TERMS & CONDITIONS – US

                                                                                               Effective as of April 30, 2019

Welcome to Connecthings! Connecthings is the augmented location company, a leader in location analytics and contextualized mobile engagement. The services outlined herein are provided by Connecthings Corporation, a Delaware corporation, and its parents, subsidiaries, and affiliates (collectively “Connecthings”).

These Terms and Conditions (“Terms”) cover your use and access to the products and services provided by Connecthings. In addition to these Terms, our Privacy Policy, available at
www.connecthings.com/privacy-policy explains how we collect and use your and your users’ information. The terms of the Privacy Policy are hereby incorporated by reference.

1. Purpose

The purpose of these Terms is to set forth the conditions under which Customers may use the Services. These Terms along with the Privacy Policy, and Order Form set forth the entire understanding of the parties with respect to use of the Services and supersede all prior or contemporaneous agreements, understandings, representations, and warranties with respect to use of the Services.

These Terms may be amended by Connecthings from time to time in accordance with the terms below. Customer should review the Terms prior to using the Services. By using the Services, Customer acknowledges that the Services fulfill its requirements and needs and that it has received all necessary advice and information from Connecthings when purchasing the Services.

2. Types of Customers to Whom These Terms Apply

These Terms will apply to Customers that receive a license to use the Services through one (or multiple) mobile application(s) they own and/or develop.

3. Definitions

  • API” means application program interface, which is a set of routines, protocols, and tools for building software applications.
  •  “Customer” means Connecthings customers who receive a license to use the Services through one (or multiple) mobile application(s) they own and/or develop.
  • “Order Form” means any document setting forth the commercial conditions and scope of the contract as agreed between the two parties.
  • “Customer Content” means all works and materials including Customer Data uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer’s account; and otherwise provided by the Customer to Connecthings in connection with this Agreement.
  • Customer Data” means any electronic data and information uploaded by or for the Customer via the Services or collected and processed by or for the Customer using the Services. For the avoidance of doubt, this includes all information of the Customer’s customers or users of the Customer’s mobile app which relates to an identified or identifiable natural person or is protected as personal data or personally identifiable information under GDPR or other applicable data protection laws.
  • Force Majeure Event” means any event which prevents a party from performing its obligations under this Agreement, or delays the performance of such obligations due to causes beyond that party’s reasonable control, including acts of God, war, riot, terrorism, embargoes, union disputes and strikes, acts of civil or military authorities, fire, floods, earthquakes or fuel crises, provided that such party gives prompt written notice thereof to the other party and uses its diligent efforts to resume performance.
  • 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).
  •  “Platform” means a location intelligence and user engagement platform composed of different elements of software and services (e.g.  algorithms, code etc.). It allows collecting, storing and analyzing data from mobile devices and other data sources.
  • “SDK” means “Software Development Kit” and is a set of software development tools used to provide the Services. The SDK is made available to the Customer for installation in its mobile application(s).
  • Services” means all services, products, and components thereof offered by Connecthings.

4. Connecthings’ Obligations

Connecthings shall use good faith effort to deliver the Services in accordance with the service levels set forth below.

License

Provided Customer has not materially breached these Terms, Connecthings grants Customer  a non-transferable (except as expressly set forth herein), non-exclusive, worldwide, royalty free, and revocable license to Customers to use the Services, subject to the restrictions set forth in the Acceptable Use Policy, below, as well as any other restrictions set forth in these Terms and for a duration period, as set forth in the Order From.

Updates to the Services

Connecthings reserves the right, in its sole discretion, to manage, update, change, modify, suspend, discontinue or upgrade part of or all of the Services at any time, to ensure optimum performance for all Customers, or for any other purpose.

Connecthings shall, to the extent possible, inform the Customer within a reasonable timeframe about the nature and the duration any modification or upgrade, update, or other change made to the Services hereunder.

5. Customer’s Rights and Obligations.

Acceptance of Terms

By using the Services (as such term is defined herein), The Customer agrees to be bound by these Terms and our Privacy Policy. If the Customer is using the Services for an organization, or any corporate or government entity, you are agreeing to these Terms on behalf of that organization or entity.

Username and Password

The Customer is responsible for managing and safeguarding its platform account credentials (login and password information). Connecthings shall not be liable for any illicit or fraudulent use of the Customer’s account.

Mobile SDK Integration and API

The Customer agrees to use and integrate the Mobile SDK and/or API as specified in the Technical Guidelines that are provided by Connecthings with the Mobile SDK for mobile application and with the API.

