Terms of use and Service Levels Agreement

Talk2M License Agreement

 

Welcome to Talk2M Service,

THIS LEGAL AGREEMENT BETWEEN YOU AND HMS INDUSTRIAL NETWORKS GOVERNS YOUR USE OF THE TALK2M. IT IS IMPORTANT THAT YOU READ AND UNDERSTAND THE FOLLOWING TERMS. BY CLICKING &“AGREE,” YOU ARE AGREEING THAT THESE TERMS WILL APPLY IF YOU CHOOSE TO ACCESS OR USE TALK2M.

This agreement is done between : HMS Industrial Networks SA, a company organized and existing under the laws of Belgium, registered with the Crossroads Database for Enterprises under number 0450.350.907 (RLP Nivelles), having its registered office at 1400 Nivelles, Avenue Robert Schuman 22 hereafter referred to as “HMS”, 

And you, hereafter referred to as the « Client»,

Hereinafter collectively referred to as “Parties

WHEREASThe Client is using HMS eWON devices manufactured by HMS in order to monitor its industrial equipment or device. The Client now wishes to optimize its access to the monitored industrial equipment by using the Talk2M cloud connectivity solution made available by HMSHMS accepts to grant access to the Client to its TALK2M platform and to perform the associated Services, under the terms and conditions of the present Agreement.

NOW, THEREFORE, the Parties have agreed as follows:

 

Art. 1                  DEFINITIONS

  •  Account” means the space in which all Devices and users will be registered into the Talk2M Services and that will be associated to the Talk2M Administrator Contact Person.
  •  Devices” means any unit to which a User connect to through Talk2M Services. It can be a standard eWON devices or any HMS OEM unit complying with Talk2M connectivity requirements.
  •  Installation Fee” means initial installation fee or renewal Account fee due by the Client;
  • Reselling Partner” means the third party in charge of selling the TalK2M Services to the Client, as HMS  official distributor or reseller.
  •  Services” means any Talk2M Connectivity Services between Users and Devices and including also available Connectivity Bandwidth, Connectivity Traffic and other TALK2M related Services that will be offered in future versions. These Services do not comprise the connectivity between users to Internet and also Devices to Internet.
  •  Service Levels” means the service level commitments of HMS .
  •  Service Packages” means Services as ordered by the Client.
  •  Service Commencement Date” means the date upon which the Services will start;
  • Software” means all software which are distributed by HMS for device remote access by Internet.
  • User” means any User of the Services that must be registered beforehand in an Account. Any User must be an employee or officer of the Client.

 

Art. 2                  OBJECT OF THIS AGREEMENT

HMS will provide the Client with the Services and will perform the Services in accordance with the Service LevelsHMS commits to provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Services will perform substantially in accordance with the online Talk2M documentation under normal use and circumstances.

 

Art. 3                  CLIENTS OBLIGATIONS

The Services are provided subject to Client’s proper use of them and therefore, Client undertakes that the use of the Services will not be in breach of the license terms hereunder, nor any other applicable laws, codes or regulations including data protection laws. The Client may use the Services only for its internal business purposes and shall not: (i) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (ii) attempt to gain unauthorized access to the Services or its related systems or networks.

The Client needs to provide and maintain its own equipment, software and communications lines, including any public lines required by him to properly access the Services through Internet.

The Client is responsible for all activity occurring under its Account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. The Client shall: (i) notify HMS immediately of any unauthorized use of any password or Account or any other known or suspected breach of security; (ii) report to HMS immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by the Client of its Users.

All Internet use is subject to security vulnerabilities. The Clients commits to implement all the security measures necessary to ensure the protection and privacy of its personal information and the Services he is using. HMS provides high security for the Services but the client remains liable for any other Security issue.

The Client agrees that HMS may suspend Services without prior notice and without liability (or indemnity) if:

  • The Services are being used in violation of the license right as set out in the present agreement;
  • There is an attack on HMS  servers, or any other event for which HMS  reasonably believes that the suspension of Services is necessary to protect its network or its other customers; or
  • If required by law or regulation or as compelled by a law enforcement or government agency.

The Client represents and warrants that he has not falsely identified himself nor provided any false information to gain access to the Service and that billing information is correct.

 

Art. 4                  SERVICE LEVELS

HMS provide two different kinds of Services, a free service, called “Talk2M Free” and a payable professional service called “Talk2M PRO”.

4.1 Talk2M FREE

Talk2M Free services are free services provided ‘as is’ for HMS customers. TalK2M Free services do not include any HMS’s liabilities and are limited in terms of functionalities. There is no time limit in the customer usage of TalK2M Free Services.

