The Things Industries | Terms and Conditions | January 2022
This document contains the terms and conditions of The Things Industries B.V., with its principal office located at Singel 542 in 1017AZ, Amsterdam, the Netherlands and registered with the Dutch Chamber of Commerce under registration no. 64725189 (hereinafter referred to as “TTI”).
These terms and conditions govern the provision by TTI of the ‘The Things Stack’ software solution and its deployment options, which include ‘on-premises’ installation as well as hosted deployment as a ‘software-as-a-service’.
Furthermore, these terms and conditions govern use of the ‘Generic Node’ platform provided by TTI, as well as any relevant deliverables provided therethrough.
These terms and conditions contain multiple components (Modules) which each govern a specific part of the services and solutions provided by TTI:
Module A: General Module B: The Things Stack Software Module C: Generic Node Deliverables
The generally applicable terms and conditions are contained in Module A of this document and shall apply to all agreements concluded with TTI for the provision of the foregoing.
Module B of these terms and conditions shall apply only if and insofar an agreement is concluded with TTI for the provision of the ‘The Things Stack’ software solution.
Module C shall apply only if and insofar an agreement is concluded for the provision of access to and use of the ‘Generic Node’ platform and related deliverables and services.
Module A: General Applicability The provisions of this Module A shall apply to all Agreements concluded between the Parties for the provision of Services by TTI.
Definitions Agreement: the agreement between the Parties for the provision of Services, of which the Quotation, as well as these Terms and Conditions and any service level agreements concluded by the Parties form an integral part. Client Data: any data, including personal data, provided by Client or on behalf of Client in the course of the provision of Services. Client: any legal entity or natural person acting in the course of its profession or business that concludes an Agreement with TTI. Consumer: Client that is a natural person and contracts with TTI outside the course of Client’s profession or business. Custom Deliverable(s): Deliverables developed specifically for Client. Deliverable(s): deliverables to be provided to Client as a part of Generic Node Platform-related Services performed by TTI, which may include Reference Design(s), software programs, hardware, as well as related Documentation and test benches or testing tools, as specified in the Quotation. Documentation: documentation related to and provided with Software and Deliverables. Generic Node Device(s): means the collection of hardware components and designs, and embedded software (Reference Designs), in all its variations, combinations and versions that make up TTI’s ‘Generic Node’. Intellectual Property Rights: all intellectual and industrial property rights, including but not limited to copyrights, (sui generis) database rights, rights to domain names, trade name rights, rights to know-how, trademark rights, trade secrets, model rights, neighboring rights and patent rights. On-Premises Software: Software deployed and provided as ‘on-premises’, meaning that it will be hosted and controlled by Client on Client’s infrastructure. Party/Parties: Client or TTI (singular) or Client and TTI (plural). Quotation: an ordering document or offer provided to Client by TTI (either through the Website or otherwise in writing) for the provision of Services, and any appendices thereto. Reference Design(s): means one or more embedded software and/or hardware reference design files or design examples in source code or encrypted source code format (including schematics, Gerber files, KiCad files, Bill of Material, libraries, applications, drivers), which TTI may provide to Client as part of the Services. SaaS Software: Software deployed and provided as a software-as-a-service, either provided directly by TTI or indirectly through Amazon Web Services in the form of a template, as specified in the Quotation. Services: the services provided by TTI under the Agreement, including but not limited to the provision of Software, the provision of support and maintenance services, the provision consultancy services, the provision of development services and/or provision of related Deliverables, and the provision of Documentation related to the foregoing. Software: the ‘The Things Stack’ standard software solution, provided by TTI under a subscription model or free of charge (Community Edition), which may be deployed as SaaS Software and/or On-Premises Software, as specified in the Quotation. Terms and Conditions: the terms and conditions of this present document. Website: www.thethingsindustries.com.
Order of precedence The Agreement may consist of several documents. In the event of contradictions, the order of precedence as set out below will apply:
In the event of contradictions between the general provisions of Module A of these Terms and Conditions and the other Modules (if applicable), the most specifically applicable Module will take precedence.
Insofar as the different parts of the Agreement do not contain any contradictions, they are supplementary to each other.
Conclusion of the Agreement
The Agreement will come into force on the day indicated in the Quotation and is concluded with TTIs receipt of Client’s acceptance of a Quotation, Client’s completion of the relevant fields contained therein and confirmation of Client’s acceptance, automated or otherwise, by TTI. If no starting date is indicated, the Agreement will come into force upon TTI’s aforementioned confirmation.
If TTI has made an offer on the basis of information provided by Client and this information proves to be incorrect or incomplete, TTI is entitled to dissolve the Agreement or to adjust the offer and prices accordingly, even after an Agreement has been concluded.
