This agreement together with any applicable Purchase Order issued hereunder (the “AGREEMENT“), effective as of the date set forth on an applicable Purchase Order (“EFFECTIVE DATE”), is established as a legal agreement between the entity or person accepting these terms (the “CUSTOMER“;) and the legal entity of thehtings.io named DIPRO TECHNOLOGIES S.L. (“DIPROTECH“), with offices at Hipòlit Làzaro 25, LOCAL 3, 08025 Barcelona (Spain).
THIS AGREEMENT REGULATES THE ACCESS AND USE OF THE SERVICE BY THE CUSTOMER. BY ACCESSING THIS SERVICE OR USING IT, THE CUSTOMER ACCEPTS, IN REPRESENTATION OF A PHYSICAL OR LEGAL PERSON, TO COMPLY WITH THE CONDITIONS OF THIS AGREEMENT.
For the purposes of this AGREEMENT, Party shall mean DIPROTECH or the CUSTOMER according to the meaning
of the expression in each case and Parties shall mean DIPROTECH and the CUSTOMER jointly.
Subject to the terms and conditions of this AGREEMENT, DIPROTECH (a) will use commercially reasonable efforts to host, operate and maintain the Services as set forth on the Purchase Order, which may include the thehtings.io Platform (the “Platform”), the and/or other services offered by DIPROTECH (collectively, the “Services”), and (b) grants the CUSTOMER a non-exclusive, non-transferable, non-
Access and Account Setup
DIPROTECH will render the Services in accordance with this AGREEMENT. DIPROTECH will provide the CUSTOMER with an Administrator Account that can be used to manage the User Accounts, thehtings.io Panel and other functionalities of the Services. The CUSTOMER shall administer the Services through the thehtings.io Panel Console.
The CUSTOMER may subscribe to additional Services by submitting an additional Order From or by sending an email to email@example.com. This AGREEMENT will apply to all Purchase Orders and to all additional Services that the CUSTOMER may subscribe.
DIPROTECH will use commercially reasonable efforts to guarantee access to subscribed Services available 24 hours a day, 7 days a week, with the exception of interruptions scheduled for maintenance tasks. In the event that the CUSTOMER requires additional guarantees of availability, he or she must explicitly subscribe to the Platinum Service Level Agreement (SLA).
Modification to Services
Thehtings.Io PLATFORM: TERMS OF SERVICE (SaaS)
DIPROTECH will not assess the contents of CUSTOMER Data in order to identify information subject to any specific legal requirements. The CUSTOMER is solely responsible for complying with incident notification laws applicable to the CUSTOMER and fulfilling any third-party notification obligations related to any Data Incident(s).
Data Correction, Blocking and Deletion
During the period of this AGREEMENT, DIPROTECH will provide the CUSTOMER or End Users with the ability to correct, block, export and delete CUSTOMER Data consistently with the functions of the Services. Once theCUSTOMER deletes the CUSTOMER Data (without being able to recover them), DIPROTECH will remove such CUSTOMER Data from its systems as soon as reasonably possible and within a maximum period of 180 days.
On expiry of the Term, the CUSTOMER instructs DIPROTECH to delete all CUSTOMER Data (including existing copies) from DIPROTECH systems in accordance with applicable law. DIPROTECH will, after a recovery period of up to 30 days following such expiry, comply with this instruction as soon as reasonably practicable and within a maximum period of 180 days, unless EU or EU Member State law requires storage.
The CUSTOMER acknowledges and agrees that CUSTOMER will be responsible for exporting, before the Term expires, any CUSTOMER Data it wishes to retain afterwards.
Access to Data
DIPROTECH shall provide the CUSTOMER with the CUSTOMER Data in accordance with the terms of the
AGREEMENT in a manner consistent with the functions of the Services, including the applicable SLA. To the extent that the CUSTOMER, in its use and administration of the Services, does not have the ability to modify or delete CUSTOMER Data (as required by applicable law), or to migrate CUSTOMER Data to another system or service provider, DIPROTECH will respond to reasonable requests made by the CUSTOMER to help facilitate such actions provided that DIPROTECH is legally allowed and has reasonable access to the CUSTOMER Data.