4.2 Talk2M PRO

Talk2M PRO is a professional payable service based on a top-class Hosting Infrastructure:

  • Internet Network

The Talk2M Pro Services are hosted on first class hosting providers which guarantee that, when not undergoing scheduled maintenance, the network infrastructure will be available 100% of the time in each month. Network availability means all network infrastructure including routers, switches and cabling is working. The Network infrastructure is defined as the portion of the network extending from the outbound port on Talk2M cabinet switch to the outbound port on the border router. Services or Software running on Talk2M servers are not counted as part of the network. Downtime begins when an interruption is recorded in the monitoring system or a trouble ticket is opened saying that Talk2M can’t transmit and receive data (whichever is earlier).

  • Server Hardware

The Talk2M Pro Hosting providers guarantee that all Hardware components will function properly and will rectify or replace any component with a fault at no cost. Hardware is defined as the server chassis, processor(s), memory, storage devices, motherboard, power supplies, and network interface cards. This includes faults in Hardware due to failures in power and HVAC infrastructure including UPS, PDU and cabling. This guarantee does not apply to the time required to rebuild a RAID array, reload the operating system, reload and configure applications, and/or restore from backup (if necessary). We will begin fault resolution once we identify the problem component. Fault resolution is guaranteed to be complete within one (1) hour of problem identification. In the event of a hardware failure which causes an outage in your hosted configuration, failed hardware is guaranteed to be repaired or replaced within one (1) hour of problem identification.

 

Talk2M Pro Services provide also :

  • Maximum Service DownTime

HMS guarantees the Client a maximum downtime of the service of four (4) consecutives hours.  This Maximum Service Downtime include Internet network recovery problem, server hardware recovery problem, reloading operating system, reload and configure applications, backup restore, excluding scheduled maintenance. Downtime begins when an interruption is recorded in the monitoring system or a trouble ticket is opened saying that Talk2M cannot transmit or/and receive data (whichever is earlier). Trouble ticket can be issued by customers through a dedicated 365/7/24 phone hotline. In the event that the Maximum Service Downtime exceed 4 hours in a given month due to HMS  fault, and this failure directly and adversely affects your business, HMS will refund 5% of the monthly recurring charge per hour of additional downtime above the 4 hours (up to 100% of the monthly average fee).

  • Total Service Availability

HMS  guarantees the Client a total Talk2M yearly availability of 99,6%. The Total Service Availability is computed as the ratio between the sum of all Service Downtime (in hours) and the total number of hours in a year. In the event that the Total Service Availability goes down 99,6% due to a negligence of HMS , and this failure directly and adversely affects the Client’s business, HMS will refund 5% of the annual Talk2M fee.

  • Bandwidth

The bandwidth of the Client’s connections to Talk2M service is depending of the total network infrastructure including the Internet connection, the HMS device throughput, the HMS Internet connection, The present agreement only covers the Talk2M server bandwidth to Internet. A permanent monitoring of this Bandwidth for the Talk2M server to Internet is performed to guarantee that the Client’s bandwidth connections will not be limited by the Talk2M hosting infrastructure.

 

The TalK2M PRO services Level do not apply for any month to the extent that service credits arise as a result of a breach of the license granted or if the Client is in material default of payment. To receive any fee reduction the Client must have paid every outstanding invoice of the Reselling Partner related to the Services provided by HMS, and request the fee reduction during a period of 30 days after the date of the report wherein the Downtime is registered. The Client cannot claim any other compensation or remedy in case Service Levels are not met.

 

Art. 5                  PRICES AND PAYEMENT

TalK2M FREE Services  are provided for free for HMS customer,

Talk2M PRO Services Packages ordered feed a credit line base. On the Service Commencement Date, the Reselling Partner will send the Client an invoice for the Service Package ordered and the Installation Fee in accordance with the prices as set out in the quotation previously addressed. Every month, HMS will send a detailed financial statement containing all the details of variables consumed. All prices are expressed in Euro or USD or JPY and are exclusive of applicable Value Added Tax or other relevant taxes. As soon as the remaining credit line amount will be less than 15 % of the total of the previously ordered Service Package Fees, the Client should reorder new Service Packages through his HMS Reselling Partner to continue the Services, otherwise, the Client accept to terminate the Service.

 

Art. 6                  DURATION AND TERMINATION

HMS will provide the Talk2M Free Services with no time limit.

The TalK2M PRO Services start from the Service Commencement Date and terminate when the  credit line is becoming negative and is not refilled by the Client. In this case, Talk2M PRO services will be switched back to Talk2M FREE services.

Each Party shall be entitled to terminate this Agreement, if the other Party is in material breach of its obligations under this Agreement and such breach has not been rectified within thirty (30) days after receiving a notification, unless such notification is unworkable in the given circumstances.