In the event that Client does not formally accept TTI's Quotation, but nevertheless creates that impression (e.g. by having TTI carry out certain work), the Quotation will also be deemed to have been accepted and an Agreement will be concluded.
Contrary to the provisions of Section 6:225(2) of the Dutch Civil Code, TTI will not be bound by any deviating acceptance of the offer made, not even if the deviation concerns minor or subordinate aspects of the Quotation.
Client may request TTI to perform certain Services. In all cases, TTI is entitled to refuse such requests from Client.
A Consumer’s right of withdrawal does not apply to Agreements for the provision of Services where performance of the Agreement starts immediately after conclusion, if:
- The performance has started with Consumer’s express prior consent; and
- During conclusion, Consumer has declared to waive its right of withdrawal as soon as Supplier has fulfilled the Agreement.
Fulfillment of the Agreement After the Agreement has been concluded, TTI will apply all commercially reasonable efforts to fulfill its obligations under the Agreement with due care and skill and within the agreed timeframe, or within a reasonable period of time if no timeframe has been agreed. TTI reserves the right to deliver Services under the Agreement in phases, insofar as the nature of those Services allows. TTI has the right to engage third parties for the performance of the Agreement. Any related costs will only be borne by Client if this has been agreed in advance. Any (delivery) dates announced by TTI or agreed between the Parties are indicative and do not constitute strict deadlines (in Dutch: ‘fatale termijnen’).
Additional work For work falling outside the Quotation (“Additional Work”), TTI may, with Client’s prior consent, charge on a time and materials basis, at TTI’s standard hourly rates. No prior consent from Client is required for Additional Work if TTI can demonstrate that it is reasonably necessary for the fulfillment of the Agreement, or which reasonably follows from Client's instructions. Such Additional Work will be charged on a time and materials basis, at TTI’s standard hourly rate. In the event TTI is requested to carry out Additional Work, TTI may also opt to issue an additional Quotation for this purpose. Refusal by TTI of a request for Additional Work will under no circumstance constitute grounds for termination or dissolution of the Agreement.
Cooperation Client will provide all reasonable cooperation required for the fulfillment of the Agreement. Such cooperation includes that Client will do and refrain from doing whatever is reasonably necessary and desirable to enable the timely and correct fulfillment of the Agreement. In particular, Client will ensure that all information and material of which TTI indicates that these are necessary or of which Client should reasonably understand that these are necessary for the fulfillment of the Agreement, are provided to TTI in a timely manner. Cooperation also includes providing access to any necessary digital environments and physical locations, as well as adhering to all reasonable instructions and advice given by TTI in connection with fulfillment of the Agreement. If Client does not cooperate or provide information and materials in the manner referred to in the preceding paragraph, TTI will be entitled to pass on the resulting costs to Client and to suspend performance of the Agreement. Client represents and warrants that all the information and materials it provides to TTI are complete, accurate and up to date. TTI has the right, but not the obligation, to examine this information and materials for accuracy and completeness. In the event of faults or errors, TTI is entitled to suspend the work and pass on the resulting costs to Client. If Client makes certain information carriers, electronic files or other materials available to TTI, Client represents and warrants that these are free of viruses, malware or defects. Client indemnifies and holds harmless TTI from all claims relating to or arising from Intellectual Property Rights to materials provided by Client.
Prices All prices quoted by TTI are in euros and are exclusive of VAT and other government levies. If a price is based on information provided by Client and this information proves to be incorrect, TTI is entitled to adjust the prices accordingly, even after the Agreement has already been concluded. TTI is entitled to increase the prices annually, either on the basis of the Dutch CBS Consumer Price Index, or a maximum of five percent (5%), without this resulting in a possibility for Client to terminate the Agreement. TTI is authorized to adjust the prices as a result of changes in legislation and regulations, without this resulting in a possibility for Client to terminate the Agreement. Prices may be increased by TTI with immediate effect as a result of changed rates charged by suppliers for products or services that are charged pro rata to Client (such as licensing or hosting costs), without the possibility for Client to terminate the Agreement. If TTI increases its prices outside the cases described in this article, it will be regarded as an amendment as meant in Article A.19. Notwithstanding the preceding paragraphs of this article, if Client is a Consumer, it will have the right to terminate the Agreement if prices are increased within three months of the conclusion of the Agreement.
