Downtime”. We will provide with written advanced notice of maintenance at least 72 hours before the Scheduled Downtime. This notice will be sent by email to you, at the email noted on the Order Form. If this email changes, it is your responsibility to advise us.[VH7]
Under certain circumstances, we may need to perform emergency maintenance, such as to install security patches. We will not be able to provide you with an advanced notice in case of emergency maintenance. Unavailability due to emergency maintenance is included in the uptime commitment and counts as a downtime.
Technical support is available through our website at […]. Our policy is to respond to support tickets within twenty-four (24) hours during regular business hours (Monday to Friday, 9AM to 5PM ET), and excluding statutory holidays.
Upon contacting support, End Users will be required to provide identifying information and a full description of the problem or request including error messages and other troubleshooting information as requested by technical support personnel.
We maintain an incident management process substantially as described below. The objectives of the incident management process are to restore normal service operation without due delay and to minimize impact on business operations, thus ensuring that the usual levels of service quality and availability are maintained.
Upon becoming aware of an incident, we will classify the incident based on its severity, as described below:
· Unavailability of the Services
· Imminent threat to Personal Data
· Performance of Services delivery is impacted, with significant difficulties to use the Services
· Accuracy, completeness or functioning of the Flex-Mat Sensors is impacted, leading to unsatisfying results
· No workarounds or alternatives can easily be used
· Alternatives or workarounds to the incident can easily be used by End Users to use the Services;
· No significant impacts on the performance of the Services, or limited impacts which can affect enjoyment but not usability
We will address incidents based on their severity. High Severity incidents will be acknowledged and addressed immediately after being classified as such. We will provide you with frequent updates as to the progress of the remediation activities, and until the Services are restored.
3 Data Processing Agreement
Latest update: October 2019
This Data Processing Agreement (“DPA”) is a legal agreement between you between you (the “Customer”; “you”) and either one of this entity:
• If you are located in the European Union:
Major Europe S.A.
Rue des Gaillettes 9
• If you are located elsewhere in the world:
Major Wire Industries Limited
225 North Montcalm Blvd.
Canada, J5R 3L6
(“Major”; “we”; “us”)
This DPA is part of our Terms of Services and govern how we process Personal Data subject to the General Data Protection Regulation (“GDPR”) when we process Personal Data on your behalf, without the meaning of Art. 4(8) and 28 GDPR. In case of a contradiction between this DPA and the Terms of Services, this DPA shall have precedence. If you have any questions pursuant to this DPA, you can reach out to us at email@example.com.
For the purpose of this DPA, the following terms shall have the following meanings. All terms not defined below with a capital letter shall have the meaning set forth in the Terms of Services.
· “EU Applicable Laws” means any applicable laws and regulations to a given situation, to the extent that these are recognized in the European Union.
· “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation);
· “Personal Data” means any information that we process on your behalf in connection with the Terms of Services or your documented instructions that qualifies as Personal Data as per Art. 4 of the GDPR, and which is subject to the GDPR;
· “Data Subject”, “Member State”, “Controller”, “Processor”, “Subprocessor”, “Supervisory Authority”, “Recipients” and “Personal Data Breach” shall have the meaning set forth in the GDPR, and their cognate terms shall be construed accordingly.
· “International Transfer” means (i) a transfer of Personal Data from us to a Subprocessor, or another of our establishment; (ii) an onward transfer of Personal Data from a Subprocessor to another Subprocessor or another establishment of Subprocessor, in each case, where such transfers would be prohibited by the GDPR in the absence of a proper mechanism pursuant to Art. 44 and seq. GDPR.
1. Details of the Processing
· Nature and Purposes of the Processing. We process Personal Data of End Users through the Vibration Apps to allow End Users to use our Services, as described in the Terms of Services.
· Duration of the Processing. The processing begins at the Activation Date and continues during the Initial Term and any Renewal Term. The processing ends upon the termination of any Initial Term or Renewal Term, for any reason, and upon the subsequent deletion of the Personal Data.
· Category of Data Subjects. We process the personal data of our Customers’ employees and agents that are using the Vibration Apps.
· Types of Personal Data. [VH2] We process the following types of personal data pursuant to the Terms of Services:
o Online identifiers
o Electronic data and trackers, such as cookies, for the Vibration Apps to function according to the Specifications.
