IoT Projects MARKETPLACE
AGREEMENT
DATED: January 2017
THANK YOU FOR CHOOSING IoT Projects MARKETPLACE! Please read the following agreement carefully.
This IoT Projects Marketplace Agreement (“Agreement”) is a contract between you, corporation, or other legal entity (“you”) and Smart Digital Machine, VAT: ESB87438560 Foresta, 1, Spain, (“SDM,” “we,” “us” or “our”). This Agreement applies to your access and use of our “IoT Projects Marketplace”, including any services, data, applications, software, sites, information, materials, content and updates made available to you as part of such marketplace (“Marketplace Services”).
By checking the box, below, you acknowledge that you have read this Agreement and agree to its terms, including the electronic delivery of notices and disclosures in connection with the Marketplace Services, that you are authorized to enter into this Agreement, and that your use of the Marketplace Services is for COMMERCIAL PURPOSES ONLY. If you do not or are unable to accept these terms or do not want to enter into this Agreement with us, please close this web page and exit this site.
1. HOW YOU MAY USE THE MARKETPLACE SERVICE.
a. GENERAL.
The Marketplace Service is an online service that enables you to identify and sign up for or purchase a subscription to data and applications made available by Manufacturers via the Marketplace Service (such manufacturers data or applications collectively, “Manufacturer Content”). Manufacturer Content does not include applications or data listed on the Marketplace Service as “Marketplace”. The Manufacturer Content is listed as a convenience for your information. The provisioning and billing for Manufacturer content will vary depending on the manufacturer’s practices and terms. Any terms, including payment, billing, privacy, and licensing are between you and the third party manufacturer of such Manufacturer content. Without limiting the foregoing, no right or license to any intellectual property is granted with respect to such Manufacturer content, whether by implication, estoppel or otherwise, unless we are the manufacturer of the applicable Manufacturer Content.
You may access and use the Marketplace Service only through the portal site we designate for the Marketplace Service and only in accordance with the terms of this Agreement and the policies and procedures we designate for use of the Marketplace Service. Certain features and content, identified via the Marketplace Service may be made available to you through websites, online services, or applications operated and/or licensed by third parties. Your dealings with any of these third parties are solely between you and the applicable third party and may be governed by other terms of use or agreements that apply to such third party web sites, online services, or applications, (collectively, “Third Party Offerings”).You acknowledge and agree that the Third Party Offerings are not owned, created, licensed, sponsored or endorsed by us. SDM does not monitor, control or assume any liability associated with Third Party Offerings and is not responsible for the quality, accuracy and/or nature of Third Party Offerings or any of its components.
b. CONTENT.
- Your right to use Manufacturer Content is governed by separate terms of use associated with the respective data or application provided by the Manufacturer (“Manufacturer Terms of Use”). The Manufacturer Terms of Use is a binding agreement between you and the manufacturer; we are not a party to and are not bound by the Manufacturer Terms of Use, nor does it have any impact on your agreement with us or any of the terms of this Agreement (unless we are the manufacturer of the applicable Manufacturer Content). For clarity, your use of the Marketplace Service is not conditioned on acceptance of Manufacturer Terms of Use. You may reject or decline such Manufacturer Terms of Use and continue to use the Marketplace Service as authorized in this Agreement.
- Manufacturer content is not a Marketplace service offering and is only listed on our Marketplace Service web pages as a convenience for you. All transactions and information exchange regarding Manufacturer content is entirely between you and the Manufacturer of that content.
- You understand that, by using the Marketplace Service, you may encounter information and offerings that include content that you deem offensive, outdated, inaccurate or otherwise objectionable. Access to and use of content made available through the Marketplace Service is at your own risk. SDM (defined below) shall not be liable for your access to or use of any Third Party Offerings, including without limitation Manufacturer Content.
- SDM’s sole obligation and your exclusive remedy for any claims of copyright infringement is takedown and removal of the infringing content from the Marketplace Service.
- SDM organizes and displays Manufacturer Content in various content categories within the Marketplace Service. Categorization is provided for your convenience only. SDM makes no representation or warranty that Manufacturer Content will be placed in all relevant content categories or that each listing, description or display of such content, including datasets or applications, is accurate, complete or up to date.