In the event of any change in the situation of the Client, such as, but not limited to conversion, merger and acquisition, transfer, suspension of payment, bankruptcy, judicial arrangement, liquidation, cessation of activities or any other circumstance which might damage the solvency of the Client, HMS reserves the right:

(1) to suspend the execution of this Agreement until the date the Client provides HMS with an adequate guarantee for its payment; or

(2) to consider this Agreement as terminated, as from the date of sending of the termination, without prior notice to the Client or recourse to a court, notwithstanding the right of HMS to claim additional compensation.

On termination by either of the Parties the following will apply:

  • any rights or obligations which have accrued prior to termination will not be affected;
  • any service credits due by the Client under the Service Levels, will be paid within 30 days;
  • all Confidential Information belonging to the other Party will be returned or destroyed within 14 days;

 If this agreement is terminated by the Client (other than by reason of a breach by the Client), HMS will reimburse the credit line balance at the end of the month of the notice date and will make available to the Client a file of the Account Information within 30 days of termination

 

Art. 7                  LICENCE

License Grants and Restrictions

If the law of any country where the Client intends to use the Software prohibits from downloading or using the Software because the latter is not allowed in this country including applicable rules that govern the export or import of Software, the Client shall refrain from using it. The Client will use the Software solely for lawful purposes.

Subject to the terms of this Agreement, HMS hereby grants the Client a limited, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable, free of charge license to download, install and use the Software on its computers, for the sole purpose of personally using the internet connectivity Services provided by Talk2M and any other applications that may be explicitly provided by HMS.

The Client will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Software or any part thereof. The Client agrees not to reverse engineer the Software or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Software or the Service. The Client agrees not to access the Services if he is a direct competitor of HMS and Talk2M, except with HMS’s prior written consent. In addition, the Client agrees not to access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

 

Art. 8                  OWERNERSHIP, PRIVACY&SECURITY

HMS  alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Talk2M Technology, the Content and the Service and any suggestions, documentation, know-how, ideas, enhancement requests, feedback, recommendations or any other information provided to the Client or any other party relating to the Service. This Agreement does not entail a transfer of any rights of ownership in or related to the Service, the Talk2M Technology or the Intellectual Property Rights owned by HMS. The Talk2M name, the Talk2M logo, and the product names associated with the Software or Services are trademarks of HMS or third parties, and no right or license is granted to use them. HMS cannot be held liable for any breach of other intellectual property rights, due to the use of the Software and/or other Services provided by HMS.  The Client recognizes and guarantees that HMS does not breach intellectual property rights or other rights of the Client or any third party.

 

Art. 9                  UPDATES

HMS, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to any software part of the Service. HMS, in its sole discretion, may modify or discontinue or suspend your ability to use any version of any software part of the Service.

HMS, in its sole discretion may decide to apply an automatic security patch upgrade (ASPU) to your Account and to all Devices with a new software version containing a security patch. This is essential to maintain the global security level of the Services. A trackability log file with all security automatic patch updates is provided to the Client. However you may refuse this ASPU application by un-checking the option in the Software. In this case, HMS will not be liable from any consequence arising from not having applied the ASPU on your Account or Devices. Moreover, if you refused the ASPU option, HMS  reserves the right to suspend the services without prior notice and without liability (or indemnity) for the sake of protecting its network or its other customers.

HMS will not accept any liability in relation to the direct or indirect damages caused by the release and/or the absence of release of new versions of the Service. In the event of any bug found in the Software that limits or restricts the use of it, HMS  shall do all reasonable efforts to provide, in a as short as possible period of time, a programming fix, an update or an upgrade of the software.

 

Art. 10               CONFIDENTIALITY

All Software, plans, documents, know – how, data and other information, provided to the other Party under this Agreement shall be considered and treated as confidential (hereinafter referred to as “Confidential Information”).  The Confidential Information remains at all times the property of the disclosing Party. Each party is required to comply with a confidentiality obligation throughout the term of this Agreement, as well as for a period of five years following its expiry, unless express authorization is granted by the other party. Each party shall ensure its collaborators, workers, employees, subcontractors, etc. comply with the same obligation.

Consequently, each Party shall refrain from disclosing any confidential information to a third party without the prior written consent of the other Party, unless this is forbidden by applicable legislation.

The confidentiality obligation is a duty to achieve a specific result. If one party fails to comply with this confidentiality obligation, the other party will be able to claim ipso jure and without prior notice damages of a minimum amount of 50,000.00 euros excluding tax (fifty thousand euros) for each violation, without prejudice to its right to claim additional compensation in case the effective damage suffered is higher.

