Hexastate CBM Solutions ApS – Terms & conditions
Updated 23/11 – 2022
This Terms and Conditions has been expanded in the following sections:
Section 7: Specifies how up-time is calculated for individual special contracts with extraordinary up-time promises.
Section 8: The usage of customer(s) logo(s) and the related procedure for removal of it from the supplier website.
Updated 25/9 – 2020
This Terms and Conditions page is split into 2:
Secition 1-11: Software Terms and Conditions
Section 12: Hardware Terms and Conditions
- Software Terms and Conditions
1.1. The Software Terms and Conditions (from now on “ the Agreement”) represent the terms for the supply of Software between Hexastate CBM Solutions (herein referred to as “ the Supplier”) and Hexastate CBM Solution’s customer (herein referred to as “the Customer”). The Agreement shall be binding from the Supplier’s Written confirmation of the purchase order to the Customer.
1.2. The Agreement shall apply to and form an integral part of: i) all quotations and offers (hereinafter both referred to as “Offer”) of the Supplier to the Customer; ii) all acceptances, acknowledgements or confirmations by the Supplier (hereinafter all referred to as “Confirmation”) of any order of the Customer, unless explicitly agreed otherwise in Writing between the Supplier and the Customer; iii) any agreement resulting from such Offer or Confirmation; iv) any agreement incorporating these Terms and Conditions by reference regarding the sale by the Supplier and purchase by the Customer, unless the Supplier explicitly agrees in Writing to the exclusion hereof.
1.3. The Parties are jointly referred to as „the Parties“.
1.4. The present document and the annexes are collectively referred to as „the Agreement“.
- Service to be rendered
2.1. Upon completion of this agreement, the Supplier undertakes to provide the Customer with a non-exclusive and time limited licence to make use of the Software Hexastate PREDICT.
2.2. The Suppliers provision of licence(s) as described above is collectively referred to as „the Services.“
- Time of Delivery
3.1. The Supplier undertakes to render the Services right away when hardware has been supplied to the customer, cf. section 4, section 5, and section 6.4 as the Customer will be able to login into the platform and start the Services themselves.
4.1. This agreement shall be effective from the Date that the invoices is sent to the customer („Commencement Date“). The agreement is binding and non-terminable for an Initial Term which is defined from the order of either the 1, 2, 3 or 5 year prepaid subscription, or individual agreed Initial Term between the Supplier and the Customer.
4.2. Upon expiration of the Initial Term, the Agreement automatically will be extended with the same duration and length as the previous subscription. For clarification purposes; if the Customer has bought a 2 year pre-paid subscription, then it will be extended with another 2 year pre-paid subscription when the subscription is renewed.
- Payment terms
5.1. The Licence Fee is due for payment no later than 8 days after receipt of an invoice. The fee consists of a full pre-payment of the entire upcoming license period.
5.2. Consequently, upon completion of this Agreement, the Supplier is entitled to issue an invoice for the entirety of the Initial Term before commencing the Services, cf. section 2.
5.3. Upon late payment, the Supplier is entitled to interest according to the Danish Interest Act, section 5.1, currently 8,05 %.
5.4. The Supplier is entitled to change the prices on prior written notice of 90 days. If the Customer objects to the price change notified, the Customer may terminate the contract upon expiry of the 90 days from the written notice of the intended price change. The Supplier must be informed of such termination no later than 45 days after the Customer has received the written notice of the intended price change. If the Customer informs the Supplier that it wishes to terminate the contract due to the intended price change, the Supplier may cancel the intended price change, in which case the termination is without effect and the Agreement is upheld.
6.1. Either Party may terminate the contract by written notice according to the provisions in section 5 above.
6.2. Furthermore, either Party may terminate this Agreement effective upon 30 days prior written notice in the event that the other Party enters into liquidation or reconstruction or is declared insolvent or bankrupt or is deemed to be insolvent or unable to pay its debts or makes or enters into any voluntary assignment or other arrangement with or for the benefit of its creditors.