Data Protection Officer
According to General Data Protection Regulation (“GDPR”, EU 2016/679) compliance directives of responsibility and accountability, the CUSTOMER can contact Data Protection Officer designated by DIPROTECH at firstname.lastname@example.org
Data Storage, Processing and Transfer
The CUSTOMER may select in the Purchase Order, from locations where DIPROTECH or its Cloud service providers have facilities, where certain CUSTOMER Data will be stored (the Data Location Selection), and DIPROTECH will store it there in accordance with this AGREEMENT.
If a Data Location Selection is not made by the CUSTOMER in respect of any CUSTOMER Data, as part of the provision of Services, DIPROTECH may store and process the CUSTOMER Data in European Union countries or in any other country where DIPROTECH or its Cloud service providers have facilities, in any case complying with the provisions in the Data Protection Legislation.
DIPROTECH’s Security Assistance
The CUSTOMER agrees that DIPROTECH will (taking into account the nature of the processing of CUSTOMER Personal Data and the information available to DIPROTECH) assist the CUSTOMER in ensuring compliance with any of CUSTOMER’s obligations in respect of security of personal data and personal data breaches, including if applicable CUSTOMER’s obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR, by:
- implementing and maintaining the Security Measures in accordance with DIPROTECH Security Measures
- complying with the terms of Section Data Incidents; and
- providing CUSTOMER with the information contained in the AGREEMENT including these Terms.
DIPROTECH may hire or engage one or more Subcontractors to provide parts of the Services. DIPROTECH will ensure that Subcontractors only access and use CUSTOMER Data in accordance with the terms of the AGREEMENT and that they are bound by written obligations that require them to provide at least the level of data protection required by the AGREEMENT. The CUSTOMER gives its consent to DIPROTECH to subcontract the processing of the CUSTOMER Data to Subcontractors in accordance with the terms stipulated in this AGREEMENT.
CUSTOMER OBLIGATIONS: TERMS OF SERVICE (SaaS)
DIPROTECH may incorporate at any time new applications, services or additional functions to the Services, whose use may be subject to acceptance by the CUSTOMER of new terms and conditions.
Management of Services: TERMS OF SERVICE (SaaS)
Through the thehtings.io Panel, the CUSTOMER shall designate an Administrator, who can access the Administrator Account from which he/she can manage the User Accounts. It shall be the responsibility of the CUSTOMER: (a) to maintain the confidentiality of the password and the Administrator Account; (b) verify that all activities developed in connection with or through the Administrator Account and User Account(s) comply with the provisions of this AGREEMENT, assuming full responsibility for any breach by Administrator or Users of any such provisions.
Privacy and User Consent
The CUSTOMER will obtain and maintain any required consents necessary to permit the processing of CUSTOMER Data under this AGREEMENT.
The Administrator designed by the CUSTOMER shall have the ability to access, monitor, use or disclose data available to Users contained in User Accounts through the thehtings.io Panel. The CUSTOMER agrees to obtain and to conserve the consents of the Users that are necessary in order to allow: (a) such access, supervision, use and/or disclosure by the CUSTOMER; and (b) DIPROTECH the provision of the Services in the manner provided in this AGREEMENT.
The CUSTOMER will make reasonable efforts to prevent unauthorized use or access to the Services, as well as to stop any unauthorized use. The CUSTOMER will immediately notify DIPROTECH of any unauthorized use or access to the Services of which it may have knowledge.
Restrictions of use
Except to the extent expressly authorized by this AGREEMENT or otherwise agreed in writing by DIPROTECH, the CUSTOMER shall not: (a) sell, resell, or lease the Services to a third party, or otherwise make the Services available to third parties; (b) attempt to perform reverse engineering in connection with the Services or any component of the Services, except to the extent permitted by applicable law; (c) seek to create a substitute or similar service through the use or access to the Services; (d) use the Services for High-Risk Activities; or (e) use the Services to store or transfer any CUSTOMER Data that is controlled for export purposes in accordance with the Export Control Laws and will use reasonable efforts to ensure that no third party performs any such action.
Without limiting the rights of DIPROTECH with respect to any other breach of this Clause, breach of Clause will lead to termination of the Subscription to thehtings.io Platform.