Payment The Services may be subject to a monthly or yearly subscription fee, as specified in the Quotation. In consideration of the Services provided, Client will pay the amounts as set out in the Quotation. Depending on the Service provided, the payable amounts may be calculated on the basis of the units of measure specified in the Quotation, which may include, without limitation: - the amount of end-user licenses to the Software available to Client under the Agreement; - the amount of end-device licenses to the Software available to Client under the Agreement (i.e. the number of devices Client may connect to and use in conjunction with the Software); and - time and material required for custom development of Deliverables. TTI will send an invoice for all amounts due and is entitled to invoice electronically and in advance. TTI is also entitled to invoice in parts. All invoices are due and payable within fourteen (14) days of the invoice date. Client is not entitled to set off any payment obligation incumbent on Client against any claim against TTI for any reason. If Client fails to pay an invoice within the payment term stated in Article A.9.2, Client will – unless it is a Consumer – be in default without prior warning or notice of default being required. TTI will in such a case be entitled to charge statutory interest for commercial transactions on the amount or (if higher) an interest of two percent (2%) per month. If Client fails to pay the invoice amount after a reminder or notice of default, TTI is entitled to engage a third party for the purpose of collection of the amounts due and/or to suspend the Services until the outstanding amounts have been paid in full. In such a case, both judicial and extrajudicial costs (including the costs of lawyers, lawyers, bailiffs and collection agencies) will be borne by Client.
Support Documentation regarding implementation, troubleshooting and general use of the Software is provided through the Website. In addition to the online documentation and except as otherwise provided for in the Service Level Agreement, TTI provides support to Client through use of a helpdesk. The helpdesk can be reached through the Website. TTI will assume that Clients will consult the online documentation before contacting the helpdesk. The TTI helpdesk may refer Client back the documentation in case Client’s question or issue can be answered or solved by consulting the documentation. TTI will use reasonable endeavors to respond to each support request as quickly as possible. Yet, unless agreed otherwise in the Service Level Agreement, it cannot warrant that a response or solution will be provided by the helpdesk in a set amount of time, as such response times are dependent on the nature and complexity of the question or issue at hand.
Use of the Services It is prohibited to use the Services and/or any components or results thereof in a manner that is in violation of these Terms and Conditions or applicable laws and regulations. Additionally, using the Services in a manner that may cause hindrance or loss and/or damage to TTI or any third party is expressly not permitted. It is explicitly prohibited to use the Services and/or any components or results thereof (even if legally permitted to do so): - to wilfully distribute malware or any other harmful software; - to store or make available information or materials that infringe upon any Intellectual Property Rights or other third-party rights; - to promote or provide instructions or information about how to engage in illegal conduct, commit illegal activities or promote physical harm or injury; - to store or make available materials that are threatening, libelous, defamatory, obscene, misleading, offensive or unlawful in any way whatsoever; - in any manner that may cause hindrance for other users of the Software, or that may damage and/or impede the systems and networks of TTI or third parties.
If TTI determines that Client has violated this Article A.11 or applicable laws and regulations, or receives a complaint in this regard, TTI may take measures to end the violation. These measures may include the suspension or termination of access to the Software, or termination of the Agreement. If Client is a Consumer, measures by TTI as mentioned in this Article A.11.3 are only possible in the form of removal or blocking of the unlawful materials. However, in such a case TTI’s statutory (suspension) rights shall continue to apply in full. If, in TTI's opinion, the operation of the computer systems or network of TTI or third parties and/or provision of services via the Internet is obstructed, impaired or otherwise at risk, in particular as a result of the transmission of excessive amounts of data, leaked personal data or virus activity, malware and similar harmful software, TTI is authorized to take any and all measures it deems reasonably necessary to avert or prevent such risk. These measures include, but are not limited to, suspension of the Services and termination of the Agreement. TTI is entitled to disclose the name, address and other identifying data of Client or the end user concerned to a third party who complains that Client has violated its rights, provided that the applicable legal and/or jurisprudential requirements have been met. TTI will be entitled to report any acts that may be punishable as criminal offences. In doing so, TTI may provide the relevant Materials and all relevant information about Client and any involved third parties to the competent authorities and perform all other acts that these authorities request TTI to perform in the context of an investigation. Client will follow all reasonable instructions issued by TTI in relation to the use of the Services. TTI may recover from Client any loss and/or damage sustained as a result of Client’s violations of this Article A.11. Client will indemnify TTI and hold TTI harmless against any and all third-party claims pertaining to loss and/or damage arising from a violation of this Article A.11.
Privacy and data protection Where terms used in this Article A.12 correspond to definitions from article 4 of the GDPR, these terms will be assigned the meaning of the definitions recorded in the GDPR. TTI processes personal data provided by or via Client exclusively on the instructions of Client within the framework of the execution of the Agreement and for the purposes determined in writing with further approval, and thereby acts in accordance with the GDPR.
The processing relates to the processing objectives set by Client with regard to the categories of personal data and data subjects as described in the Agreement.
TTI shall endeavor to take appropriate technical and organizational measures to protect personal data that are processed for the benefit of Client against loss or any form of unlawful processing.
TTI shall only carry out the processing on and in accordance with the written instruction of Client. TTI shall not further process the personal data for its own purposes.