- If you are interested in making application(s) and/or data available on the Marketplace Service, you may use the Marketplace Service to submit application(s) and/or data to SDM. Your submission of Manufacturer Content is subject to the IoT Projects Marketplace Listing Agreement. SDM is not under any obligation to accept any application(s) or data that you submit. If SDM accepts applications(s) and/or data that you submit, you must accept the IoT Projects Marketplace Listing Agreement, prior to SDM making such application(s) and/or data available on the Marketplace Service. If SDM does not accept your applications(s) or data, SDM is not under any obligation to return to you anything that you submitted. You may only use the Marketplace Portal to submit application(s) and/or data to SDM.
2. HOW YOU MAY NOT USE THE MARKETPLACE SERVICE.
a. You may not interfere or attempt to interfere in any manner with the functionality or proper performance of the Marketplace Service or any of its associated technologies and services, including the availability or accessibility of Third Party Offerings.
b. You may not access or use the Marketplace Service for any unlawful or deceptive purpose or in any way that is illegal or promotes illegal activities. Without limitation, you may not access or use the Marketplace Service in any manner that:
- might be discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age,
- is defamatory, offensive, malicious or harmful to any person or entity,
- would violate local, state, European or other applicable consumer privacy regulations, or
- would compile or use any information obtained through the Marketplace Service for the purpose of spamming, unsolicited sales or any advertising, marketing or other activities.
c. You may not use the Marketplace Service (or any component thereof) to build a competitive service or to otherwise copy the design, functionality and/or user interfaces within the Marketplace Service. Further, you may not (directly or indirectly) offer or provide the Marketplace Service as a service to third parties. You are not permitted to sell, assign, lease, rent, transfer, broadcast, act as a service bureau, distribute or grant rights in and to the Marketplace Service to any third party. You are also prohibited from 'framing', 'mirroring’, linking to, or incorporating the Marketplace Service or any of its components within your own online environment.
d. You may not remove, obscure, or alter any notice of any trademarks, service marks, service or trade names, logos, and other proprietary designations of SDM, its affiliates or its suppliers.
3. MARKETPLACE SERVICE ACCOUNT.
a. ACCOUNT REGISTRATION. To obtain Manufacturer Content via the Marketplace Service, you must agree to this Agreement and create a Marketplace Service account (“Your Account”). Your Account user ID and password, along with any assigned keys or other credentials provided to you must be treated as confidential. SDM will not be liable for any loss resulting from the unauthorized use of your Account password or any assigned access keys or credentials.
b. ACCOUNT USE. You are responsible for all activity that takes place with Your Account, including all use by your employees or other authorized agents, who must comply with all of the terms of this Agreement. You may not access anyone else’s account at any time without the express permission of the account holder.
4. SUPPORT SERVICES; SECURITY; REMOVAL OF DATA.
a. Third Party Offerings. SDM is not responsible for providing technical support, development assistance, customer service or any other services to you in connection with your use of any Third Party Offerings.
b. Marketplace Service.
c. Service Levels. The Marketplace Service may be inaccessible due to scheduled and unscheduled reasons, including maintenance updates, power outages, system failures, extended downtime and other interruptions. During such periods, you may be unable to access or use all of, or a portion of, the Marketplace Service. In the event of an outage or interruptions that SDM determines may cause risk to the Marketplace Service, SDM may determine in its sole discretion to suspend the Marketplace Service. You acknowledge and agree that your ability to access the Marketplace Service, Your Account, and Manufacturer Content may be suspended, delayed or interrupted for any reason, including scheduled and unscheduled maintenance, power outages, system failures and other interruptions.
d. Security. We use a variety of security technologies and procedures to help protect unauthorized access to or use of the Marketplace Services; however, we cannot guarantee that we will be successful at doing so. Accordingly, without limitation to any other provisions of this Agreement, you acknowledge that you bear sole responsibility for adequate security, protection and backup of your data, content, software programs or services you use in connection with your access to or use of the Marketplace Services. We strongly encourage you, where available and appropriate, to take measures to protect your data, content, software applications or services, including without limitation using encryption technology to protect from unauthorized access, and to routinely archive as appropriate. In using the Marketplace Service, you agree to promptly notify us if you learn of a security breach related to the Marketplace Service.
6. YOU ARE SOLELY RESPONSIBLE FOR YOUR ACCOUNT.
You are responsible for all activity that takes place with Your Account, and any associated accounts, to the maximum extent permissible under applicable law. Without limitation, it is your obligation to: (i) prevent corruption, deletion, destruction or loss of any content in Your Account; (ii) protect your Account passwords and any assigned keys or certificates; and (iii) ensure your Applications and any software that you use or run with the Marketplace Service is current with the latest security patches or updates.
