TCloud Terms of Service
May 6th, 2020
This TWave TCloud Terms of Service (the "Agreement") is made and entered into by and between TWAVE, SL and the user or the entity agreeing to these terms ("You" or "Customer").
This Agreement is effective as of the date Customer clicks to accept the Agreement (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, refrain from using TCLOUD Services. This Agreement governs Customer's access to and use of TCloud Service (The "Service").
1. DEFINITIONS
"Account" refers to the account for the TCloud Service.
"Affiliate(s)" means in relation to each of the parties: (a) any parent company of that party; and (b) any corporate body of which that party directly or indirectly has control or which is directly or indirectly controlled by the same person or group of persons as that party.
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
"Customer Data" means the information collected, processed or stored using the Service.
"Documentation" means any accompanying documentation made available to You by TWAVE for use with the Services, including any documentation available online.
"Servers" means the servers controlled by TWAVE or its Affiliates on which the Processing Software and Customer Data are stored.
"Service" means TCloud Services provided by TWAVE, SL:
TCloud is Software as a Service (SaaS). It is an optional service available for TWave T8 users. This service provides its subscribers with the following basic functionalities:
- Remote access to TWave T8 devices through a single login on the platform
- TWave T8 device status monitoring panel
- Monitoring panel for the status of the machines supervised by the TWave T8
- Additional options available are:
- Backups of the information stored in the TWave T8 devices
- T8 Mirrors: A T8 Mirror is an online virtual T8, associated with a specific serial number of a real T8. A Mirror allows the user to view the information contained in the backup of a T8.
"Third Party" means any third party (i) to which You provide access to Your Account or (i) for which You use the Service to collect information on the third party's behalf.
"TWAVE" means TWave SL, with offices at C/ Secundino Roces Riera 1, 2-P8, 33428 Llanera, Asturias (Spain)
"TWave Software" means the software application running in TWave T8 Online Machinery Supervisor, which is used or incorporated in your equipment to collecting Data, for purposes of facilitating Your access to, operation of, and/or use with, the Services; together with any fixes, updates and upgrades provided to You.
"Your Content" means all software, data, text, images, sensor readings, non-Twave or third party applications, and other content and material, in any format, provided by You or any of Your Users that is stored in, or run on or through, the Services.
"Users" means, for Services, those employees, contractors, and end users, as applicable, authorized by You or on Your behalf to use the Services in accordance with this Agreement
2. USE OF THE SERVICES
2.1. Subject to the terms and conditions of this Agreement, a) TWAVE grants You a limited, revocable, non-exclusive, non-sublicensable license to use TCloud Services b) You may remotely access, view and download your TWave T8 devices and data processed by them for the sole purpose of internal business operations.
2.2. TWAVE may update at any time the Services and Service Specifications to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of Third Party Content.
2.3. You may not, and may not cause or permit others to: (a) use the Services to harass any person; cause damage or injury to any person or property; send unsolicited bulk e mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any benchmarking, availabilityor performance testing of the Services; or (c) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Services. A breach of this provision will entitle TWAVE to remove or your access to TCloud Services on the terms set out in Section 11 hereof.
3. MEMBER ACCOUNT, PASSWORD, AND SECURITY
3.1. To register for TCloud Service, You must complete the registration process by providing TWAVE with an e-mail address, username and password (User Account). You will protect your passwords and take full responsibility for your own, and third party, use of your accounts. By registering a user account, You acknowledge TWAVE’s processing of your personal data in accordance with TWAVE privacy policy. You are solely responsible for any and all activities that occur under your account. You will notify TWAVE immediately upon learning of any unauthorized use of your account or any other breach of security. TWAVE or its affiliates’ support staff may, from time to time, log in to the service under your account in order to maintain or improve service, including to provide You assistance with technical or billing issues.
4. OWNERSHIP RIGHTS AND RESTRICTIONS
4.1. You retain all ownership and intellectual property rights in and to Your Content. We or our licensors retain all ownership and intellectual property rights in and to the Services, derivative works thereof, and anything developed or delivered by or on behalf of us under this Agreement.
4.2. You may have access to Third Party Content through use of the Services. All ownership and intellectual property rights in and to Third Party Content and the use of such content is governed by separate third party terms between You and the third party.
4.3. The Service, which includes Twave Software and all intellectual property rights therein are, will remain the property of TWAVE. All rights in and to the Software not expressly granted to You in this Agreement are reserved and retained by TWAVE without restriction, including, TWAVE's right to sole ownership of the Software and Documentation.
4.4. Without limiting the generality of the foregoing, You agree, to the maximum extent permitted by applicable law, not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or Documentation or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of TWAVE; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with TWAVE other than in the name of TWAVE ; (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service or Software.
5. ACCES AND PROTECTION OF YOUR CONTENT
5.1. You grant us, for as long as you use the Services, the right to access, host, copy, use, process, display and transmit Your Content to provide the Services pursuant to and in accordance with this Agreement.
5.2. You understand that we use third party vendors and hosting partners to provide the necessary infrastructure, hardware, software, networking, storage and related technology required to run the Services, so you grant us the right to sublicense the same rights to such third parties to provide the Services.
