Platform Products & Services and Connectivity Services - Terms and Conditions
TELIT TERMS AND CONDITIONS
These Terms and Conditions (these "Terms") shall apply to any and all PaaS, SaaS, customer-hosted and Telit-hosted services, licenses, support and maintenance services ("Platform Services and Products"), Connectivity Services ("Connectivity Services") and Professional Services ("Professional Services", together with the Platform Services and Products and the Connectivity Services, the "Services") provided by Telit to the Customer (or its affiliates) pursuant to any orders of products or services ("Orders"). In the event that any Order is specifically made subject to different terms and conditions, to the exclusion of these Terms, then such other terms and conditions shall apply. References to Telit herein shall mean the relevant Telit entity specified on any Order or agreement signed by Telit and Customer, as applicable.
The Customer acknowledges that any purchase of Connectivity Services and or Professional Services and or Platform Services and Products under any Order is subject to one (1) or more documents attached as Appendices thereto which set out the prices and certain other terms and conditions with respect to the services being provided (the "Specific Terms"). In the event of any conflict between these Terms and the Specific Terms, the Specific Terms shall govern.
THE FOLLOWING TERMS SHALL APPLY TO PURCHASE BY THE CUSTOMER OF PLATFORM SERVICES AND PRODUCTS, CONNECTIVITY SERVICES AND PROFESSIONAL SERVICES:
1. CHARGES AND PAYMENT.
Customer agrees to pay the charges set forth in the Order (or to the extent applicable in the relevant Specific Terms) (the "Charges"). Telit shall bill Customer from time to time for any one-time or non-recurring charges and unless specified otherwise in the Order or in the applicable Specific Terms, on a monthly basis for monthly recurring charges. Customer is responsible to pay all Charges, whether the Charges are resulting from use by the Customer, by the ultimate end user of the relevant services (the "End User") or by any other third party. Unless otherwise specified, all payments are due within thirty (30) days from date of the monthly invoice. Telit shall be entitled to amend the Charges upon notice to the Customer of no less than thirty (30) days (the "Payment Notice Period"), provided that upon any such amendment which is detrimental to the Customer, the Customer may terminate its order from Telit by notice in writing prior to the expiration of the Payment Notice Period. In the event that such detrimental amendment applies to some, but not all of the underlying Services being provided hereunder, the Customer may only terminate its order with respect to such Services as have been detrimentally affected.
With respect to any Connectivity Services provided, Customer acknowledges that from time to time roaming charges may be unintentionally incurred, due, for example, to proximity to a third party telecommunications network, even if Customer has not signed up for roaming in the specific jurisdiction in which roaming occurred or with the specific network operator providing roaming services. In such event, Customer agrees to pay the applicable amount charged by Telit.
The Customer may not contest a previously issued invoice more than thirty (30) days after the invoice date.
In addition to the charges due under its order from Telit, Customer shall be obligated to pay for any and all sales and other tax (including any universal service charge if applicable) arising from or applicable to the goods or services provided by Telit, except for taxes based on Telit's income. Telit shall bill as a separate invoice line item all such taxes. In the event that the Customer is required to withhold any sums due to Telit as a matter of law, the Customer shall pay such additional amount to Telit as would leave Telit in the same position as if such amounts had not been withheld.
3. LATE PAYMENTS.
Time is of the essence for all payments to be made by Customer. Therefore, for any payments not paid on a timely basis, Customer agrees to pay Telit a late fee in the amount of 1.5% per month (with a minimum charge of $5.00 USD per month – or the equivalent in Euros -) or if such amount is higher than permitted by applicable law, then the highest amount so permitted. Acceptance of late or partial payments (even if marked "paid in full" or the like) shall not restrict any rights of Telit to collect the full amount owed to it. For any check or electronic payment returned for nonpayment, or for any credit card charge back, Telit will assess an additional fee of $25 (or the equivalent in Euros) or such lower amount as permitted by applicable law. All amounts due, including disputed amounts, must be paid by the due date regardless of the status of any disputes and/or objection. If Customer fails to pay amounts due, Telit may, without derogation, assign Customer's account for collection and the collection agency may pursue such claims in court. Telit's remedies are not exclusive but are in addition to all other remedies provided by law.
4. DELIVERY OF GOODS AND RISK OF LOSS.
Shipment of goods shall be EXWORKS (Incoterms 2010,Telit Warehouse).
5. SUSPENSION AND TERMINATION.
Telit (or any of its suppliers) may suspend the provision of any Services hereunder, in whole or in part, for routine or emergency maintenance, without liability therefor. Telit will make commercial efforts to minimize the frequency and duration of such suspension (to the extent that such suspension is initiated by it), and where reasonably possible, to provide Customer with advance notice of such suspension.