Customer Content Delivery

Customer Content shall be delivered on their mobile application via the Platform. For the avoidance of doubt, Connecthings makes no guarantee to Customers that Customer Content shall appear at all times, as the appearance of   Customer Content via the Services may be affected by numerous factors, some of which are not directly controlled by Connecthings.

Any and all disseminated Customer Content via the Services shall comply with the applicable restrictions on Customer Content as set forth herein (which shall include, for the avoidance of doubt, the Acceptable Use Policy).

6. Customer Data

  1. If Connecthings processes any Customer Data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and Connecthings shall be a data processor and in any such case:
  1. The Customer shall own any and all Customer Data and shall be solely responsible for the accuracy and quality of any and all Customer Data and for establishing all terms and conditions applicable to the Customer’s own customers and/or mobile app users.The Customer shall ensure that the Customer is entitled to transfer the Customer Data to Connecthings so that Connecthings may lawfully use, process and transfer the Customer Data in accordance with this Agreement on the Customer’s behalf.The Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by GDPR and all other applicable data protection legislation.Connecthings shall process the Customer Data  only in accordance with the terms of this Agreement and any lawful documented instructions reasonably given by the Customer from time to time including with regard to transfers of Customer Data  to a third country or an international organization, unless the laws of the state to which Connecthings is subject require Connecthings to process the data; in such a case, Connecthings shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest. Each party shall take appropriate technical and organizational measures in such a manner that processing will meet the requirements of GDPR and ensure the protection of the rights of the Customer’s customers or users.Connecthings shall not engage another processor or sub-processor to process Customer Data without prior specific or general written authorization of the Customer. In the case of general written authorization, Connecthings shall inform the Customer of any intended changes concerning the addition or replacement of other processors, thereby giving the Customer the opportunity to object to such changes.Connecthings and Customer shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, in accordance with Article 32 of GDPR.Connecthings shall ensure that persons authorized to process the Customer Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.At the choice of the Customer, Connecthings shall delete or return all the Customer Data to the Customer after the end of the provision of Services relating to processing and delete all existing copies unless laws of the European Union and other applicable requires storage of the Customer Data. Connecthings shall make available to the Customer all information necessary to demonstrate compliance with the obligations laid down for data processors under GDPR and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer. Connecthings shall immediately inform the Customer if, in its opinion, an instruction infringes GDPR or other European Union or state data protection provisions.
  • The Customer hereby grants Connecthings a non-exclusive, royalty-free, non- transferable worldwide license during the term to access and use Customer Data solely for the purpose of providing the Service and any applicable professional services in accordance with this Agreement. 
  • The Customer grants to Connecthings a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, distribute, create derivative works of and otherwise exploit anonymous usage data derived from the Customer’s, and Platform Users’ use of the Service (Usage Data) as aggregated with usage data from Connecthings’ other customers for its own business purposes such as support, operational planning, product innovation and sales and marketing of Connecthings’ services. For purposes of clarification, such Usage Data may not include any data that could reasonably identify Customer or any particular customer or end-user of Customer and shall not be deemed Customer Data.
  • Connecthings shall have the right (but not the obligation) in its sole discretion to refuse or remove any Customer Data that violates GDPR with regard to sensitive personal data or other data at Connecthings’ discretion.

7. Customer Content

  1. The Customer grants to Connecthings during the term of this Agreement, a non-exclusive license to store, copy and otherwise use the Customer Content on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement.
  • Subject to Section 7 (a), all intellectual property rights in the Customer Content will remain, as between the parties, the property of the Customer.
  • The Customer warrants and represents to Connecthings that the Customer Content, and their use by Connecthings in accordance with the terms of this Agreement, will not:
  1. Breach any laws, statutes, regulations or legally-binding codes;Infringe any person’s intellectual property rights or other legal rights; orGive rise to any cause of action against Connecthings or the Customer or any third party, in each case in any jurisdiction and under any applicable law.
  • Where Connecthings reasonably suspects that there has been a breach by the Customer of the provisions of this Section 7, Connecthings may:
  1. Delete or amend the relevant Customer Content; and/or,Suspend any or all of the Services and/or the Customer’s access to the Platform while it investigates the matter.
  • Any breach by the Customer of this section will be deemed to be a material breach of this Agreement.