 

Art. 11               LIABILITITY

HMS will use all reasonable skills and cares in performing this Agreement. HMS agrees, to use its best efforts, to provide reasonable security data protection throughout all Devices and users that have subscribed to the Services. In any circumstances, HMS is not liable in case of unauthorized access to Client’s Devices, content or data through use of our Services unless the unauthorized access was caused by HMS’s failure to perform its obligations under this Agreement.

The total compensation, for which HMS may be liable with regard to the Services and by virtue of its contractual and/or extra contractual liability, may not, under any circumstances, exceed the total invoice amount of the last 6 months, before the event giving rise to the damages has occurred.

HMS shall not, in any circumstance, be liable for any increased costs nor expenses, loss of profit, business contracts, revenues nor expected savings nor any special, indirect nor consequential damage whatsoever arising out of this Agreement.  As indirect losses or damages will be considered, without being limited hereto: financial or commercial losses, loss of earnings, increased overhead costs, disruption of planning, loss of anticipated profits, customers or savings.

This limitation of liability does not affect the liability of HMS regarding the Services Levels, as described after. The remedies given in the Service Levels are the Client’s only remedies for HMS ’s failure to meet the agreed Service Levels.

The Client agrees to indemnify, defend and hold HMS, affiliates, HMS distributor and HMS staff harmless from and against any and all liability and costs, including reasonable attorneys' fees incurred by such parties, in connection with or arising out of (a) any violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein by the Client or a User, or (b) any violation by the Client or a User of any rights of any third party, or (c) use or misuse of the Service by the Client or a User.

Nothing in this Agreement excludes or limits HMS’s liability for fraudulent misrepresentation or for death or personal injury caused by its negligence. Except for the warranties given in this Agreement, all implied or other warranties are excluded to the extent HMS is legally able to do so.

THE SERVICES ARE PROVIDED AS IS WITH ALL FAULT AND WITH NO WARRANTIES WHATSOEVER; IN THE DEVELOPMENT PROCESS, HMS DID ITS BEST TO PROVIDE THE SERVICES AS DESCRIBED IN THE DOCUMENTATION; HOWEVER, HMS DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE OR A PARTICULAR PURPOSE.

As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply. In such event HMS’s liability will be limited as far as legally possible under the applicable legislation.

 

Art. 12               FORCE MAJEURES

HMS shall not be liable for any failure in the execution of this Agreement due to force majeure or hardship.  In case of force majeure or hardship, HMS has the right (1) to temporarily suspend the execution of its obligations; or (2) to terminate the Agreement by registered letter; and/or (3) to invite the Client to renegotiate this Agreement. For the execution of this Agreement, force majeure and hardship are considered as, without being limited hereto: acts of any governmental body, war, insurrection, sabotage, terrorism, embargo, fire, flood, storm or other acts of God, strike, lock - out or labor disturbances, internet system unavailability of components not controlled by HMS, virus attacks, unavailability of or interruption or delay in telecommunications, or hackers, failure of third party software, power outages, delays in supply, export ban,  sickness or accidents, breakdown of plant or machinery, etc.

 

Art. 13               APPLICABILITY

This Agreement constitutes the entire agreement between the Parties and annuls and replaces all previous written proposals and agreements relating to the subject hereof, with the exclusion of any confidentiality agreement concluded between the Parties. The present Agreement replaces and excludes any terms and conditions of either Party unless otherwise agreed upon in writing by the Parties. In the event of conflict or difference between the terms of this agreement and its annexes, this agreement shall prevail.  In the event of conflict between the terms of the annexes themselves, the most recent document shall take priority. In the event of conflict or difference between the terms of this Agreement and a confidentiality agreement concluded between the Parties, the confidentiality agreement shall prevail.

 

Art. 14               MISCELLANEOUS

Any amendments to this Agreement, as well as any additions or deletions, must be agreed in writing by both the Parties. Whenever possible, the provisions of this Agreement shall be interpreted in such a manner as to be valid and enforceable under the applicable law. However, if one or more provisions of this Agreement are found to be invalid, illegal or unenforceable, in whole or in part, the remainder of that provision and of this Agreement shall remain in full force and effect as if such invalid, illegal or unenforceable provision had never been contained herein. Moreover, in such an event, the Parties shall amend the invalid, illegal or unenforceable provision(s) or any part thereof and/or agree on a new provision in such a way as to reflect insofar as possible the purpose of the invalid, illegal or unenforceable provision(s).

 

Art. 15               APPLICABLE LAW

This Agreement is governed by Belgian law. All disputes concerning the validity, interpretation, enforcement, performance and termination of this Agreement shall be submitted to the exclusive jurisdiction of the Nivelles’ courts.

 

Art. 16               ELECTRONIC CONTRACTING

Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SERVICE. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.