7. PRIVACY PRACTICES.
By agreeing to the terms of this Agreement, you also consent to the collection, use and disclosure of your personal information outlined in this section. We may collect certain data about your use of the Marketplace Service. In particular, we may access or disclose information about you, including the content of your communications, in order to comply with the law or respond to lawful requests or legal process, or as otherwise disclosed in our Privacy Statement, or as you may otherwise authorize. When you purchase, subscribe to, or use Manufacturer Content, some personal information, including your contact information will be sent to the respective Manufacturers to help them prevent fraud, provide you with customer support, perform statistical analysis. Marketplace Manufacturers are prohibited from using the information for other purposes without your consent. Except where otherwise specified in the Marketplace Service, information that is collected by or sent to SDM may be stored and processed in Europe or any other country in which SDM or its affiliates, subsidiaries or service providers maintain facilities. You consent to any such transfer of information outside of your country. SDM abides by the Safe Harbor framework as set forth by the European Union regarding the collection, use and retention of data from the European Union, the European Economic Area and Switzerland. If you collect, store, or otherwise process personal information using the Marketplace Service, you must comply with all applicable privacy and data protection laws.
8. UPDATES TO AGREEMENT TERMS. We may revise, update, modify or replace this Agreement at any time, with or without prior notice to you. If you do not agree with any modifications or additional terms in a subsequent Agreement, you may reject such modifications or terms by ceasing all future use of the Marketplace Service and cancelling Your Account.
9. NO WARRANTY.
SDM does not guarantee the Marketplace Service or the accuracy, quality, quantity or timeliness of content or information included in or provided in connection with the Marketplace Service, including without limitation Third Party Offerings. SDM and its suppliers, licensors, service providers, vendors, resellers and affiliates (collectively, the "IoT Projects Parties") give no warranties, guarantees or conditions of purchase for the Marketplace Service, including any Third Party Offerings provided in connection with the Marketplace Service. For purposes of clarification, this provision does not change any warranties, guarantees or conditions of purchase made by providers or Manufacturers of Third Party Offerings to you. You may have additional consumer rights under your local laws that this Agreement cannot change; however, IoT Projects Parties exclude and disclaim any implied warranties including those of merchantability, title, fitness for a particular purpose, workmanlike effort and non-infringement.
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IOT PROJECTS PARTIES BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF DATA OR OTHER INFORMATION, USE, GOODWILL) ARISING OUT OF, BASED ON, OR RESULTING FROM YOUR USE OR INABILITY TO USE THE MARKETPLACE SERVICE, APPLICATIONS, DATA, MANUFACTURER CONTENT OR OTHER THIRD PARTY OFFERINGS (INDIVIDUALLY AND COLLECTIVELY, “OFFERINGS”). FOR ILLUSTRATION ONLY, AND WITHOUT LIMITING OR INTENDING TO LIMIT THE ABOVE, IOT PROJECTS PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM: (A) COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, SOFTWARE PROGRAMS, CONTENT OR SERVICES; (B) UNAUTHORIZED ACCESS TO OR USE OF YOUR ACCOUNTS; (C) ANY ALTERATION, CORRUPTION, DELETION, DAMAGE OR LOSS OF ANY OFFERINGS, OR OTHER CONTENT OR APPLICATIONS USED IN CONNECTION WITH THE OFFERINGS; (D) FAILURE TO PROVIDE ACCURATE OR COMPLETE INFORMATION WITH RESPECT TO THE OFFERINGS; (E) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ONLINE ACCESS TO OR USE OF THE OFFERINGS; (F) INCOMPATIBILITIES BETWEEN THE MARKETPLACE SERVICE AND OTHER OFFERINGS, OTHER SERVICES, SOFTWARE OR HARDWARE; AND (G) ANY THIRD PARTY CONDUCT OR TRANSMISSIONS OR DATA. IOT PROJECTS PARTIES SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS IN THE MARKETPLACE SERVICE THAT AFFECT YOUR ABILITY TO ACCESS, USE, SELECT OR RETRIEVE ANY OFFERINGS.
11. THESE LIMITATIONS ON LIABILITY APPLY EVEN IF IT RESULTS IN LOSSES TO YOU THAT ARE NOT COMPENSATED AND IOT PROJECTS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. SUCH LOSSES WILL NOT CONSTITUTE A FAILURE OF THIS AGREEMENT’S ESSENTIAL PURPOSE.