6.3. Either Party may terminate this Agreement for cause if the other Party fails to remedy any material breach within 60 calendar days from the receipt by said Party of a written notice specifying the breach and requiring it to be remedied. For the purposes of this article, a breach shall be considered capable of being remedied insofar as the Party in breach can comply with the provisions in question in all respects other than as to the time of performance.
6.4. Regardless of whether termination occurs due to expiration of an Initial Term, Additional Term or a material breach, cf. section 4.2., the Customer is obligated to cease using the licenced software and services, cf. section 2 above, to the Supplier, upon expiry of the current term, be it an Initial Term or Additional Term, and immediately if the termination occurs for cause.
6.5. Regardless of any other provision in the Agreement, non-payment of the whole or part of the fee, cf. section 2 and section 5, always constitutes material breach and must be remedied within 3 days after the Supplier has requested such remedy by way of e-mail to the last known e-mail adress of the Customer, or through other communication. If such breach is not remedied within the time frame specified, the Supplier is entitled to immediately suspend any active licenses and may terminate the contract at the Suppliers discretion.
7.1. The Parties are mutually obligated to ensure that confidential data is secured through encryption.
7.3. Data generated during the Agreement is owned by the Supplier. Upon request, the Supplier can make data available to the Customer through a REST-API in which the customer will receive an authentication key by the Supplier to gain a secure access to the data.
7.3.1.Hexastate will make the Hexastate Software available to the Customer with as high uptime as possible.
- 188.8.131.52 If a Customer has individual contract of a promised uptime percentage (%) it will by default be measured yearly, excluding planned downtime and any time necessary to implement any updates or other modifications to the Hexastate Software SaaS Components (Uptime Target).
- 184.108.40.206 Hexastate will notify the Customer at least 30 days prior to any planned downtime and will use commercially reasonable efforts to minimize the effect of such maintenance. The Uptime Target shall not apply in the event of any causes beyond the reasonable control of Hexastate or its hosting provider, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, denial of service attacks, failure of the internet generally, or any actions or inactions of the Customer or any third party.
- Calculation of Availability:
Availability = 100 – (Downtime – planned Downtime) / Sums Uptime per Year) * 100
8.1. Information supplied by one Party to the other Party as a result of this Agreement, shall, regardless of whether or not it has been marked ‚Confidential‘ or similiar wording of the same meaning, be held in confidence by the receiving Party.
8.2. This confidentiality obligation should not be considered violated, if and to the extent that the information in question:
- was in the public domain at the time of disclosure,
- has, after disclosure to the receiving Party, become part of the public domain through publication or otherwise, except by breach of this Agreement by the receiving Party,
- was in the possession of the receiving Party at the time of disclosure and was not acquired, directly or indirectly, from the disclosing Party,
- was received by the receiving Party from a third party, provided, however, that such information was not obtained by the said third party, from the other Party to this agreement,
- was disclosed by the receiving Party due to regulatory or governmental requirements, including but not limited to requirements from patent authorities, or due to a court order, or
- was obviously not of confidential nature.
8.3. The supplier can at any time use the Customer logo on its websits and in marketing materials. The Customer can at any time request to have their logo removed on any online media within 30 days of receiving the request from the customer.
9.1. The Parties are liable to each other only for the direct losses caused or contributed to by any action or inaction that amounts to a material breach of this Agreement. No Party can be liable to another for indirect losses, including but not limitied to losses such as loss of profits, lost savings or other incidental or consequential losses.
9.2. If the performance of a Party according to this contract is prevented, obstructed or the cost is increased unreasonably (hardship) as a result of force majeure circumstances, said Party is not liable to the other Party for losses caused as a result of the non-performance. It is the duty of the Party suffering force majeure to provide evidence that its non-performance is due to force majeure.