TTI shall inform Client if, in its opinion, instructions are contrary to the applicable legislation with regard to the processing of personal data or are otherwise unreasonable. TTI shall, if this is reasonably within its sphere of influence, provide assistance to Client in fulfilling its legal obligations. This concerns the provision of assistance in the fulfillment of its obligations under articles 32 to 36 of the GDPR, such as the provision of assistance in carrying out a Data Protection Impact Assessment (DPIA) and prior consultation on high-risk processing. TTI may charge the costs incurred for this to Client. In the event of a personal data breach as referred to in article 4 paragraph 12 of the GDPR, TTI shall notify Client without undue delay after discovering the data breach. TTI will take reasonable measures to limit the consequences of the personal data breach and to prevent further and future personal data breaches. The notification to Client shall include, as far as known at that moment, at least: a. the nature of the personal data breach; b. the (likely) consequences of the personal data breach; c. the categories of personal data concerned; d. if and which security measures have been taken to protect the personal data; e. the measures taken or proposed to be taken to address the personal data breach and prevent future personal data breaches; f. the categories of data subjects concerned; g. approximate number of data subjects concerned; and h. where necessary the deviating contact details to address the notification. Client is responsible at all times for notification of any personal data breaches. However, TTI will provide assistance to Client, taking into account the nature of the processing and the information available to him, in regard to (new developments about) the personal data breach. In the event a data subject makes a request to exercise his or her legal rights under the GDPR (articles 15-22) to TTI, TTI shall pass on such request to Client. TTI may inform the data subject of this passing on. Client will then further process the request independently. TTI will, if Client requires this, cooperate as far as possible and reasonable. TTI may charge Client for reasonable incurred costs. Client has the right to verify compliance by TTI, of all points under this article, by means of an audit performed by an independent third party, who is bound by confidentiality obligations. The audit may only be performed in case of a reasonable and well-founded suspicion of violation of this article, which is communicated in writing to TTI. The audit findings shall be assessed by the Parties in joint consultation and may or may not be implemented by either Party or jointly. The costs of the audit shall be borne by TTI in case the audit reveals discrepancies in the compliance of TTI to this article, which are attributable to TTI. In all other cases the costs of the audit shall be borne by Client. Client authorizes TTI to involve subprocessors in providing the services under the Agreement. At the explicit request of Client, TTI will inform Client about the subprocessors engaged by it. Client is entitled to object in writing on reasonable grounds to a specific subprocessor(s). If Client makes an objection, the Parties will consult to reach a solution. TTI imposes at least the same obligations on the engaged subprocessor(s) as agreed between Client and TTI under this article. TTI may process the personal data in any country within the European Economic Area (EEA) and outside the EEA, provided that country ensures an adequate level of protection of personal data and complies with other obligations imposed on it under this Data Processing Agreement and the GDPR, including the availability of appropriate safeguards and enforceable data subject rights and effective legal remedies for data subjects. At the explicit request of Client, TTI will inform Client about the countries concerned.
Confidentiality The Parties will treat as confidential the information they provide to each other before, during or after the performance of the Agreement if this information has been marked as confidential or if the receiving Party knows or should reasonably assume that this information was intended to be confidential (hereinafter: “Confidential Information”). The Parties also impose this obligation on their employees and on the third parties engaged by them for the performance of the Agreement. These provisions continue to apply after the Agreement ends for any reason whatsoever and for as long as the disclosing Party has the right to invoke the confidential nature of the information. Each Party will use the same degree of care in protecting the Confidential Information of the disclosing Party as it uses in protecting its own Confidential Information, but in no event less than reasonable care. This Article A.13 will not apply to any information which: - is or becomes generally available to the public other than as a result of a disclosure by the receiving Party in breach of the Agreement; - was within the receiving Party's possession prior to its disclosure to it by or on behalf of the disclosing Party; - becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party not under obligation to keep such information confidential; or - is developed independently by the receiving Party. In the event that a receiving Party becomes legally compelled to disclose any Confidential Information provided pursuant to the Agreement, such receiving Party will provide the disclosing Party with prompt written notice so that such disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of the Agreement. Any Confidential Information provided hereunder will remain the exclusive property of the disclosing Party. Promptly after the expiration or termination of the Agreement for any reason, each receiving Party will deliver to each relevant disclosing Party all originals and copies of any material in any form containing or representing the Confidential Information in its possession or will destroy the same at the request of the disclosing Party relative to such Confidential Information.