12. TERM AND TERMINATION.
a. Term. The term of this Agreement will begin, and you may begin using the Marketplace Services, once you agree to the terms of this Agreement by checking the “accept” box below and complete the registration process for Your Account.
b. Termination or Suspension. We may change or discontinue the Marketplace Service or certain features at any time and for any reason. We may cancel or suspend the Marketplace Service, or Your Accounts, or remove any content from the Marketplace Service at any time and for any reason. We may suspend the Marketplace Service or Your Account(s) immediately upon notice to you. For cancelations, we will provide 5 day’s advance notice to you in accordance with the notice provisions in Section 17 below. Upon suspension or cancellation, your right to use the Marketplace Service or Your Accounts (as applicable) stops right away.
13. INTELLECTUAL PROPERTY RIGHTS; COPYRIGHT CLAIMS.
ALL RIGHTS TO THE MARKETPLACE SERVICE ARE RESERVED. We, our licensors and our suppliers reserve all right, title and interest (including all intellectual property and proprietary rights) in and to our respective products and services made available to you under this Agreement. In accepting the terms of this Agreement or using the Marketplace Service, you do not acquire any ownership interest in or rights to any Manufacturer Content, SDM products, SDM services or Third Party Offerings that may be listed or displayed within Marketplace Service.
OUR RIGHTS TO USE FEEDBACK. You may, but are not obligated to, provide opinions, feedback, suggestions and other information to SDM regarding your use of the Marketplace Service (collectively, “Feedback”). If you elect to provide Feedback, You hereby license to SDM, its suppliers and assigns, without charge, any rights needed under your intellectual property, to use, share and commercialize any such Feedback in any way and for any purpose. These rights survive any termination or expiration of this Agreement.
14. LINKS TO THIRD PARTY SITES.
The links made available on the Marketplace Service web pages will let you leave SDM’s site. The linked sites are not under the control of SDM and SDM is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. SDM is not responsible for webcasting or any other form of transmission received from any linked site. SDM is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by SDM of the site.
15. CONTRACTING PARTY, CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES.
If your primary headquarters is located in Europe, you are contracting with SDM Spain location, and the laws of Spain govern the interpretation of this Agreement and apply to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the country to which we direct your service. With respect to jurisdiction, you may choose the responsible court in Spain or in the country to which we direct your service for all disputes arising out of or relating to this Agreement.
16. INTERPRETING THE AGREEMENT. A court may hold that we cannot enforce a part of this Agreement as written. If this happens, then you and we will replace that part with terms that most closely reflect our intention and the rest of this Agreement will not change. This Agreement forms the entire agreement regarding your use of the Marketplace Service. This Agreement supersedes any prior agreements or statements (whether oral or written) regarding your use of the Marketplace Service.
17. CONSENT TO ELECTRONIC DISCLOSURES; ASSIGNMENT; NOTICE; GOVERNMENT CUSTOMERS; EXPORT; WAIVER OF RIGHT TO VOID ONLINE PURCHASES.
This Agreement is in electronic form. We have promised to send you certain information in connection with the Marketplace Service and have the right to send you certain additional information. There may be other information regarding the Marketplace Service that the law requires us to send you. We may send you this information in electronic form. You have the right to withdraw this consent, but if you do, we may cancel Your Accounts. We may provide required information to you:
o by e-mail at the e-mail address you specified when you signed up for your Marketplace Service accounts;
o by access to a SDM Web site that will be designated in an e-mail notice sent to you at the time the information is available; or
o by access to a SDM Web site that will be generally designated in advance for this purpose.
You may not assign this Agreement. SDM may assign this Agreement to its affiliates.
Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. As long as you can access and use the Marketplace Service, you acknowledge that you have the necessary software and hardware to receive and retain these notices. If you do not consent to receive any notices electronically, you must stop using the Marketplace Service. You may notify us as stated in the “IoT Projects Platform Support,” “Feedback,” or “help” areas for the Marketplace Service.
The Marketplace Service, including software provided by IoT Projects, is subject to European Union laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Marketplace Service. These laws include restrictions on destinations, end users and end use.
To the maximum extent permitted by applicable law, you waive your rights to void purchases under this Agreement pursuant to any law governing distance selling or electronic or online agreements, as well as any right or obligation regarding prior information, subsequent confirmation, rights of withdrawal, or cooling-off periods.
