General terms and conditions
General terms and conditions
These general terms and conditions apply to the delivery of product, service, consulting and/or support services by Sensative AB (hereinafter: ”Sensative"), incorporated and registered in Sweden with company number 556922-4644 and registered office at Mobilvägen 10, 223 63 Lund, Sweden, to a customer (hereinafter: ”Customer”), and constitute a legal binding agreement between Sensative and the Customer
By accepting these general terms and conditions you confirm that (i) you accept them on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by these general terms and conditions (and you agree to act in a manner consistent with these general terms and conditions) and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity. You may not accept this Agreement on behalf of another entity unless you are an employee or other agent of such other entity with the right, power and authority to act on behalf of such other entity.
Sensative’s Products and Services are aimed at companies as B2B, please do not purchase any Products and Services and do not accept these general terms and conditions if you act on behalf of yourself as an individual.
In these general terms and conditions the following terms shall have the meaning defined herein:
Shall mean the company that enters this agreement by purchasing Sensative’s Products or Services.
Shall mean that a function that has worked in a sensor provided by Sensative or in the IoT platform does not work in the intended manner whereby the Product/ the Service prevents or obstructs the intended use or that the Product/Service does not meet the agreed specification.
Shall mean Sensative’s delivery of the product, service, adaptations, changes and the result of a special consulting service.
Shall mean the order of the products or services placed by the Customer under this agreement.
Shall mean Sensative and the Customer and the Party that enters this agreement.
Shall mean Starter-kits, any and all computer and computer-related hardware, including, but not limited to, sensors, Strips and gateways.
Shall mean Yggio, Sensative’s software-as-a-service, which is provided through Sensative’s Public Cloud or Sensative’s Private Cloud and Sensative’s Application Programming Interfaces (“APIs”). Services may also include consulting, education/training sessions, support and/or installation work provided by Sensative if included in the applicable quote from Sensative or other ordering documents agreed between the parties.
Shall mean a reserved time for performing administrative tasks of the Service. Service windows (not during availability period) are agreed with each Customer individually.
Shall mean a Service level agreement - an agreement between Sensative and the Customer that describes what kind of services Sensative will supply and defines the service standards Sensative is obliged to meet. Standard SLA for Starter Kit is carried out by support via email: email@example.com 8:00 – 17:00 (CET)
Shall mean any and all (a) computer programs, including any and all software implementation of algorithms, models and methodologies, whether in source code, object code, human readable form or other form, (b) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise, (c) descriptions, flow charts and other work products used to design, plan, organize and develop any of the foregoing, (d) screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons and (e) documentation, including user manuals and other training documentation, relating to any of the foregoing.
Sensative's own developed, patented and manufactured IoT-sensors.
Shall mean Sensative and Sensative’s suppliers/providers.
Shall mean a form of Sensative’s problem solving applied to repair failed products or processes.
Shall mean a day from Monday to Friday from 8.00 till 17.00 (CET) excluding public holidays.
An advanced IoT integration platform, including Yggio core applications, such as Location Manager, Rule Engine and Control Panel used by customers to gain their own operational availability over connected sensors, actuators, control systems, measuring devices and other equipment used outside in the field or in buildings. Yggio can be installed on-prem or be available as Software-as-a-Service via Sensative’s Public Cloud or Sensative’s Private Cloud.
2. DESCRIPTION OF THE PRODUCTS AND SERVICES
Sensative’s products are being developed and delivered by Sensative in an as-is basis. The Sensative services are being provided to support the Customer in implementing IoT solutions and is provided on an as-is basis, and Sensative provide the IoT platform as a “Software-as-a-Service” (“SAAS”). Any new functionality added to the IoT Platform over time, including new releases of the IoT Platform are subject to the Terms. Over time, updates made to the IoT Platform may change the specification of APIs and may affect compatibility with devices and mobile applications. The Customer acknowledges and agrees that old versions of the IoT Platform may cease working after an update. The Customer will be notified of updates of the API that will change functionality thirty (30) days in advance if the Customer provides Sensative with contact email address for such updates. In order to provide Sensative with contact email address for API updates, the Customer must email legal@Sensative.com clearly stating the request. It is the Customer’s responsibility to make sure Sensative has a valid email address from time to time. The Customer agrees that Sensative shall not be liable for any suspension, discontinuance or modification of the Services, to the Customer or to any third party. The Customer acknowledges and agrees that if Sensative for any reason has to disable access to the Customer’s user account, the Customer may be prevented access to the Services and its content. The Customer is under no circumstances entitled to refund or reimbursement of prepaid fees for the Services in the event of discontinuance as set forth herein.