Telit may also suspend or terminate the provision of any Services hereunder, if it shall determine, in its absolute discretion, that a Device is using the Services in a way which overloads, interrupts or degrades (collectively, "Degrades") a Network (as defined hereunder). Telit shall endeavor to give such notice as reasonably possible in the circumstances. In the event of suspension, Customer shall take such reasonable steps to remedy the relevant Device (or the IT service platform which communicates with the Device using the Services, as appropriate) so that such Degradation is reduced or no longer occurs. The Customer shall bear all costs relating to such remedy and any associated traffic costs for performing updates to the Device. In addition, Telit reserves the right to charge for costs driven from excess network signaling, unless such is due to a problem coming from Telit's network.
Without derogating from any of its rights pursuant to these Terms or under applicable law, Telit reserves the right to terminate any and all Services provided to Customer, in whole or in part, upon written notice, in the event of any material breach by Customer or any End User of the terms hereof, including but not limited to any delay in payment. Telit may at any time terminate any or all Services immediately by notice in writing to the Customer if the Customer goes into liquidation, becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver, trustee or administrator appointed or if any petition or action relating to any of the above is filed, or if the Customer ceases or threatens to cease to carry on its business or if any equivalent of the above shall occur in a country which has jurisdiction over the Customer.
Without derogating from any of its rights pursuant to these Terms or under applicable law, the Customer may terminate Services provided by Telit in the event of any material breach by Telit, provided however, that if such breach applies only to some, but not all of the Services being provided, the Customer may only terminate the order for the Services with respect to which the breach occurred.
Either Telit or Customer may terminate any order and the Services associated therewith, either in whole, or in part, upon thirty (30) days written notice to the other. Customer's right to so terminate shall be subject to the fulfillment of any agreed minimum term or minimum commitment (collectively, the “Minimum Commitment”) and shall not apply to any Professional Services ordered hereunder. For example, in the event that the Order requires Customer to pay, with respect to designated Services, a monthly service fee for a specified period (the "Minimum Period"), Customer may not terminate the relevant Services prior to the end of the Minimum Period, unless Telit shall so permit and in such case, subject to Customer paying the equivalent of the remaining monthly fees that would otherwise be payable to the end of the Minimum Period.
In the event of any breach or threatened breach with respect to any order by Customer, Telit may, without derogation, temporarily suspend the Services (under any or all orders, in whole or in part) without notice until such breach ceases. Notwithstanding any such suspension, the Customer shall remain liable to pay all Charges becoming due during the suspension period.
Each and all of the rights and remedies of Telit for any breach are cumulative to and not in lieu of each and every other such right and remedy.
Upon termination of any Services, any amounts due and payable as at the date or termination and any interest (if applicable) shall become immediately due and payable to Telit. Upon termination of any Services, other than for material breach by Telit, Customer shall be required to pay such amounts as necessary in order to fulfill the Minimum Commitment. Upon expiration or termination of any Services made by Customer, the Customer shall immediately return to Telit all of the Telit property (including any Software Programs – as such term is defined hereunder-) and/or Confidential Information in its possession or control and/or in the possession or control of any third party which received such from or through the Customer, without delay.
Any provisions of these Terms which by their nature would be deemed to survive termination or expiration shall so survive, including but not limited to any obligations of confidentiality.
6. OBLIGATIONS OF CUSTOMER.
(a) The Customer shall at all times: ( i ) comply with all applicable laws and regulations with respect to its activities hereunder and its use and distribution of the Services; (ii) take all necessary steps, to ensure that End Users and any other third parties receiving, distributing or otherwise dealing with the SIM Cards or the Services (collectively, the "Relevant Third Parties") comply with all applicable laws and regulations; and (iii) ensure that any End Users and Relevant Third Parties use the Services in accordance herewith, including by means of entering into agreements with them containing the relevant obligations and covenants set forth herein. The Customer shall be liable to Telit for any and all acts and omissions of the End User and Relevant Third Parties in connection with the SIM Cards and the Services, as though the Customer itself had performed those acts or omissions.
(b) The Customer shall not, and shall ensure that the End Users do not: ( i ) use the Services for any improper, immoral or unlawful purposes; (ii) act in such a way that the operation of the Services, or the operation of any network through which the Services are made available (a "Network") may be jeopardized; (iii) be involved in any fraudulent or other unauthorized use of the Network or any Services, and shall notify Telit in writing immediately upon the Customer becoming aware of, or suspecting, any such activity.