Intellectual Property Rights Unless stated otherwise in the Agreement, all Intellectual Property Rights and other proprietary rights relating to the provision of Services, all related Software and Deliverables and other materials provided by TTI under the Agreement (hereinafter: “TTI IP”), will be exclusively vested in TTI or its licensors. Client shall only receive the rights of use to the relevant Software and/or Deliverables as specified in the Agreement. Client and or its licensees (if any) not permitted to remove or modify any designation of Intellectual Property Rights or to remove any indications of confidential nature from TTI IP, without prior written permission from TTI to do so. TTI may take (technical) measures to protect the TTI IP, or to ensure Client’s compliance to limitations (e.g. end-user license volumes) specified in the Agreement. If TTI has taken such measures, Client is not permitted to evade or remove them. Client is not entitled to make changes to the TTI IP and is not entitled to a copy of any source code, except where this is prescribed by mandatory law or explicitly permitted under the Agreement. Client is not permitted to reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any part of the Software and Services, except as prescribed by mandatory law or explicitly permitted under the Agreement. TTI is allowed to use Client’s company name, logo, trademark and general description for the purposes of marketing its Services. If Client provides TTI with comments or suggestions regarding the Services, Deliverables, TTI’s Confidential information or other materials provided by or belonging to TTI (for example for the modification, correction, improvement or enhancement thereof), then Client grants to TTI a non-exclusive, irrevocable, worldwide, royalty-free license, including the right to sublicense the right to use, disclose and commercially exploit such comments or suggestions in any manner TTI chooses – which right shall endure after termination of the Agreement.
Consultancy With respect to TTI IP supplied by TTI under the Agreement in the context of consultancy Services (hereinafter: "Consultancy Materials"), Client will only acquire the non-exclusive, non-transferable and non-sublicensable rights arising from the scope of the Agreement or as further granted. Consultancy Materials shall only be used by Client for its own use and the specified purpose, unless otherwise agreed. More specifically, Client will only use the Consultancy Materials provided by TTI for the purposes specified in the Agreement. In the event of a breach of this provision, TTI will be entitled to charge the standard rate applied by TTI for the relevant use of the Consultancy Materials, with a surcharge of fifty percent (50%) for the unauthorized use by Client, without prejudice to TTI's right to claim (additional) damages. In addition, TTI shall in that case have the right to revoke the license to use the Consultancy Materials. TTI will supply Consultancy Materials consisting of reports, data overviews or records if this is a standard part of the Service provided or if the Parties have agreed this in writing. The form and frequency of the aforementioned reports, data overviews or records shall be laid down in the Agreement. TTI cannot guarantee that any such (computerized or automated) Consultancy Materials supplied in the context of this Agreement will be completely free of errors.
Liability TTI's liability for loss and/or damages resulting from a failure in the performance of the Agreement, an unlawful act or otherwise is limited to the amount (excluding VAT) that Client has paid TTI under the Agreement during the two (2) months prior to the event causing the damages. TTI can only be liable towards Client for direct damages as a result of an attributable failure in the performance of the Agreement. TTI' liability for indirect damages is excluded. For the purposes of this Agreement, indirect damages include lost savings, loss of data, loss of profit, damage to reputation and damage due to business interruption. TTI's liability for an attributable failure to perform the Agreement only arises if Client gives TTI prompt and proper written notice of default, giving TTI a reasonable time period to remedy the default, and TTI continues to fail to perform its obligations even after that time period. The notice of default must contain as detailed a description of the breach as possible so that TTI is able to respond adequately. The limitation of liability as referred to in the previous paragraphs of this Article A.15 will lapse if and to the extent that the damage is the result of intent or deliberate recklessness on the part of TTI. Any right to compensation of damages is subject to the condition that Client notifies TTI in writing of the damage within thirty (30) days after discovery. Client expressly acknowledges and agrees that Services provided free of charge (such as the free of charge provision of Software), as well as any Deliverables, are provided on an “as is” and “as available” basis and that TTI assumes no liability whatsoever for any kind of damages arising from Client’s use of such free of charge Services or the Deliverables, unless caused by the wilful misconduct or deliberate recklessness of TTI’s management. TTI will use all commercially reasonable efforts to ensure that all Software and Deliverables provided under the Agreement, as well as any other materials provided in the course of the Agreement are current and accurate but assumes no risk for any use Client may wish to make thereof. Any limitations of liability as contained in the Agreement shall not apply if and to the extent Client is a Consumer.
Force majeure TTI cannot be obliged to perform any obligation under the Agreement if the performance is prevented due to force majeure. TTI is not liable for any loss and/or damage due to force majeure. Force majeure is considered to exist in any event in case of power outages, Internet failures, telecommunication infrastructure failures, network attacks (including D(DOS) attacks), attacks by malware or other harmful software, civil commotion, natural disaster, terror, mobilisation, war, import and export barriers, strikes, stagnation in supplies, fire, floods and any circumstance whereby TTI is not enabled to perform or prevented from performing by its suppliers, irrespective of the reason. If a force majeure situation has lasted for more than ninety (90) days, both parties will be entitled to give notice to terminate the Agreement in writing with immediate effect. The Services which in that case have been delivered by TTI prior to the occurrence of the force majeure situation and during the force majeure situation will be paid for on a pro rata basis.