3. USE OF SERVICES
Customer’s personnel is responsible for using and managing the included functionality. The Customer shall provide Sensative with access to all information and documentation required to perform and deliver the service in accordance with the agreement.
In order to use Yggio, the Customer may be required to register an user account, select a password and provide the Service User’s name. An user account may also require the Customer to provide verifiable email address. The Customer warrants that any registration information provided by the Customer will always be kept accurate, complete, and updated. The Customer is not permitted to transfer the Customer’s user account without Sensative’s prior written permission. If the Customer represents an organization or entity, the Customer guarantee that the Customer is authorized to agree on the Terms on behalf of that organization or entity.
Unless a binding written agreement signed by authorized representative of Sensative has agreed otherwise, the Customer agrees to only use Yggio for purposes permitted by the Terms and by any applicable laws. Sensative will not be responsible for any unlawful usage of the Services by the Customer. The Customer may use the public and published APIs of Yggio commercially in order to integrate the Customer’s products or services with Yggio. All such use is subject to the Terms. Using Yggio may include connecting Sensative products to other equipment or integration of external services to Sensative Services such as for example external cloud services. The Customer acknowledges and agrees that the Customer will not connect any physical devices or third party services to Yggio (or otherwise use the Sensative solutions) in a manner that could be dangerous to any person, or which could cause damage to or loss of any property (whether real, personal, tangible or intangible) or disturb or damage the Services. The Customer is not permitted to use the Services or Sensative products for any purpose that is illegal, immoral or otherwise unethical in the Customer’s jurisdiction. In the event that any such use comes to Sensative’s attention, Sensative reserves all rights to terminate the Customer’s use of Yggio and/or claim damages for any damages Sensative might incur.
4. USE OF THE SENSATIVE’S PUBLIC CLOUD
All rights in and to the Sensative’s Public Cloud provided by Sensative for use of the Services is the sole property of Sensative and the Customer is only permitted to use the Sensative’s Public Clouds to access and make use of the Services. Any other use will be considered as an infringement of Sensative’s rights. The Software contains confidential and proprietary information that is the sole property of Sensative. The Customer agrees to not decompile, disassembly or otherwise reverse engineer the Software in excess of what is allowed by mandatory law. Further, the Customer is not permitted to disclose, transfer or otherwise distribute any information pertaining to the Sensative’s Public Cloud to third parties without the prior written consent by Sensative. The Customer agrees to not remove any copyright notices or other information, such as open source disclaimers, distributed with the Sensative’s Public Cloud.
The Customer shall not submit any information, use or interact with the Services in a way that:
- infringes the intellectual property rights or any other rights of any person or organization; and/or
- is threatening, harmful, harassing or otherwise objectionable; and/or
- tries to obtain any security information from any other user of the Services; and/or
- risks the loss of security information and/or
- breaks the law; and/or
- cracks any security encryption codes, passwords or in other ways violates the security of any computer network; and/or
- overloads Yggio infrastructure, interfere with the proper working of, or runs any form of “spam” on, Yggio; and/or
- attempts to obtain the source code of Yggio
The Customer agrees that the Customer accesses all content of Yggio (submitted by the Customer or by anyone else) at the Customer’s own risk.
6. PRICES AND DELIVERY OF PRODUCTS AND SERVICES
6.1 Prices and shipping of Products
Prices are stated in EUR and excluding VAT and other costs. Shipping cost is to be paid extra.
Unless otherwise stated or agreed upon in writing, payments for first orders are due at the time of order. Payments for additional orders from Sensative AB are due at the time of delivery. The products remain Sensative's property until full payment is made. All products will be shipped Ex Works, Sensative’s facility in Lund, Sweden.
Sensative’s software-as-a-service Yggio, is included in the Starter-kit for a limited time period, number of users and devices that are stated in the product documentation on the Sensative webshop. If the customer has not canceled the subscription for Yggio no later than three (3) months before the expiration date the license for Yggio will be extended with another 12 months and invoiced in advance. If the customer exceeds the number of devices and users that are included in the Starter-kit, Sensative will send a separate invoice for licenses for the additional devices and users on a quarterly basis with Net 10 payment terms.
For additional consulting services, education/training sessions and/or installations separately from what is included in the Starter-kit, Sensative will send an invoice by the end of month after the performance of the services. The net amount is to be paid in full by the Customer within 10 days. Sensative may hire a subcontractor to perform the service.