(c) The Services are not intended for use, and Customer may not use them or allow their use, in connection with any activity that requires fail-safe systems or in which a malfunction or error may result in loss of life, bodily injury, environmental hazards or damage to property, including the operation of nuclear facilities, aircraft navigation or aircraft communication systems, air traffic control, life support or weapon systems.
7. LIMITATION OF LIABILITY.
CUSTOMER ACKNOWLEDGES THAT TELIT PROVIDES ALL GOODS AND SERVICES (INCLUDING ANY SIM CARDS, SAAS SERVICES AND SOFTWARE PROGRAMS) ON AN "AS IS" BASIS, AND TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EXCEPT AS SPECIFICALLY PROVIDED HEREIN, TELIT SPECIFICALLY EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, TELIT, ITS AFFILIATES AND LICENSORS (TOGETHER, THE "TELIT PARTIES") WILL NOT BE LIABLE HEREUNDER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS, GOODWILL, USE, OR DATA), WHETHER UNDER CONTRACT, TORT OR STATUTE OR ANY OTHER THEORY OF LIABILITY, EVEN IF A TELIT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE AGGREGATE LIABILITY OF THE TELIT GROUP WITH RESPECT TO ANY SERVICES HEREUNDER WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE CUSTOMER TO TELIT THEREUNDER FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. IN THE EVENT THAT SUCH LIMITATION OF LIABILITY IS NOT ENFORCEABLE PURSUANT TO APPLICABLE LAW, THE TELIT GROUP SHALL BE ENTITLED TO THE MAXIMUM LIMITATION OF LIABILITY SO ALLOWED.
8. FORCE MAJEURE.
Telit shall not be liable for any delay or failure to perform any obligations hereunder if the delay or failure is due to events which are beyond the reasonable control of Telit, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by governmental authority, inability or refusal by third party suppliers to provide Telit underlying goods or services necessary to the performance of Telit or any other cause whatsoever beyond Telit'S reasonable control.
9. EXPORT CONTROL.
Customer shall not and shall not permit any End User or Relevant Third Party to be involved in or attempt to supply or use the SIM Cards or the Services, its constituent parts (including any deliverables provided with respect thereto) or any related technology and information in any way which is prohibited by any applicable export control and economic sanction regulations, including those of the United States, the United Kingdom and the European Union, including but not limited to the indirect and/or direct export, resale or other transfer of the SIM Cards or the Services to a destination subject to American, UK or EU or other applicable embargo where that act would be in breach of the terms of that embargo, or to an entity, person or organization listed on any applicable sanctioned party list, including those of the U.S.A, the UK or the EU. Customer represents and warrants that it is not located in, under control of, or a national or resident of any such country or on any such list.
10. APPLICABLE LAW.
These Terms (and all associated non-contractual obligations) shall be construed in accordance with the specific Telit entity which sells Services to the Customer. If Telit IoT Solutions Holding Ltd. , the laws of the State of New York will apply. If Telit Communications PLC, the laws of England and Wales will apply. If Telit Wireless Solutions GmbH, the laws of England and Wales will apply. If Telit Wireless Solutions Ltd, the laws of England and Wales shall apply. If the Services to the Customer are sold by any other Telit entity not specified in this paragraph, then the laws of England and Wales will apply. In the event that any dispute is not settled by negotiations between Telit IoT Solutions Holding Ltd. and Customer within thirty (30) days, the dispute shall be finally settled solely and exclusively under the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with said Rules. The arbitration shall be in New York, New York, and shall be conducted in the English language. In the event that any dispute (including any dispute associated with non-contractual obligations) is not settled by negotiations between Telit Wireless Solutions Ltd. and Customer within thirty (30) days, the dispute shall be finally settled solely and exclusively under the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with said Rules. The arbitration shall be in Tel Aviv, Israel, and shall be conducted in the English language. In the event that any dispute (including any dispute associated with non-contractual obligations) is not settled by negotiations between Telit Communications PLC or Telit Wireless Solutions GmbH, or any other Telit entity not specifically specified in this paragraph, as the case may be, and Customer within thirty (30) days, the dispute shall be finally settled solely and exclusively under the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with said Rules. The arbitration shall be in London, England, and shall be conducted in the English language. The award for any arbitration hereunder shall be final and binding upon the parties and may be enforced in any court of competent jurisdiction. All arbitral proceedings conducted with reference to the arbitration shall be kept strictly confidential. Notwithstanding anything to the contrary in the aforesaid, nothing herein shall be deemed to prevent Telit from seeking preliminary relief in any court with competent jurisdiction.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply hereto.
The Customer may not bring any claim hereunder later than one (1) year after (i) the cause of action first arose, or (ii) such date upon which the Customer became aware, or should have reasonably become aware of such claim, if later.