Term and termination
The term of an Agreement within the framework of a defined one-off project ends by completion of that project.
The term of an Agreement within the framework of a continuing performance agreement will be specified in the Agreement. If no term is stated in the Agreement, it will be deemed to have been entered into for an initial period of twelve months.
If the Agreement has been entered into for a definite period, neither Party will be permitted to terminate the Agreement in the interim, except as expressly provided for in the Agreement.
If Client is not a Consumer, and the Agreement is entered into for a definite period of time and falls outside the scope of Article A.17.1, it will each time be tacitly renewed at the end of that term for the same period of time, unless the Agreement is terminated in writing by one of the parties at the end of the term with observance of a notice period of one month.
If Client is a Consumer, and the Agreement is entered into for a definite period of time and falls outside the scope of Article A.17.1 it will, after the initial term, convert into an Agreement with an indefinite duration.
If the Agreement is entered into for an indefinite period of time, either Party may terminate the Agreement in writing after an initial period of twelve months, subject to one (1) month’s notice if Client is a Consumer and three (3) months' notice if Client is not a Consumer.
TTI may immediately suspend its obligations under the Agreement or terminate the Agreement in writing, without notice of default being required, if Client is not a Consumer and:
- Client breaches the terms of the Agreement or acts contrary to the applicable laws and regulations; or
- Client is subject to bankruptcy proceedings, applies for or is granted a suspension of payments, has its activities terminated or has its business wound up.
If Client is a Consumer, the measures specified in Article A.17.7.a may only be taken by TTI after it has notified Client of its breach, allowed it a reasonable time to remedy such breach and Client is still in breach after this period.
Suspension by TTI of its obligations under the Agreement occurs, insofar as such suspension is explicitly provided for in the Agreement, without prejudice to its other rights and remedies under the Agreement or applicable law, unless Client is a Consumer.
In the event that the Agreement is terminated, TTI's claims against Client, including those for any Additional Work, will be immediately due and payable.
Any dissolution of the Agreement, in full or in part, does not affect any sums paid by Client under this Agreement. As such, no reversal of payments shall take place. Client may only dissolve the part of the Agreement that has not yet been executed by TTI.
Audit TTI shall have a right to engage an independent third party bound by confidentiality obligations to verify Client’s compliance with its obligations under Article B.3 and Module C of this Agreement. Such audit shall: - be conducted at Client’s facilities at reasonable times upon reasonable prior written notice as needed to verify Client’s compliance with the aforementioned obligations under this Agreement; and - shall not unreasonably interfere with Client’s normal business operations. In the event the results of the audit show that Client has violated relevant parts of the Agreement, Client shall, without prejudice to other rights and remedies TTI may have under the Agreement or the applicable law, compensate TTI for all reasonable costs involved in the audit. This Article A.181 shall survive for one (1) year after expiration or termination of the Agreement.
Amendments TTI has the right to amend (parts of) these General Terms and Conditions. TTI will notify Client of any amendments at least two months in advance. If an amendment to the General Terms and Conditions announced by TTI adversely affects Client's position, Client may object to this in writing, stating its reasons. In the event of an objection, TTI may reconsider the amendment and decide to withdraw it in whole or in part. If TTI decides to implement the amendment despite Client's objection, Client will be entitled to terminate the Agreement at the latest by the date on which the amendment takes effect, subject to one month's notice. In the event of termination on this ground, TTI will refund, pro rata, the unused part of any fees prepaid by Client in relation to licenses for OTAU Services If Client does not object in writing to the proposed amendment within one month of TTI's announcement and motivates its objection, Client will be deemed to have agreed to the amendment. Amendments of minor importance, amendments that are necessary due to amended laws and regulations and amendments that are to the benefit of Client may be implemented by TTI without prior notice. In the event of such changes, Client does not have the right to object and/or terminate the Agreement.
Applicable law The Agreement is exclusively governed and construed by Dutch law. If Client is a Consumer, it shall also enjoy the protection of the mandatory provisions of the law applicable where Client has its residence. Unless provided otherwise by mandatory law, any disputes arising from or in connection with the Agreement will be submitted to the competent court in the district in which TTI has its registered office.
Miscellaneous provisions
Neither Party may assign the rights and obligations under this Agreement to a third party without the written consent of the other Party. For the purposes of this Article A.21.1, a change in the persons or entities that directly or indirectly control fifty percent (50%) or more of the equity securities or beneficial or voting interest of Client’s business shall be considered an assignment by Client and shall require the TTI’s prior written consent, which shall not be unreasonably withheld.