5.3. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Your Content, and for obtaining all rights related to Your Content required by TWAVE to provide the Services. You agree, at Your sole cost and expense, to defend TWAVE against any claim and indemnify TWAVE from any damages, liabilities, costs, and expenses or the settlement agreed to by You, arising out of or in any way connected with Your Content.
5.4 TWAVE will establish reasonable administrative, physical and technical safeguards to protect Your Content, and prevent an unauthorized use or disclosure. We and our affiliates may perform certain aspects of the Services (e.g., administration, maintenance, support, disaster recovery, data processing, etc.) from locations and/or through use of subcontractors, worldwide.
5.5 You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content, including, without limitation, any viruses, Trojan horses, worms or other harmful programming routines contained in Your Content, or from Your use of the Services in a manner that is inconsistent with the terms of this Agreement. You may disclose or transfer Your Content to a third party, and upon such disclosure or transfer we are no longer responsible for the security or confidentiality of such content outside of TWAVE.
6. CONFIDENTIALITY
6.1. By virtue of this Agreement, the parties may disclose to each other information that is confidential ("Confidential Information"). Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information if permitted by law.
6.2. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
6.3. Each party may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement, and each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law.
7. PRIVACY POLICY
7.1. In performing the Services, TWAVE will comply with the TWAVE privacy policy applicable to the Services. TWAVE privacy policies are available at https://twave.io/privacy-policy.html.
8. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
8.1. Each party represents that it has validly entered into this Agreement and that it has the power and authority to do so. We warrant that during the Services Period, we will perform the Services using commercially reasonable care and skill in all material respects. If the Services provided to You were not performed as warranted, You must promptly provide us with a written notice that describes the deficiency in the Services.
8.2. EXCEPT FOR THE LIMITED WARRANTIES PROVIDED HEREIN, THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, BOTH EXPRESSED AND IMPLIED. WE DO NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR FREE OR UNINTERRUPTED, THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE CUSTOMER DATA EQUIPMENT OR SOFTWARE WILL NOT BE LOST OR DAMAGED. WE DO NOT WARRANT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. WE NOT MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTIONS OF THE SERVICES OR THEIR RELIABILITY, AVAILABILITY OR ABILITY TO MEET YOUR NEEDS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.
8.3. WE ARE NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT OR THIRD PARTY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES.
8.4. FOR ANY BREACH OF THE SERVICES WARRANTY, YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF WE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE DEFICIENT SERVICES.
8.5. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED, INCLUDING, WITHOUT LIMITATION, FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. LIABILITY FOR OUR SERVICES
9.1. WHEN PERMITTED BY LAW, TWAVE AND TWAVE’S SUPPLIERS AND DISTRIBUTORS WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF TWAVE AND ITS SUPPLIERS AND DISTRIBUTORS FOR ANY CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT THAT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU WITH THE SERVICES AGAIN). IN ALL CASES, TWAVE AND ITS SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
10. TERM AND TERMINATION
10.1. This Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 10 of this Agreement.
10.2. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days
10.3. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. TWAVE may terminate this Agreement for its convenience at any time without liability to Customer.
11. SUSPENSION
11.1. TWAVE may suspend Your or Your Users’ access to, or use of, the Services if believes that (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services; (b) when required to carry out the necessary maintenance, repair, updating or improvements (c) You or Your Users are accessing or using the Services to commit an illegal act; or (d) there is a violation of the Acceptable Use Policy. When reasonably practicable and lawfully permitted, TWAVE will provide You with advance notice of any such suspension. TWAVE will use reasonable efforts to re-establish the Services promptly after we determine that the issue causing the suspension has been resolved. During any suspension period, we will make Your Content (as it existed on the suspension date) available to You.
12. FORCE MAJEURE
12.1 Neither You nor TWAVE shall be responsible for any interruption, failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including, without limitation, the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. Both You and we will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of You or we may cancel unperformed Services. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures.
13. GOVERNING LAW AND JURISDICTION
13.1. This Agreement is governed by the laws of Spain and you and TWAVE agree to submit to the exclusive jurisdiction of the Courts of Gijón, Spain in any dispute arising out of or relating to this Agreement.
14. NOTICE
14.1. Any notice required under this Agreement shall be provided to the other party in writing. If You have a legal dispute with us or if You wish to provide a notice under the any Section of this Agreement, if You become subject to insolvency or other similar legal proceedings, or You decide to cease the use of the Services, You will promptly send written notice to the following email address: info@twave.io.
15. ASSIGNMENT
15.1. You may not assign this Agreement or give or transfer the Services, or any interest in the Services, to another individual or entity.
16. MISCELLANEOUS
16.1. We are an independent contractor, and each party agrees that no partnership, joint venture, or agency relationship exists between the parties.
16.2. Our business partners and other third parties, including any third parties with which the Services have integrations or that are retained by You to provide consulting services, implementation services or applications that interact with the Services, are independent of TWAVE and are not TWAVE’s agents. We are not liable for, bound by, or responsible for any problems with the Services or Your Content arising due to any acts of any such business partner or third party.
16.3. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.
16.4. You agree that this Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy) is the complete agreement for the Services ordered by You and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services.
16.5. TWAVE may modify these terms or any additional terms that apply to a TCLOUD Service at any time. You should look at the terms regularly. We’ll post notice of modifications to these terms on https://tcloud.twave.io/terms-of-service.html. Changes will not apply retrospectively and will become effective no earlier than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.