For purpose of the provision of notice in accordance herewith, until notified otherwise pursuant hereto, the address for notice of the parties hereto shall be:
If to Customer
Such address, fax number and email in the Order Form.
If to Telit IoT Solutions Holding Ltd.
5300 Broken Sound Blvd - Suite 150
Boca Raton, FL 33487
Att: Liat Menahemi
Chief Legal Officer and Corporate Secretary
If to Telit Communications PLC
Cannon Place, 78 Cannon Street
London, EC4N 6AF England
Att: Liat Menahemi
Chief Legal Officer and Corporate Secretary
If to Telit Wireless Solutions Gmbh
Friesenweg 4 / Haus 14t
22763 Hamburg, Germany
Att: Liat Menahemi
Chief Legal Officer and Corporate Secretary
If to Telit Wireless Solutions Ltd.
10 Habarzel Street, Tel Aviv
Att: Liat Menahemi
Chief Legal Officer and Corporate Secretary
If to any other Telit entity not specified in this Paragraph
Telit Communications PLC
Cannon Place, 78 Cannon Street
London, EC4N 6AF England
Att: Liat Menahemi
Chief Legal Officer and Corporate Secretary
All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed effectively given upon: (a) personal delivery (including by courier) to the party to be notified, (b) when sent, if sent by facsimile (with electronic confirmation) during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day, (c) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day following having been sent by email to the correct email address (provided that no "bounce back" email has been received). If actual receipt is earlier than any of the above deemed delivery dates, the notice shall be deemed effectively given on the actual date of receipt.
12. DATA PROTECTION.
The Telit's Data Protection Addendum (“DPA”) is incorporated into these Terms by reference and applies as between Telit and the Customer subject to the provisions of the DPA setting out the scope of its application.
(a) For purposes of these Terms, "Confidential Information" shall mean any and all information and data, however, conveyed or presented and whether technical or commercial, disclosed by Telit to the Customer in any form or manner, provided that each such item of information would appear to a reasonable person to be confidential, or is specifically stated by Telit to be confidential and also including any information which may come into the Customer's possession as a result or or in connection with these Terms and/or the Services.
(b) The Customer shall at all times keep confidential all Confidential Information and will not disclose such information to a third party without Telit's prior written consent. The Customer shall use Confidential Information only for the purpose for which it was provided.
(c) The Customer shall not be required to treat as Confidential Information any information which is (i) already lawfully in its possession; (ii) becomes publicly available other than as a result of breach of confidentiality by the Customer; (iii) is lawfully obtained by a third party entitled to provide such information and without restriction on disclosure; and (iv) required by law or competent regulatory authority, provided always that before disclosure, the Customer shall notify Telit thereof and provide it with an opportunity to object to such disclosure.
14. INTELLECTUAL PROPERTY; USE OF CUSTOMER NAME ETC; FEEDBACK.
(a) The Customer agrees that all intellectual property rights in the SIM Cards and the Services (including the SaaS Services and the Software Programs) are owned by Telit and its suppliers, including, without limitation, any and all trade and service marks, inventions, patents, copyright, design rights (whether registered or unregistered), database rights, and all other intellectual property rights subsisting anywhere in the world. The Customer shall not, and shall not allow any third party to use the name or trademarks or other designations of Telit or its suppliers without written consent. Any and all intellectual property owned by Telit or its suppliers may be enforced by such parties.
(b) Customer hereby grants Telit a worldwide, nonexclusive, nontransferable, royalty-free, license to use Customer's name, logo, and trademarks, on Telit's websites and promotional or advertising literature. Telit's use of Company's name and logos, and all goodwill and benefit arising from such use shall inure to the sole and exclusive benefit of Company.
(c)In the event that Customer shall provide Telit, its affiliates or any third party on its or their behalf with any feedback, ideas or information with respect to any of the Services provided hereunder (the "Feedback"), the Customer hereby grants Telit and its affiliates a non-exclusive, worldwide, fully paid up, transferable, sub-licensable, perpetual and irrevocable license to use, and have used such Feedback for any and all purposes, without payment or accounting.
These Terms, together with the Order, the Appendices thereto (including the Specific Terms) shall constitute the entire agreement of Telit and Customer, superseding all prior agreements or understandings, written or oral and cannot be amended except by mutual writing.
Customer may not assign any rights or duties hereunder without Telit's written prior consent. Telit is entitled to assign this Agreement in whole or in part. No representation, warranty, course of dealing or trade usage not contained or referenced herein will be binding on Telit.