Notwithstanding the foregoing, TTI has the right to transfer its rights and obligations under the Agreement without consent to a parent entity, sister entity or subsidiary entity or to a third party that takes over the Services or the relevant business activities of TTI, without Client’s prior approval or consent. TTI will inform Client as soon as possible if such a transfer has taken place.
If a provision in the Agreement proves to be null and void, voidable or otherwise invalid, this will not affect the validity of the entire Agreement. In such a case, the Parties will determine a new provision(s) to replace it, which will give shape to the intention of the original provision as far as is legally possible.
Where this Agreement refers to written communication, this includes communication by e-mail provided that the identity of the sender and the integrity of the content is sufficiently established.
In the event of disputes, TTI's administration, communication and log files will be deemed to be authentic evidence, subject to evidence to the contrary from Client, unless Client is a Consumer.
Module B: The Things Stack Software Applicability The provisions of this Module B shall apply to the Agreement if and to the extent that the Services provided under the Agreement involves the provision by TTI of Software.
Software license If the Quotation specifies the provision of Software, Client will, on the condition that Client fully complies with its (payment) obligations under the Agreement (if any) – and unless Parties agreed otherwise in writing – acquire a non-exclusive, non-transferable, non-sublicensable and limited license to use the Software as specified in the Quotation in strict accordance with and for the duration of the Agreement and in accordance with the relevant Documentation.
On-Premises Software The provisions of this Article B.3 shall apply if and to the extent that the Agreement involves the provision of On-Premises Software. Upon completion by Client of its first related payment obligation (if any), TTI will, in accordance with the Quotation and subject to the limitations specified therein, provide Client with the license keys required to activate and use the On-Premises Software, by way of the e-mail address(es) specified by Client in the Agreement. Client itself is fully responsible for hosting, management and use of the On-Premises Software. The On-Premises Software is provided “as-is” and TTI will have no further obligations or responsibilities in relation thereto after delivery of the license keys as specified in the previous paragraph, aside from support as described in Article A.10. Unless the Agreement provides otherwise, the units of measure specified in a Quotation for On-Premises Software shall each grant Client the right to install one (1) instance of the On-Premises Software on a production environment owned or operated by Client. TTI may, from time to time, release new versions of the On-Premises Software, which Client may install at its sole discretion. Such updates or upgrades are included in the license provided to Client and may result in a change in the functionality of the On-Premises Software.
SaaS Software Accounts The provisions of this Article B.4 shall apply if and to the extent that the Agreement involves the provision of SaaS Software. Accounts are required in order to access and use the SaaS Software. Upon completion of the first related payment by Client, TTI will, in accordance with the Quotation and subject to the limitations specified therein, provide Client with login instructions for its account(s). The password associated with an account may be changed by Client’s relevant end-user employee. In such in event it is the end-user’s (and thus Client’s) responsibility to ensure an appropriately secure password is chosen. Accounts and associated login information are strictly personal and may not be shared with other persons. Client and/or its end-user must keep the login information secret. TTI has the right to assume that all acts performed following authentication of the accounts as described in this Article B.4 have been performed under the supervision and with the approval of Client. Client is obliged to notify TTI immediately if it suspects or discovers abuse of and/or unauthorized access to its account(s). If login details for an account are lost or leaked, Client will immediately take all measures that are reasonably necessary and desirable to prevent misuse of the account. Such measures may include changing the password or deactivating the account. Client shall also notify TTI immediately of such an occurrence, so that additional measures can be taken by TTI to prevent misuse of the account – to which TTI is hereby fully authorized.
SaaS Software availability and maintenance The provisions of this Article B.5 shall apply if and to the extent that the Agreement involves the provision of SaaS Software. TTI will use all commercially reasonable endeavors to ensure continuous availability of the SaaS Software but cannot provide any guarantees in this regard, unless the Parties agree otherwise by way of a separate service level agreement. Measures taken by TTI under circumstances as described in Article A.11 may result in a temporary interruption in the availability of the SaaS Software. From time to time, TTI may perform maintenance on the SaaS Software and make changes to the SaaS Software in the form of updates or upgrades. Such updates or upgrades are included in the license provided to Client and may result in a change in the functionality of the SaaS Software. The performance of maintenance-related activities may result in interruptions in the availability of the SaaS Software. In the event TTI is able to foresee certain maintenance-related activities resulting in such interruptions, it will apply reasonable endeavors to ensure the activities do not take place during peak-hours – but instead during times when the demand for access to the Services is lowest. TTI will use reasonable endeavors to notify Client of all planned maintenance-related activities at least two (2) days in advance. Emergency maintenance may still occur at any time, without prior notification of Client. Updates and upgrades to the SaaS Software are performed at times to be determined by TTI. Client will not be able to use an older version of the SaaS Software once an update or upgrade has been performed. Nor will Client have any right or claim to an update or upgrade that was announced by TTI but was not performed.