2. Processing of Personal Data
We will not process Personal Data other than on your documented instructions unless processing is required by EU Applicable Laws to which we are subject, in which case, to the extent permitted by EU Applicable Laws, we will inform you of such legal requirements before the relevant processing of that Personal Data.
3. International Transfers
We host the Personal Data of our European clients our data centre located in the European Union. Notwithstanding the foregoing, you agree and acknowledge that our Subprocessors and us may process your Personal Data from outside the European Union. We will ensure that a proper mechanism pursuant to Art. 44 seq. GDPR is in place prior to proceed with any International Transfer.
4. Personal Data Breach
We will notify you without undue delay, and in any case, no later than twenty-four (24) hours upon becoming aware of a Personal Data Breach affecting Personal Data, providing you with sufficient information to allow you to meet your obligations to report or inform Data Subjects or a Supervisory Authority or any other authority of the Personal Data Breach. For greater precision, this notification shall minimally include (i) a description of the nature of the Personal Data Breach, including where possible, the categories and approximate number of Data Subjects concerned, and the categories and approximate number of Personal Data records concerned; (ii) a description of the likely consequences of the Personal Data Breach; (iii) a description of the measures taken or proposed to be taken by Supplier to address the Personal Data Breach, including, where appropriate, measures to mitigate possible adverse effects.
If this information is not available at the time of disclosure, we will follow up promptly and as soon as the information is available to complete our disclosure to you.
5. Data Subjects Rights
We will implement commercially reasonable technical and organization measures to allow you to respond to Data Subject Rights requests under EU Applicable Laws, including Sections 12 to 23 GDPR.
We will also (a) promptly notify you if we receive a request from End Users to exercise a Data Subject Right in respect of any the Personal Data; and (b) ensure that we do not respond to that request except on your documented instructions, or as required by applicable laws to which we are subject.
You agree to make commercially reasonable efforts to support our efforts to comply with EU Applicable Laws, including answering promptly and diligently any requests for information. We agree to do the same with you.
7. Right to Audit Us[VH3]
We will make available to you all information necessary to demonstrate our compliance with this DPA, and we will allow for or contribute to audits, including inspections, conducted by you or your auditor. You have to give us a 15 days prior notice for any audit, and ensure that the audit is only carried out to the extent necessary so as not to inappropriately disturb our operations. Audits must be conducted during our normal business hours, and are subject to the execution of a confidentiality agreement, as appropriate. Audits shall be conducted no more than once every calendar year, and at your expense. For greater clarity, if you conduct an on-site inspection, we reserve our rights to charge you a reasonable fee for the time invested by our personnel. We also reserve our right to charge filling fees to complete customized questionnaires.
You acknowledge and agree that we may use Subprocessor to process the Personal Data. We use the Subprocessors available on this list.[VH4]
If we need to replace a to onboard a Subprocessor, we will advise you at least 2 weeks in advance. You are entitled to object to this change within 5 days of receiving this notice by stating reasonable grounds for the objection. If we cannot find an alternative or use a different Subprocessor that you agree with, you may be entitled to terminate the Terms of Service with cause, and we will reimburse you for the fees corresponding to the remaining period of time in the Term (in proportion thereof). [VH5]
We will enter in data processing agreements substantially similar to this DPA with our Subprocessors.[VH6]
9. Confidentiality obligation
We will ensure that the individuals who have access to your Personal Data are subject to an appropriate confidentiality obligation. We will only allow individuals to access Personal Data on a need to know basis.
10. Data Protection Impact Assessment
If you are required to perform a Data Protection Impact Assessment pursuant to GDPR, we will deploy commercially reasonable assistance to provide you with any requested information. We may charge you additional fees if the requested assistance is unreasonable, abusive or unnecessary time consuming. We will advise you before we charge such fees.
11. Technical and organizational measures regarding data security
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, we will implement appropriate technical and organizational measures to ensure a level of security for Personal Data appropriate to that risk.
12. Deletion or Return of Personal Data
Within 30 days of the termination of the Services, for any reason, you may request either (i) the deletion of all Personal Data or (ii) the return of all Personal Data and the subsequent deletion of this Personal Data. Notwithstanding the foregoing, we may retain Personal Data as required for legal purposes. Backup tapes shall be deleted pursuant to usual retention periods.