No failure by Telit to enforce any of the provisions hereof shall be construed as a waiver of such provision or of the right of Telit to enforce thereafter each and every provision. Provisions herein which by their very nature are intended to survive termination, cancellation or completion of Customer's order shall survive such termination, cancellation or completion.
If any term herein is found by competent judicial authority to be unenforceable in any respect, the validity of the remainder of these terms and conditions will be unaffected, provided that such unenforceability does not materially affect the parties' rights hereunder.
THE FOLLOWING ADDITIONAL TERMS SHALL APPLY ONLY TO PURCHASE BY THE CUSTOMER OF CONNECTIVITY SERVICES
1. REFERENCE TO SIM CARDS.
Reference in these Terms to the provision or use of any SIM Cards shall be applicable only to those Services for which a SIM Card is required. For purposes of these Terms, "SIM Card" shall mean the card to which a unique number is ascribed which, when used with compatible equipment, enables access to, and use of, the Connectivity Services. The Customer shall be responsible for all usage of SIM Cards, whether by it or by End User or any third party and shall promptly notify Telit of any loss or theft thereof.
2. DEVICES AND DESCRIPTION OF MACHINE TO MACHINE SOLUTIONS.
a. The Customer agrees that it shall use the Connectivity Services (and that it shall ensure that the End Users use the Connectivity Services) only with Devices (as hereinafter defined) that (a) have been tested, approved and certified by the appropriate Relevant Carrier (as defined hereinafter) for use with the Services, (b) that meet all technical specifications required by such Relevant Carrier or any government authority (including, to the extent applicable, the FCC) and that meet industry standards for compatibility, and (c) that meet all requirements of Telit as may be communicated to the Customer from time to time. For purposes hereof, "Relevant Carrier" shall mean the carrier providing underlying Connectivity Services, as specified in an Appendix to the applicable Order.
b. The Customer shall ensure that no International Mobile Equipment Identity (IMEI) number shall be associated with more than one Device, unless otherwise agreed by Telit in writing.
c. For purposes of these Terms, a "Device" shall mean the wireless device necessary to enable an End User to receive the Services.
d. The Customer shall not, and shall not allow any of its customers to resell services or SIMs for consumer use in non-M2M applications (e.g. tablets, Kindles, Nooks, iPads, laptops, and data sticks) (“Non-Conforming Use”), and any such resale by Customer or Customer’s customers for Non-Conforming Use will constitute a material breach of this Agreement by Customer and Telit may, immediately upon notice, terminate this Agreement or suspend Service to SIMs used for Non-Conforming Uses.
e. In the event that with respect to any Device, the Connectivity Services or any part thereof shall be terminated or shall otherwise expire (a "Terminated Device"), the Customer shall ensure and shall cause its End Users to ensure that the relevant Device does not register or attempt to register on the Network. In the event that the Terminated Device does continue to attempt to register on the Network, (i) Customer will incur and shall pay additional charges and fees incurred by Telit from time to time with an additional handling charge of $5.00 per invoice (or the equivalent amount in Euros) ; and (ii) if Customer fails to prevent Terminated Devices from attempting to register within 30 days after notice from Telit, Telit shall have the right to charge Customer, and Customer shall pay, an additional fee of $25.00 per month (or the equivalent amount in Euros) per each relevant Terminated Device, until the failure is corrected.
a. The Customer specifically agrees that the Connectivity Services may be used by it and the End Users for placing or receiving voice calls only to the extent that such voice services are specifically part of the package provided by Telit ("Voice Services"). Any and all use of the Voice Services shall be subject to the following:
i. The Customer, shall program its systems or its Devices so that each Device may only place or receive a call from a Dispatch Center to or from a single pre-designated number ("hotlining") and so that all other calls are blocked (except 911 – or the equivalent thereof, to the extent relevant, outside of the United States). Telit reserves the right to limit the number of hotlined phone numbers it will support. Telit may impose restrictions on the range of allowed numbers (e.g. to an enumerated list of numbers or to a set number of contiguous numbers in an exchange).
ii. Devices may not include a dialing-capable keypad. For further clarity, no Device should incorporate a functional keypad including the keys 0-9, * and #, capable of directly dialing a free-form telephone number.
iii. No audible ring is permitted on incoming calls, except in a medical event context. A "medical event context" is a short time window (less than fifteen (15) minutes) following a medical event detected by the Device.
iv. Inbound calls must not be answered by the Device except in a medical event context.
v. Customer acknowledges that in the event that a Device is used for Voice Services and such Device does not meet the requirements specified in this Section or elsewhere in these Terms, that Telit may suspend or terminate the Voice Services and other Connectivity Services hereunder.