Responsibilities under European Legislation
If the European Data Protection Legislation applies to the processing of CUSTOMER Personal Data, the CUSTOMER agrees and acknowledges that it is compliant with obligations applicable to it under the European Data Protection Legislation with respect to the processing of that CUSTOMER Personal Data.
SUBSCRIPTION FEES AND PAYMENT
The Subscription Fees will be fixed during the subscription Term, except that: (i) the CUSTOMER exceeds the Limits established in the subscription and as defined in the corresponding Purchase Order, in particular the limit of users or other limitations that may apply (see the section Subscription Limits); or (ii) the CUSTOMER subscribes to additional Services or change Subscription Limits, including Users, Devices and/or additional Places. In the case of Services to which limits of Users, Devices or Places apply, the CUSTOMER will be charged the fees associated with all Users, Devices and/or Places to be invoiced.
The Purchase Order associated with the subscribed Services sets the monthly usage limits established in it. These limits are designated based on particular Service being purchased and may include the following options. In the case of Services to which user limits apply, the CUSTOMER will be charged the additional fees associated with the excess of the number of users in a calendar month with respect to the limit contracted in the subscription Term.
Limit Adjustments In The Next Calendar Month
DIPROTECH will determine if the CUSTOMER has exceeded the monthly Subscription Limits established in the subscription for the next calendar month. This revision is completed at the end of each calendar month. If the CUSTOMER exceeds any monthly limit by more than 20% unless specified otherwise in the Purchase Order, when this revision is completed, the CUSTOMER’s Subscription Fee will increase at the beginning of the next calendar month to bring it to the price of the level corresponding to the maximum limit revised. This review and update process will be applied to each calendar month during the subscription Term.
All payments must be made in the currency indicated in the Purchase Order or invoice (as applicable). The CUSTOMER will pay for the Services according to one of the methods included below, which the CUSTOMER must choose when placing an order for Services. Payment methods may not be available to all CUSTOMERS.
Payment by credit card
The Prices of orders paid by credit or debit card, or by direct debit from the CUSTOMER’s bank account, expire at the beginning of the subscription Term during which the CUSTOMER receives the Services. The CUSTOMER expressly authorizes that DIPROTECH will charge to the CUSTOMER’s credit or debit card, or to the CUSTOMERs bank account (as applicable), all applicable Prices once expired. Likewise, the CUSTOMER authorizes DIPROTECH to employ a third party to process the payments, and accepts the disclosure of its payment information to said third party.
Payment against invoice
If the CUSTOMER chooses payment against invoice, he expressly authorizes DIPROTECH to invoice no more than forty-five (45) days before the beginning of the subscription Term and each subsequent Billing Period, and other times during the subscription Term when there are fees that must be paid. All invoiced amounts are due and payable within thirty (30) days from the date of the invoice, unless specified otherwise in the Purchase Order, and are considered pending payment from that date.
DIPROTECH may occasionally offer the CUSTOMER alternative options or billing plans (for example, in the Purchase Order). If the CUSTOMER accepts an option or alternative billing plan, the terms of said option or plan will be applicable as identified in the offer.
Suspension for non-payment
If the CUSTOMER does not pay DIPROTECH the fees pending payment within 30 days from its due date, DIPROTECH may automatically suspend the use of the Services by the CUSTOMER until the CUSTOMER pays the remaining amount.
If the CUSTOMER has an annual commitment to DIPROTECH Services and is suspended for non-payment, DIPROTECH will continue charging the subscription fee while the CUSTOMER is suspended.
Termination after Suspension
If any pending amount is not paid within 60 days of its expiration, DIPROTECH may immediately terminate this AGREEMENT with a written notice to the CUSTOMER (which may be by email).
Claims regarding billing
Any claim related to billing must be submitted prior to the due date of the invoice. If the parties determine that certain billing system errors are attributable to DIPROTECH, DIPROTECH will not issue a corrected invoice but a credit voucher specifying the amount of the invoice that was found to be incorrect. If the claimed invoice has not yet been paid, DIPROTECH will apply the amount of the credit voucher to it and the CUSTOMER will be responsible for paying the resulting net balance due on said invoice.