8. Modifications to the Services

Customer shall not modify the Services (whether by provision of Customer Content via the Services or otherwise), except as expressly permitted herein.  Customer shall be responsible for the results of any authorized or unauthorized modification of the Services, including modifications created by Customer’s broadcast or other dissemination of Customer Content through the Platform. Connecthings shall not be liable for any failure of the Services resulting from Customer’s unauthorized modification or use of such Services

9. Acceptable Use Policy

Customer shall use and access the Services responsibly. Accordingly, Customer’s license hereunder shall be conditioned upon Customer not doing, attempting to do, or encouraging any third party to attempt to do any of the following when accessing and using the Services:

  1. Use the Services for any purpose which violates applicable laws.
  • Reverse engineer, decompile, modify, alter, tamper with, disassemble copy, translate, convert, apply any process to, or create any modifications, enhancements, or derivative work of any component of the Platform or the Services.
  • Services.
  • Probe, monitor, or otherwise test for vulnerabilities in any network used to provide the Services.
  • Introduce to the Services or any instrument thereof, any material, tangible or intangible, that contains software, viruses, or other computer codes, files or programs that are designed to disrupt, damage, limit, or interfere with the Services or any component thereof. For the avoidance of doubt, all activity that may be categorized as a precursor to any violation hereof (i.e. port scan, stealth scan, or other information gathering activity) shall also be prohibited.
  • Customer is prohibited from accessing illegally or without authorization computers, accounts or networks belonging to Connecthings or to any other party. Any activity that might be used as a precursor to an attempted system penetration (i.e. port scan, stealth scan, or other information gathering activity) is also prohibited.
  • Breach or otherwise circumvent any security measures put in place by Connecthings.
  • Use manual or automated software, devices, or other processes to “crawl” or “spider” the site or any features of the Services.
  1. Modify, integrate, or incorporate any part of the Services into a product manufactured or sold by Customer, except with express written authorization of Connecthings; provided however, that the delivery of Customer Content by Customer using the Services shall not constitute a violation hereof.
  • Distribute, disclose, publish, assign, share, lend, or otherwise allow use of the Services by any third party, except as expressly permitted by these Terms.
  • Transfer, rent, assign, sublicense, or allow the use of the Services.
  • Disseminate Customer Content which:
  1. is defamatory, obscene, vulgar, pornographic, sexually explicit, abusive, or otherwise illegal;
    1. is intended to threaten or abuse a particular person or class of persons;
    1. Discriminates on the basis of, or is or may be offensive to persons of a particular race, religion, nationality, gender (including sexism), sexual preference, age, region, disability, etc.; or
    1. Constitutes hate speech.

Violations of Acceptable Use Policy

Connecthings reserves the right to monitor the Services for violations of the Acceptable Use Policy and to remove, block, or otherwise restrict the dissemination of Customer Content and Customer Data  which Connecthings, in its sole discretion, deems to violate the Acceptable Use Policy. Connecthings reserves the right to suspend or terminate the accounts of Customers that repeatedly violate the Acceptable Use Policy.

Violations of French Intellectual Property Code and Divertive of the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society (2001/29/EC)

Connecthings takes copyright infringement very seriously. Accordingly, Connecthings will remove and prevent from further dissemination any Customer Content that is in breach of copyrights or any other intellectual property tittle.

10. Ownership and Intellectual Property

Ownership of Services, IP, and Data

The Services, including but not limited to the Platform, API, SDK and all documents, data, know-how, methodologies, software, and other materials developed or acquired by Connecthings for performance of the Services are the sole and exclusive property of Connecthings, and are protected by copyright, trademark, design and models, trade secret, patent, and other U.S. and foreign laws. These terms do not grant Customer any right, title, and interest in and to the Services (except to the extent Customer is granted a license hereunder), or to any trademarks, logos, or other brand features which are part of the Services.

Ownership of Derivative Works

Customer accepts and agrees that any modifications, enhancements, or derivative works of the Services or any part thereof shall be the sole and exclusive property of Connecthings (the “Derivatives”).  Customer hereby irrevocably assigns to Connecthings all right, title, and interest, throughout the universe, in and to the Derivatives , including, without limitation, all intellectual property rights therein that may inure to Customer or that Customer is deemed to obtain pursuant to these Terms.

Ownership of Feedback and Suggestions

It is expressly understood, acknowledged and agreed that Customer may, but is not obliged to, provide Connecthings with suggestions, comments and feedback regarding its products and services, including, but not limited to, usability, bug reports, new services, new business model and test results (collectively, “Feedback”). The parties agree that the Feedback shall be considered the property of, and may be used by, Connecthings without any obligation to Customer.  Customer waives any right, title, and interest in and to such Feedback.

11. Purchasing the Services.

In the event of a conflict between the Order Form and these Terms, the Order Form shall prevail

Payment Terms

The payment terms are set out in the Order Form and define the duration of the commercial relationship and associated billing that has been agreed between the two parties.