4. LIMITATIONS OF SERVICE.
a. The Connectivity Services and any SIM Cards provided hereunder may be dependent upon the End User having suitable infrastructure available and on upon the use of an appropriate Device for the utilization of the Connectivity Services, and in the absence of such, some or all of the Connectivity Services may be unavailable or may not function correctly.
b. Telit does not guarantee that unauthorized interception of the Network, the Connectivity Services, or any data and/or traffic transmitted through the Connectivity Services cannot occur, and neither Telit nor the Relevant Carrier will be liable for any breach of security.
c. Customer acknowledges that the Connectivity Services are only available in such area as may be covered by Telit from time to time (the "Coverage Area"). Customer acknowledges that the Services in any specific part of the Coverage Area depend, inter alia, on third party agreements between the Relevant Carriers and roaming partners and that the Coverage Area or the identity of any roaming partner is liable to change at any time. In light of such, notwithstanding any representation by Telit, in writing or otherwise (including as part of any Specific Terms) with respect to the availability of the Connectivity Services in a specific area, Customer acknowledges that the Coverage Area may change without notice and that such representation shall in no event be deemed to constitute any warranty, guarantee, condition or undertaking whatsoever in relation to the coverage, availability and/or quality of the Connectivity Services in a specific territory or area.
d. Customer hereby acknowledges that the accessibility of the Network, the Coverage Area and the quality and availability of the Services may be affected by factors outside of the control of Telit such as (but not limited to) emergency or planned maintenance, physical obstructions, atmospheric conditions and other causes of radio interference and by faults in other telecommunications networks to which the Network is connected, and failure of third party providers and/or roaming partners upon whom Telit is dependent for provision of the Connectivity Services. In connection with any such adverse effect on the Coverage Area and the quality and availability of the Connectivity Services, Telit cannot provide any undertaking that any particular traffic or data can be sent, conveyed or received in the intended manner, or at all, and Telit shall incur no liability to the Customer whatsoever, Notwithstanding such adverse effects to the Services, the Customer shall remain liable for the payment of all Charges.
5. RESPONSIBILITIES VIS A VIS END USERS.
Telit is obligated only to Customer, and not to End Users or to Customer’s customers, none of whom are to be considered third-party beneficiaries of this Agreement. Customer is solely responsible for all risks and expenses incurred with its provision of the Service to Customer’s customers and all End Users. Customer shall ensure that its customers and End Users enter into binding agreements which incorporate these Terms pari passu and which are at least as protective of Telit as these Terms.
6. EUROPEAN ECONOMIC AREA (EEA) USAGE OF SERVICE; PERMANENT ROAMING.
a. To the extent that the Roaming Regulation (531/2012/EC) (the "Roaming Regulation") applies to the Connectivity Services provided hereunder, Customer hereby acknowledges that Telit and its suppliers may not be able to provide such Connectivity Services hereunder, or such Connectivity Services may be disrupted or negatively impacted if decoupling and local break out pursuant to Articles 4 and 5 of the Roaming Regulation are effected by the Customer or an End User hereunder.
b. In the event that any End User chooses an alternative roaming provider other than as provided by Telit as part of the Connectivity Services, then Telit shall have no obligation to perform the Connectivity Services in accordance herewith, and neither Telit nor its suppliers shall be liable for any failure to provide the Services or for any disruption in the provision of the Services.
c. Nothing herein shall be deemed to provide any party with any rights with respect to decoupling and/or local breakout or with respect to any provision of the Roaming Regulation to the extent that such party does not otherwise have such rights under the Roaming Regulation or applicable law.
d. The use of the Connectivity Services for purposes of roaming shall not be used in such a way that may cause the associated Device to be construed as permanently roaming in a network or networks other than the primary network of the underlying Relevant Carrier.
7. COMPLIANCE FOR PS/M DEVICES.
Customer agrees that Telit has no responsibility for, and disclaims all liability for or in connection with, Customer’s or End User's compliance with any regulatory approvals or requirements in connection with its Personal Safety and Medical (“PS/M”) Devices, including, but not limited to, their ability to (i) successfully perform a conformity assessment procedure for such PS/M Device, and/or (ii) affix and maintain a valid "Conformité Européene" (CE) mark (or other equivalent marking of safety standard compliance) to, its PS/M Device.
THE FOLLOWING ADDITIONAL TERMS SHALL APPLY ONLY TO PURCHASE BY THE CUSTOMER OF PLATFORM SERVICES and PRODUCTS SERVICES
1. USE OF SOFTWARE-AS-A-SERVICE
In consideration for payment of all the fees with respect thereto, and subject to the Customer's compliance with all undertakings herein, Telit will provide Customer with software-as-a-service components which it generally provides its customers according to the "Type of Access" ordered by the Customer on an Order (the "SaaS Services"). Customer may use the SaaS Services strictly for the purposes of Customer's own business operations, and only in accordance with any Documentation (as defined below) provided to it, on a personal, non-exclusive, non-transferrable, revocable, non-assignable basis, and subject to any limitations (including with respect to quantity, scope, volume and capacity) set forth in the Order or as otherwise communicated by Telit.