9.3 The liability can never exceed the Suppliers current insurance limit which can be found on certificate on the following link: https://hexastate.com/wp-content/uploads/2021/11/Topdanmark-insurance-certificate.pdf
- Governing law and jurisdiction
10.1. This Agreement and the validity thereof shall be governed by and construed in accordance with Danish law.
10.2. In the event of a dispute which the Parties are unable to settle amicably, such disputes shall be settled by arbitration via the Danish Institute of Arbitration and in accordance with the Rules of Procedure of said institute. The seat of the Arbitration shall be in Aalborg, Denmark. The language of the arbitration proceedings shall be in Danish.
11.1. All references to days in this Agreement are calendar days.
11.2. All notices according to this Agreement may be sent via e-mail.
11.3. This Agreement in no way intends to include any transfer of intellectual property rights. All intellectual property rights remain with the Supplier.
12. Hardware Terms and Conditions
12.1 Limited warranty and Limited warranty period
12.2 Subject to these Limited Warranty Terms, for the benefit of Customer, the Supplier hereby warrants that the Product will be free from defects in material and workmanship (the “Limited Warranty”). A defect in material or workmanship is referred to herein as a “Defect” and a Product with a Defect is referred to as “Defective”. The Supplier, however, does not warrant that the Products will operate uninterrupted or error free.
12.3 The Limited Warranty validity period for each type of Product (the “Limited Warranty Period”) is set out in the table below. The Limited Warranty Period for an individual Product is calculated from the date of the Original Customer’s purchase of the Product from a reseller as evidenced by the proof of purchase provided by Customer (e.g. receipt or invoice) indicating the date of purchase and the serial number.
PRODUCT LIMITED WARRANTY PERIOD
Hexastate Sensor 1 kHz, 1 year (see chapter 12.3.1 for exclusions)
Hexastate Sensor 6.3 kHz, 1 year (see chapter 2.3.1 for exclusions)
Hexastate Gateway 1 year
Hexastate Gateway with Water and Dust proof casing 1 year
Accessories included in the product Same as the product Accessories sold separately 1 year
12.3.1 Node warranty exclusions Due to the varying ways that the Product(s) can be used and/or configured in various conditions, the battery life is excluded from the warranty.
Hexastate Industrial Node with a non-replaceable battery: The entire unit must be replaced and recycled once the battery runs out of power. The battery is not covered as part of the standard limited warranty period. The prediction for the battery life for Hexastate Sensor is monitored to be up to three (3) years in normal operating conditions.
The normal operating conditions, for the Hexastate Sensor, have been determined as following:
- Environment temperature: 25°C | 77°F
- Data update frequency: Every 30 minutes
- All sensors connected directly to the Hexastate Gateway
- Wirepas diagnostics turned off
Note: Hexastate sensor is designed according to IP68 classification requirements. However, the device is not intended for continuous submersion or underwater use.
12.3.2 Leased sensors only cover replacements at the end of a sensors node expected life cycle upon indications of near-complete battery drainage.
12.3.3 Hardware warranty, whether leased or purchased, does not include free replacements for sensors that break the exclusions listed in section 12. In addition, leasing does not cover free replacements for any hardware – including sensors, gateways, and accessories – that has suffered unconventional damage, including but not limited to: physical trauma, excessive temperatures outside the normal operating range of 10 to 40 Celsius, any kind of liquid or chemical damage, disassembly, magnetic damage, electrical damage, wire damage, getting lost, or theft.
13.1 Unless otherwise separately agreed, the provision of the Support Service shall start on the Effective Date of buying and accepting the terms and conditions.
13.1.1. Support Desk
The Supplier will make available, during Business Hours, from 08:00 am to 16:00 pm CEST support over the Support Desk portal for the purposes of:
- assisting the Customer with the proper use of the Software and Hardware;
- determining the causes of errors in the Software and Hardware; and/or
- fixing errors in the Software and Hardware.
For the sake of clarity, change requests and special extra work are not covered by the Support service. These are covered by in Appendix 1.
13.1.2. Request for Service
1. Request for Service shall be entered into the Support Desk portal and it shall include which can be done by sending an email to email@example.com.
The Support Service may, at Supplier’s discretion, be wholly or partly performed as remote support.