Late payments are subjected to late payment penalties fees calculated on the basis of the outstanding including taxes, multiplied by a rate corresponding to the rate applied by the European Central Bank to its most refinancing operation plus ten percent (10%).

Any payment delay of all or part of an amount, within the framework of this Agreement, at its due term, shall automatically entail, without prejudice to Connecthings’ other rights and with a 3 days prior formal notice:

  • Immediate suspension of current Services until complete payment by the Client of all amounts due,
  • Invoicing of a late payment interest, for Connecthings’ benefit, at the rate of 3 times (three times) the legal interest rate, calculated on the total of all amounts due by the Client.

Connecthings reserves the right to collect taxes when Connecthings, in its sole discretion, believe that applicable laws require it to do so.

12. Term and Termination

The term of the Services shall be as set forth in the Order Form. If the term of the Services is not set forth in Order Form or if such Order Form is not executed, the term of the Services shall be one (1) year.

Either party may terminate the Services (i) if the other party materially breaches any of its duties or obligations hereunder and such breach is not cured within ninety (90) days following receipt by the breaching party of notice thereof; or (ii) upon the occurrence of a Force Majeure Event which prevents performance by a party for no less than ninety (90) days.

Either party may terminate the Services by providing thirty (30) days written notice prior to the end of the term or any renewal term period, as the case may be. Certain actions of Customer may give rise to irreparable harm and allow Connecthings to terminate the Services immediately and without notice. Specifically, Connecthings may immediately terminate the Services for (i) non-payment; (ii) violations of any use restrictions set forth herein, including, but not limited to, the Acceptable Use Policy; and (iii) any other Customer actions which Connecthings, in its sole discretion, believes pose an immediate threat to the Services or the Connecthings platform, servers, or to Connecthings, including its reputation, integrity, and security.

Effect of Termination

Upon termination, Customer’s license to use the Services hereunder shall immediately cease and be of no further effect.

In the event that the Customer terminates Services prior to the end of the term, it is expressly understood, acknowledged and agreed that Connecthings shall not reimburse any received payment.

Refunds

Connecthings shall not issue refunds to Customers for sums already paid or due to Connecthings. Notwithstanding the foregoing, Connecthings reserves the right to issue refunds, provided that such refunds shall be made in the sole discretion of Connecthings

13. Service Levels and Support.

Connecthings uses virtualized and redundant physical servers and uses commercially reasonable efforts to ensure 99.8% Services availability per month. Connecthings shall use commercially reasonable efforts to promptly reply to any Customer service request. Every system failure has a 4-hour repair time. The Customer agrees to notify Connecthings in writing in the event of a SERVICE interruption within ten (10) business days of the event in order to review the event and decide on any action. The Customer waives the right to dispute any charges for the Service interruption after the expiration of the ten (10) business day period.

14. Warranties.

Customer’s Warranties

  1. The Services allow Customer to deliver Customer Content to their mobile application users via the Services.  Customer represents and warrants that such Customer Content (which may be accessible to the public, including any images, pictures, logos and names) shall not infringe on the intellectual property rights of others. Additionally, Customer shall comply with the terms of the Acceptable Use Policy.
  • The Customer represents and warrants that the Customer Content contains nothing that is defamatory or indecent.
  • The Customer represents and warrants that it is not aware of any circumstances likely to give rise to breach of any of the data protection rights of its customers in providing the Customer Content to Connecthings for the purposes of this Agreement.

Disclaimer of Warranties

CONNECTHINGS PROVIDES THE SERVICES AND ALL FEATURES AND COMPONENTS THEREOF ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONNNECTHINGS MAKES NO WARRANTIES, EXPRESS OR IMPLED, THAT THE Services OR ANY COMPONENTS THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS. SUCH DISCLAIMER SHALL INCLUDE WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION THAT THE SERVICES WILL PERFORM TO ANY PARTICULAR STANDARD OR BE FREE FROM BUGS, ERRORS OR REMAIN UNAFFECTED BY COMPUTER VIRUSES OR OTHER SIMILAR FEATURES AFFECTING PERFORMANCE OF THE Services. TO THE FULLEST EXTENT PERMITTED BY LAW, AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, CONNECTHINGS MAKES NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SERVICES AND ANY OTHER SUBJECT MATTER OF THESE TERMS. BOTH CUSTOMER AND CONNECTHINGS HEREBY DISCLAIM WARRANTY OR OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

Money Damages Sufficient

The Customer expressly agrees that money damages are sufficient compensation for any harm suffered in accordance with these Terms.  Accordingly, the Customer expressly disclaims any right to non-monetary relief, including, but not limited to, equitable or injunctive relief, in connection with any dispute arising from these Terms.  The foregoing shall not in any way limit any rights or remedies, including, but not limited to, equitable or injunctive relief, which Connecthings may have in connection with any dispute arising under these Terms.