6.3 Penalty interest
Sensative will charge the interest of 1.5% per month on any invoice balance unpaid after 30 days from the invoice date. Amounts owed by the Customer with respect to which there is no dispute shall be paid without set-off for any amounts which the Customer may claim are owed by Sensative and regardless of any other controversies which may exist. Payment shall be made for the goods without regards to whether Customer has made or may make any inspection of the goods.
6.4 Order, shipment and delivery
Acceptance of the Customer’s order is conditional on the Customer’s assent to these terms and conditions. The agreement is entered at the moment of confirmation of the order to the Customer. If Customer objects any terms, such objection must be made in written form and delivered to Sensative within 10 days of Sensative’s order confirmation date. Failure to make such an objection, or acceptance by the Customer of any goods delivered by Sensative, shall be deemed acceptance of these terms and conditions. If shipments are delayed by Customer, payments are due from the date when Sensative is prepared to make shipments. Goods held for the Customer are at the Customer’s risk and expense. All products shall be shipped EXW (Ex Works, Incoterms 2010) Lund Sweden. Unless otherwise stated or agreed upon in writing. The Customer shall be responsible for all transportation, insurance, duties and other applicable expenses. Risk of loss or damage shall pass to the Customer upon delivery of the product to the common carrier for shipment. Sensative may deliver goods in installments. Shipping dates are approximate only. Sensative shall not be liable for any loss or expense, whether by way of contract or tort, (consequential or otherwise) incurred by the Customer, if Sensative fails to meet the specified estimated delivery schedule because of unavoidable production or other delays. The additional cost incurred by a strike, lockout or similar is at the Customer 's risk. Sensative delivers all products sold at the time stated in Sensative's order confirmation. Sensative has the right to deliver products before agreed delivery time unless otherwise stated or agreed upon in writing. Delivery time can be extended even if the cause of delay occurs after the expiration of the original agreed delivery time. Sensative should inform the Customer about the expected delay. Sensative shall also inform about the reason for the delay and the new expected delivery time. The Customer cannot cancel the order due to the delay, unless this can be done without additional costs for Sensative.
6.5 The Customer should inspect the Products upon delivery. Any damages must be reported to the carrier and to Sensative immediately. Hidden transport damage that has not been discovered or should have been discovered at the time of delivery shall be reclaimed as soon as it can be done and under all circumstances within one week of receipt of the delivery. If the Customer does not claim transport damage within the specified time limit, the Customer loses the right to make a claim against the carrier and Sensative.
To be eligible for a return, Sensative’s sensors, gateways or third party’s products must be in the original sealed packaging, unused and in the same condition that you received it. If 7 days have gone by since your purchase, unfortunately Sensative can't offer you a refund or exchange. To complete your return, we require a receipt or proof of purchase.
6.6. Sensative’s Starter-kit is not refundable.
If Customer should fail to notify Sensative of a defect in a timely manner, or if the Product delivered is processed, mixed or combined with other items – not approved in advance by Sensative – by the Customer or the end user, the delivered Product shall be deemed accepted without reservation. Issuance of a complaint neither shall release the Customer from his payment obligations, nor shall it justify refusal by the Customer of further deliveries of the Products from the subject or another contract. Inappropriate handling, storage or use of the Products delivered will result in a foreclosure of all claims whatsoever against Sensative. If a defect is acknowledged by Sensative, it may, at its discretion, either take back the defective Product at the agreed price or provide another Product upon return of the original Product.
7. WARRANTY AND EXCLUSIVE REMEDIES
Warranties on goods are those provided by products manufacturers. The goods furnished by Sensative shall conform to Sensative’s standard Limited
The Customer’s use of the Products is at the Customer’s sole risk. The Products are provided on an “as is” and “as available” basis. To the fullest extent permitted by applicable law, Sensative expressly disclaims all warranties, conditions and other terms of any kind, whether express or implied, including, but not limited to any implied term of merchantability, satisfactory quality, fitness for a particular purpose, and any term as to the provision of services to a standard of reasonable care and skill or as to non- infringement of any intellectual property right. Sensative makes no warranty or representation that:
- the Services will meet the Customer’s requirements,
- the Services will be uninterrupted, timely, secure, or error- free,
- the results that may be obtained from the use of the Services will be accurate or reliable, and
- the quality of any Products, information, or other material purchased or obtained by the Customer through the services will meet the Customer’s expectations.