If the CUSTOMER requests a purchase order number on his/her invoice, the CUSTOMER must inform DIPROTECH and DIPROTECH will include that order number in the invoices after the notification. If the CUSTOMER does not provide the order number, the CUSTOMER waives any order requirement and (a) DIPROTECH will invoice the CUSTOMER without order number; And (b) the CUSTOMER agrees to pay those invoices without a referenced order number. The parties agree that none of the terms and conditions set forth in the purchase orders issued by the CUSTOMER shall apply to this AGREEMENT and may not modify it, and that any term or condition set forth in such purchase orders shall be null and void.
The CUSTOMER acknowledges and accepts that the information contained in the DIPROTECH website about the contracting of the Services does not constitute a contractual offer or the beginning of a commercial relationship with the CUSTOMER, but must comply with the established requirements for the purchasing process as stated in this AGREEMENT and in accordance with the applicable regulations
All subscription fees exclude taxes, which will be charged accordingly with the applicable regulations. CUSTOMER is responsible for any Taxes, and CUSTOMER will pay DIPROTECH for the Services without any reduction for Taxes. The CUSTOMER is not responsible for any taxes that corresponds to gross income or net income of DIPROTECH.
If the CUSTOMER resides in the European Union, the CUSTOMER may provide DIPROTECH in a timely fashion with a valid tax exemption certificate issued by the relevant tax authority in his/her corresponding member state in order to be exempt from VAT tax. Otherwise, DIPROTECH is obliged to collect taxes, and these will be billed to the CUSTOMER.
If the CUSTOMER is subject to the GST (Tax on goods and services), we inform you that none of the DIPROTECH rates include this tax. In the event that the CUSTOMER must deduct or withhold any tax, he/she must pay the corresponding amount required by law and pay the DIPROTECH an additional amount so that DIPROTECH receives the full payment without any deduction or withholding.
TECHNICAL SUPPORT SERVICES
Provided By The CUSTOMER
The CUSTOMER must, at his/her own expense, answer any questions and claims that may be raised by the Users or any third parties in relation to the use of the Services by the CUSTOMER or the Users. The CUSTOMER shall make reasonable efforts in order to solve for itself the incidents that in the matter of technical support could be notified, before forwarding them to DIPROTECH in accordance with what is established in “Provided by DIPROTECH” Clause.
Provided By DIPROTECH
If the CUSTOMER is unable to solve an incident in accordance with the provisions of Clause “Provided by Customer”, he/her may submit it to DIPROTECH in accordance with the terms associated with the subscribed Services in the corresponding Purchase Order.
SUSPENSION Of The User Accounts By DIPROTECH
If DIPROTECH warns that a User Account is being used in breach of this AGREEMENT, DIPROTECH may specifically request the CUSTOMER to suspend the corresponding User Account. If the CUSTOMER does not suspend a certain User Account at the request of DIPROTECH, DIPROTECH may suspend it by itself. Such suspension will continue until the User in question corrects the breach that would have given rise to it.
Notwithstanding the foregoing, in the event of any Security Emergency, DIPROTECH may automatically suspend the impacted User Accounts. The Suspension will have the minimum entity and the shortest duration necessary, according to DIPROTECH, to prevent or solve the Security Emergency. In case DIPROTECH Suspends any User Account(s), for any reason, without previous notification to the CUSTOMER, at the request of the latter, DIPROTECH will provide to the CUSTOMER the reasons that have motivated the Suspension, as soon as reasonably practicable.
The recipient of any Confidential Information may not disclose such information, except to Group Companies, Subcontractors, Employees or Professional Advisers who need to know it and who have agreed in writing (or in the case of professional advisers, who are obliged to do so in accordance with the applicable regulations) to maintain the confidentiality of the same. The recipient shall ensure that such persons and entities use such Confidential Information only to exercise rights and to fulfill obligations under this Agreement and shall take all reasonable measures to protect it. Likewise, the recipient may disclose the Confidential Information if required by law, after reasonable notice, if permitted by law, the person or entity that disclosed it. Said notification must be made sufficiently in advance for the discloser to request a confidential treatment, a protection order or other similar solutions prior to disclosure.