15. Indemnification.

Customer shall indemnify, defend, and hold harmless Connecthings from any and all claims, losses, damages, expenses and costs (including all reasonably incurred legal fees) arising out of or in connection with: (i) the Customer’s  (or any third party authorized by Customer) misuse of the Services; (ii) fault, negligence, or failure of the Customer (or any third party authorized by Customer) to perform the Customer’s responsibilities hereunder; (iii) claims against the Customer by any other party; (iv) Servicesprocessing of the Customer Content under this Agreement or (v) Customer’s uncured material breach of these Terms.

16. Limitation of Liability.

CONNECTHINGS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH ANY USE OF THE SERVICES OR OTHERWISE, INCLUDING WITHOUT LIMITATION LOST PROFITS OR COST TO PROCURE SIMILAR GOODS OR SERVICES. CONNECTHINGS SHALL NOT BE LIABLE TO ANY PARTY FOR FAILURE TO FULFIL ITS OBLIGATIONS HEREUNDER IF SUCH FAILURE IS IN ANY WAY DUE TO: (I) THE CUSTOMER’S (OR ANY THIRD PARTY AUTHORIZED BY CUSTOMER) MISUSE OF THE SERVICES, OR ANY COMPONENT THEREOF (II) THE CUSTOMER’S (OR ANY THIRD PARTY AUTHORIZED BY CUSTOMER) UNAUTHORIZED MODIFICATION OF IT’S THE SERVICES OR ANY COMPONENTS THEREOF; OR (III) ACTS BEYOND CONNECTHINGS’ REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, FORCE MAJEURE EVENT.

17. Relief of Obligation to Pay.

Customer acknowledges that nothing herein (except for a Force Majeure Event resulting in termination of the Services for a reason other than Customer’s non-payment, or an uncured material breach of these Terms  by Connecthings which results in termination of the Services) shall relieve the Customer for its obligation to pay for the Services executed by Connecthings.

18. Resolving Disputes

Initial Dispute Resolution

Connecthings aims to address all Customer concerns without the need for formal legal proceedings.  Before filing a claim against Connecthings, Customer agrees to attempt to resolve the dispute informally by contacting Connecthings at contact@connecthings.com. Connecthings will try to resolve the dispute informally by contacting Customer via email. If a dispute is not resolved within ninety (90) days of submission, either party may begin formal legal action, subject to these Terms.

Mandatory Arbitration

Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in New York County, New York, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. 

Choice of Law.

The validity, performance, construction, regulation and interpretation of these Terms shall be governed under the laws of the State of New York. The parties hereby disclaim from application to these Terms of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Information learned or exchanged related to or arising out of the dispute shall be treated as confidential information by both Parties.

19. Miscellaneous.

Publicity

Each Party hereby grants the other Party  the right to disclose that it is a partner of the other PARTY and the right to display the other Party’s  logo on its materials including, but not limited to, web site and literature; provided that either party may revoke the use of such intellectual property by providing written notice of such a decision at any time.

Waiver, Severability and Assignment

Any failure on the part of Connecthings to enforce a provision under these Terms does not constitute a waiver of rights hereunder, including the right to take action at a later date. If any provision of these Terms is found unenforceable by any court or administrative body of competent jurisdiction, such provision shall be excluded from these Terms and the balance of this document shall be interpreted and enforced as if such provision were so excluded and shall be enforceable to the fullest extent permitted by law. Except as expressly permitted hereunder, Customer may not assign its rights under these Terms, and any such attempt shall be null and void. Connecthings may assign any of its rights to its affiliates, subsidiaries, or its successor interest pursuant to any business associated with the Services.

Notices

By using the Services, Customer consents to Connecthings providing it with email notices for any and all notices required under these Terms. Such notices shall be deemed received once they are sent. If Customer no longer consents to receive notification by email, it must stop using the Services.

Relationship of the Parties

Connecthings is an independent contractor. There is no relationship of agency, partnership, joint venture, employment, or franchise between Customer and Connecthings.  Customer and its agents shall not have the authority to bind Connecthings in any way, or to incur any obligation on its behalf, except those obligations set forth in these Terms. These terms are for the benefit of the parties and are not intended to confer upon any person or entity any rights or remedies hereunder. Nothing in these Terms shall be deemed to create any agency or partnership.