Notwithstanding the foregoing, Sensative warrants that the Product will perform as per specification for a period of one (1) year from date of delivery. Any material downloaded or otherwise obtained through the use of the Services is at the Customer’s own discretion and risk. The Customer will be solely responsible for any damage to the Customer’s computer system, mobile devices or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by the Customer from Sensative or through or from the Services shall create any warranty or other obligation not expressly stated in the Terms. In the event of major defects that impede the Customer’s use of the Services and that are attributable to Sensative, Sensative undertakes to act to rectify such defect without unreasonable delay. In the absence of intent or gross negligence by Sensative, Sensative otherwise assumes no responsibility for defects or deficiencies in the Services. Error notification must be given by the Customer in accordance with the instructions announced by Sensative and within a reasonable time of the discovery of the defect but no later than seven (7) business days..
To the extent permitted under mandatory law, Sensative’s entire liability, due to claims from the Customer arising out of or in relation to this agreement, shall not exceed the net invoice value during a time period of three (3) months preceding the point in time for the liability claim. The existence of more than one (1) claim from the Customer shall not enlarge or extend the above-mentioned limitation of liability. Sensative shall only be liable for direct damages caused under these Terms. Sensative shall not be liable to the other under these Terms for:
- any loss of use or corruption of the Software, data or information;
- interruption of business;
- loss of data;
- any indirect, special incidental, punitive or consequential damages of any kind;
- loss of profit;
- loss of anticipated savings; and
- loss of business or loss of data whether in contract, tort, regarding product liability or otherwise.
The Customer agrees that any claim or cause of action arising out of or related to use of the Service of the Terms must be made to Sensative within one (1) year after such claim or cause of action arose or be forever barred. The limitations on Sensative’s liability to the Customer in the above paragraph shall apply whether or not Sensative has been advised of or should have been aware of the possibility of any such losses arising.
If the goods furnished by Sensative fail to conform to Sensative’s standard Limited Warranty: Sensative’s sole and exclusive liability shall be (at Sensative’s option) to repair, replace or credit Customer’s account for any such goods which are returned by the Customer during the applicable warranty period set forth above, provided that (i) Sensative is promptly notified in writing upon discovery by the Customer that such goods failed to conform to the Agreement with a detailed explanation of any alleged deficiencies, (ii) such goods are returned to Sensative, location and terms to be determined based on the reason for the return and (iii) The alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper storage or installation, unauthorised repair or improper testing. Sensative has the right to refer the Customer directly to the manufacturer or service workshop for the reparation. If Sensative chooses to repair or replace such goods, Sensative shall have a reasonable time to make the reparations or replace the goods. Any goods returned to Sensative must be in accordance with Sensative’s Return Material Authorization (RMA) Policy which will be provided at Customer’s request. Sensative’s maximum total liability in connection with the sale of the Product in conformance with the Customer’s order shall not exceed the price actually paid to Sensative for the particular product. The period of such liability shall not extend beyond the warranty period (1 year). Sensative's liability for product failures is limited to what is stated above. Sensative is not responsible for (i) indirect or consequential damages, such as loss of production, loss of profits or other similar damages due to difficulty of using computers or information, or (ii) loss of data.
Limitation of liability:
Sensative is not responsible for any errors caused by products, software, service or other equipment not provided by Sensative. Sensative will correct the errors, that Sensative is responsible for, according to the agreed SLA, but only under the condition that the Customer has reported the errors to Sensative immediately and in accordance with these general terms and conditions. SLA can be adjusted by Sensative if needed and when needed. If Sensative chooses not to correct the errors, the Customer will be entitled to a reasonable deduction on the payment for the Service. If the Service includes counseling, Sensative's liability is limited to counseling based on information provided by the Customer to Sensative. Sensative shall not be liable for the decisions that the Customer makes based on the advice provided by Sensative. The Customer shall within reasonable time notify Sensative about all planned alterations in the Customer’s IT-system. Sensative shall not bear responsibility for the errors that occurred due to changes not notified to Sensative.
The Customer loses his right to make a compensation claim if it has not been made in writing without delay, but no later than one (1) month after the error in Service has occurred.
8.1 General terms
Sensative provides service to the Customer.
8.2 Scope of service
The support service is provided by email 8:00-17:00 CET (Europe). It includes the following services:
(a) Support for problems and general user issues with products, software and services provided by Sensative.
(b) Free updates of Yggio. The updates will be carried out in consultations with the Customer 's staff.
Sensative’s Service will be performed by the qualified and competent personnel. Sensative may hire a subcontractor to perform the Service.