With respect to the SaaS Services only, Telit shall provide the Customer with such Service Level Guarantees as specified in the linked Service Level Agreement ("SLA") (the "Service Level Guarantees"). Customer acknowledges and agrees that performance of the Service Level Guarantees constitute Customer's sole remedy with respect to any failure, downtime, or malfunction of the SaaS Services.
2. GRANT OF LICENSE TO SOFTWARE PROGRAMS
In the event that in addition to the SaaS Services, Customer has ordered additional licenses specified in the Order (an "Additional License"), then in consideration for payment of all of the fees with respect thereto, and subject to the Customer's compliance with all undertakings herein, Telit hereby grants the Customer a personal, non-exclusive, non-transferrable, revocable, non-assignable , limited license to copy, install, run and use the object or executable code form (as applicable) of the software programs provided by Telit with respect to the Additional Licenses (the "Software Programs"), on servers, machines or devices in the Customer's possession or control, strictly for the purpose of Customer's own business operations, only in accordance with any Documentation provided to the Customer, and subject to any limitations set forth in the Order, or otherwise communicated by Telit.
The Software Programs are copyrighted and licensed, not sold, and the SaaS Services are made available for use and access, not sold. No title or ownership is hereby conveyed nor is there any sale of any rights in the Software Programs and the SaaS Services. All rights in the Software Programs and the SaaS Services not expressly granted to the Customer are reserved solely to Telit and/or its licensors.
Telit may, from time to time, make available to Customer, user and technical manuals, help files, and explanatory materials concerning the Software Programs and the SaaS Services (collectively, the "Documentation"). Customer agrees that it shall comply with any and all requirements of the Documentation. Customer may make reasonable copies of the Documentation and distribute such copies internally, strictly for the purpose of facilitating Customer's use of the Software Programs and SaaS Services. In making such copies, Customer shall not modify the Documentation in any way. Customer may not distribute the Documentation or any copies thereof to any third party.
Customer acknowledges that upon termination of the SaaS Services, it shall have no further right to access or use the SaaS Services. Notwithstanding the aforesaid, unless Telit has terminated for breach, at Customer's written request, Telit will use its reasonable efforts to make available to Customer, for an additional sixty (60) days, its Processed Data as existing in the SaaS environment on the date of termination. At the end of such sixty (60) day period, Telit may discontinue the Customer's access to its Processed Data. Customer specifically agrees that in the event of the termination of the SaaS Services hereunder, any and all of Customer's rights and licenses to the Additional Licenses shall terminate contemporaneously therewith. For purposes hereof, “Processed Data” is certain data related to the use of the services by the Customer that is and collected and retained by Telit. Processed Data may include, but is not limited to, metrics, telemetry, traffic data sent from or received by the devices used in the Connectivity Services or Platform Services and Products ("Units"), logs of call sent from or received by the Units, text messages sent from or received by the Units, other logs of the Platform Services and Products, mobile network measurements related to the Units, Unit activity times, Unit location and data stored on the Units.
5. TRIAL PROGRAMS
In the event that prior to ordering any SaaS Services or Additional Licenses, Customer has been provided a trial or evaluation license to the SaaS Services or the Software Programs (a "Trial License"), Customer agrees that upon ordering any SaaS Services or Additional Licenses any such Trial License shall end and any further use thereof by Customer shall be charged at such rates as specified in the Order for the SaaS Services or Additional Licenses.
6. SUPPORT SERVICES; FEEDBACK
For so long as Customer has a license hereunder to the SaaS Services and the Software Programs, Telit shall use its reasonable commercial efforts to provide the support services specified in the linked Support Services Agreement (the "Support Services"). Notwithstanding the aforesaid, in no event shall Telit be liable for any failure to supply the Support Services, for any liability resulting from the results of the Support Services, or for any claim with respect to the quality of the Support Services.
7. NO REVERSE ENGINEERING; OTHER RESTRICTIONS
(a) Unless applicable law otherwise requires to so permit, the Customer may not itself, or allow third parties to modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Software Programs or the SaaS Services, or otherwise attempt to discover its underlying code, structure, implementation or algorithms.
(b) The Customer may not, and may not allow third parties to use the Software Programs or the SaaS Services or the Processed Data in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Software Programs or the SaaS Services.