8.4 Limitation of liability
Sensative will correct the errors in the Support that Sensative is responsible for. Sensative’s maximum liability under the Agreement shall be limited to direct financial damages and should not exceed the total payments made by the Customer for the relevant support services during the six-months period (6) before the act or omission that forms the basis for liability. If errors could not be corrected within three months, the Customer has the right to terminate the Agreement immediately and receive a compensation for the unused time. Sensative shall have no liability for the loss of data caused by the Customer 's failure to ensure that appropriate backups are performed.
9. INTELLECTUAL PROPERTY RIGHTS
Sensative shall have exclusive rights to all patents, trademarks, service, marks, copyrights, trade secrets and all other intellectual property rights regarding the Product and the Service. Sensative’s trademarks include but are not limited to Sensative, Yggio, Strips logos, product and service names. Title to all software Products shall remain with Sensative and Customer’s use thereof shall be restricted under a non- exclusive license agreement granted by Sensative pursuant to the terms of Software/Technology License Agreement between Sensative and Customer. Customer recognizes and agrees that Sensative owns all Sensative Technology and IPRs contained in Product. Customer agrees not to display or use in any manner, Sensative’s trademarks without Sensative’s prior permission.
Sensative warrants that Service provided by Sensative and the intellectual property rights created or provided by Sensative (except for third-party services or Sensatives products suppliers), as far as Sensative is aware, does not infringe third party's right. The Customer shall immediately notify Sensative in writing about any third party's claims regarding infringement of intellectual property rights. In case of an infringement claim that Sensative is responsible for (not an infringement due to modification of the Customer’s or third party’s products or similar infringement), Sensative shall have the right, at its own expense, to take over the dispute and bring the action on behalf of the Customer, either to insure the Customer’s continued use of the Service or Product or to replace the disputed part of the Service or Product with a similar acceptable service or product. The Customer does not have the right to admit responsibility, enter into agreements, conciliation or compromise with third parties regarding such claims without obtaining Sensative's written consent. If Sensative can’t secure the Customer 's right to use a similarly acceptable service or product, each party has the right to terminate the agreement in respect of such service or product. The total liability that may arise for Sensative towards the Customer in such case shall be limited to the price which was paid by the Customer for such service or product (less the benefit received by the Customer), provided that the Customer returns the product. Sensative will repay just the compensation and damages, which the Customer is required to pay through settlement or judgment, for the infringements caused by Sensative. The Customer is not entitled to receive any other compensation for damages arising from intellectual property rights infringement in the Service or Product for which Sensative is responsible.
10. CHANGES TO THE TERMS AND CONDITIONS
Unless otherwise stated or agreed upon in writing, the Agreement can be terminated by either Party in writing, with a notice of at least 3 months. Notwithstanding the foregoing, either Party may terminate the Agreement in writing immediately if another Party:
(a) substantially infringes or violates the provisions of the agreement and rectification, where such may occur, but does not occur within 30 days of provided written notice, or
(b) goes bankrupt, being liquidated or becomes subject to corporate restructuring. The Customer has the right to use the Service during the notice period if the Customer has fulfilled his payment obligation.
12. DISPUTE RESOLUTION
12.1 These terms and conditions, as well as Agreement between Sensative and the Customer, are governed by and interpreted in accordance with the laws of Sweden. Dispute concerning the interpretation or application of these terms and conditions or any controversy or claim arising out of the Agreement or a breach thereof shall, on written request of either Party served on the other, first refer the dispute under mediation proceedings according to the International Chamber of Commerce Mediation Rules in the country of Sweden, city of Malmö. Unless otherwise stated or agreed upon in writing, the official language of such mediation proceeding shall be English.
12.2 If the dispute cannot be resolved through mediation within ninety (90) days of proceedings, such dispute shall thereafter finally be resolved by arbitration in the country of Sweden, city of Malmö and shall be conducted in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with the said rules. Unless otherwise stated or agreed upon in writing, the official language of such arbitration proceeding shall be English. The arbitration decision will be final and may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the decision and an order of enforcement, as the case may be. The prevailing party in any legal proceeding shall be entitled to recover its reasonable attorneys’ fees incurred in connection therewith.
13. FORCE MAJEURE
13.1 Sensative shall not be liable for the delays in delivery or failure to perform due directly or indirectly to causes including but not limited to causes beyond Sensative's reasonable control; fires, natural disasters, floods, earthquakes, storms, acts or failure to act of any governmental authority; wars or hostilities (including riots and revolutions), port congestion, strikes or other labor disputes by a third-party, embargoes; pandemic, epidemic or inability due to causes beyond Sensative's reasonable control to obtain necessary and proper labor, materials, components, facilities, energy, fuel, transportation, governmental authorizations or instructions, material or information required from the other party.