(c) The Customer may not and may not allow third parties to make the Software Programs or SaaS Services (other than any Processed Data that the Services provide the Customer access to) available in any manner to any third party for use in the third party's business operations.
(d) The Customer shall take all reasonable efforts to prevent unauthorized third parties from accessing or using the Software Programs and SaaS Services.
(e) Except as expressly provided herein, no part of the Software Programs or SaaS Services (other than Processed Data that the Services provide the Customer access to) may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means.
(f) Unless applicable law otherwise requires to permit, the Customer may not perform or attempt to perform, or allow any third party to perform or attempt to perform any of the following in connection with the Software Programs and SaaS Services: ( i ) breach the security of the Software Programs and SaaS Services, identify, probe or scan any security vulnerabilities in the Software Programs and SaaS Services, access data not intended for the Customer, or access a connected device which the Customer is not authorized to access; (ii) interfere with, circumvent, manipulate, overload, impair or disrupt the operation, or the functionality of the Software Programs and SaaS Services; (iii) work around or circumvent any technical limitations in the Software Programs and SaaS Services; (iv) use any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Software Programs and SaaS Services; (v) use the Software Programs and SaaS Services in a scope or manner that may adversely impact their availability, stability or responsiveness; (vi) transmit any virus, worm, Trojan horse or other malicious or harmful code; (vii) remove or modify any Software Program markings or any notice in the Software Programs and SaaS Services of Telit's or its licensors' proprietary rights; (viii) perform or disclose any benchmark or performance tests of the Software Programs or SaaS Services, without Telit's prior written consent; (ix) perform or disclose any of the following security testing of the Software Programs or SaaS Services without Telit's prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; ( x ) use robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the SaaS Services (the foregoing shall not apply to acts of scraping, harvesting, collecting or compiling content through the SaaS's official, documented API, to the extent that the API's documented functionalities and purposes are consistent with such activities).
(g) Customer must obtain direct written approval from Telit prior to performing load/scalability and penetration testing on Telit’s portal. Without written approval from Telit, all such testing is strictly prohibited.
8. THIRD PARTY AND OPEN SOURCE SOFTWARE
The SaaS Services and Software Programs may contain or may be provided in conjunction with software programs, materials and other components owned and licensed by third parties ("Third Party Software"), including some or all of those detailed in the linked Third Party Software which may be updated from time to time. To the extent so indicated by a license governing the Third Party Software in question (a "Third Party License") file, the Third Party Software corresponding to such Third Party License, is licensed directly to Customer by its respective licensors, not sublicensed to Customer by Telit. To the extent so indicated by the Third Party License, its corresponding Third Party Software is subject to such Third Party License, not to the terms hereof. If, and to the extent, a Third Party License requires that these Terms effectively provide, impose, or incorporate by reference, certain disclaimers, permissions, provisions, prohibitions, restrictions or other terms then such shall be deemed to be imposed, or incorporated herein by reference as required, and shall supersede any conflicting provision hereof, solely with respect to the corresponding Third Party Software which is governed by such Third Party License.
In the event that Customer or another third party, modifies, replaces or substitutes any Third Party Software, Telit and its resellers, distributors and representatives, are irrevocably and fully released from any and all liabilities, warranties, performance, and maintenance and support obligations, with respect to the SaaS Services and the Software Programs.
If, and to the extent, a Third Party License requires that the source code of its corresponding Third Party Software be made available to Customer, and such source code was not delivered to Customer, then Telit hereby extends a written offer, valid for the period prescribed in such Third Party License, to obtain a copy of the source code of the corresponding Third Party Software, from Telit. To take up this offer, Customer should contact Telit at email@example.com.
Without derogating from any other provisions in these Terms which protect Telit or limit its liability, the following terms and conditions apply with respect to all Third Party Software: (a) all Third Party Software are provided on an "AS IS" basis; (b) TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, TELIT AND ITS THIRD PARTY SUPPLIERS DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (c) TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, TELIT AND ITS THIRD PARTY SUPPLIERS WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTIES FOR ANY CLAIMS FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WITH RESPECT TO THE THIRD PARTY SOFTWARE.
THE FOLLOWING ADDITIONAL TERMS SHALL APPLY ONLY TO PURCHASE BY THE CUSTOMER OF PROFESSIONAL SERVICES
Customer acknowledges that to the extent that it orders Professional Services, such Professional Services shall be subject to such additional terms and conditions as agreed in writing between Telit and Customer and/or as may be attached as an Appendix to the Order. In the event of any conflict between these Terms and such additional terms, such additional terms shall govern.
Last Updated – October 22, 2020