SaaS Software Client Data and back-ups The provisions of this Article B.6 shall apply if and to the extent that the Agreement involves the provision of SaaS Software. All Client Data processed through the Software will remain the property of Client. TTI will not make any proprietary claims with regard to any such Client Data. Client provides TTI with a non-transferable – and as far as necessary for performance of the Agreement – sublicensable license to use such Client Data for the duration of the Agreement, insofar this is required for the provision of the Services. TTI will make a back-up of all Client Data once every day. These back-ups are made as a precaution for technical failures or disruptions on the side of TTI. Unless agreed otherwise by way of a separate service level agreement, TTI does not provide a back-up service and is not held to restore specific Client Data or on Client’s request (for example when Client has accidentally removed specific Client Data). If TTI nevertheless decides to honor such a request, it may charge Client with all reasonable costs incurred. Upon termination of the Agreement, TTI will have the right to remove or destroy all Client Data. TTI may, at the request of Client, assist in exporting Client Data. However, Client acknowledges that it remains solely responsible for making back-ups of any Client Data it wants to keep past the date of termination of the Agreement.
Module C: Generic Node Deliverables Applicability The provisions of this Module C shall apply to the Agreement if and to the extent that the Agreement involves the provision by TTI of Deliverables as part of the Services.
License to use the Deliverables On the condition that Client fully complies with its (payment) obligations under the Agreement (if any), TTI grants to Client a non-transferable, non-sublicensable (except as expressly set forth herein), non-exclusive, perpetual, world-wide license to use the Deliverables strictly as set forth in the Agreement. Client may: - design with, parameterize, compile, route, and generate programming files and netlists with the Deliverables for implementation in Generic Node Devices; and - if and insofar as the Deliverables concern Reference Designs provided in source code format, modify and create derivative works, in whole or in part, of the Deliverables for implementation in Generic Node Devices – with the understanding that such works shall at all times remain within the scope of the Agreement.
Client may, with the express, prior, written approval of TTI: - manufacture, distribute, sell or otherwise market products (i.e. Generic Node Devices) containing one or more Deliverables to its own customers; - sublicence its rights under Article C.2.2 to third-party contractors that provide Client with design, testing, or integration services with regard to Generic Node Devices, but only if and insofar such is strictly required for the performance of those services; - if and insofar as the Deliverables concern Reference Designs provided in source code format, provide the Deliverables to its own customers in an encrypted source code format, and sublicense to its own customers the right to: i. internally evaluate such Deliverables; ii. use the Deliverables in accordance with Article C.2.2.a; and/or iii. use the Deliverables in accordance with Article C.2.3.a. Client ensures that any use of the Deliverables by Client’s contractors or customers as specified under Article C.2.3 shall occur in accordance with the Agreement and under the responsibility and liability of Client. Client shall indemnify TTI and hold TTI harmless from any and all claims and damages resulting from use of Deliverables by such contractors and customers in contravention of the Agreement, with the inclusion of reasonable attorney’s costs. Client shall ensure that such contractors and customers are bound by confidentiality obligations that are at least as strict as those contained in the Agreement.
Intellectual Property Rights embodied in Deliverables All Intellectual Property Rights embodied in the Deliverables, including enhancements, corrections, improvements, modified versions, or derivative works thereof, in whole or in part, that is created (a) solely by or on behalf of TTI, or (b) by TTI and Client jointly shall be the sole and exclusive property of TTI. Subject to foregoing sentence, if Client is granted rights under Section 2.2(b) above and Client independently modifies the Deliverables, Client will own all Intellectual Property in any such modification. If Client agrees to transfer to TTI all Intellectual Property Rights that Client may otherwise have in such Deliverables and to assist and cooperate with TTI in all reasonable respects: - in actions to establish, transfer, or maintain such ownership rights, including executing documents associated therewith; and - in actions of enforcement of such ownership rights. Client agrees to waive any and all moral rights related to TTI's Deliverables described above, including without limitation any and all rights of identification of authorship and any and all rights of approval, restrictions or limitation on use, or subsequent modification. Client recognizes that TTI is or may be independently developing for commercial use products that may be complementary to or competitive with products of Client products of Client or its customers and may in the future independently develop competitive products. Nothing in this Agreement shall limit TTI’s independent development and marketing of any products or systems. This Agreement shall not prevent TTI from undertaking discussions with third parties, including competitors of Client or its customers, provided that in all instances TTI does not do so in breach of confidentiality obligations under the Agreement. In the event the Agreement specifies that the Intellectual Property Rights in relation to (a) Custom Deliverable(s) (as defined below) are to be transferred to Client, such transfer will occur on the condition that Client has fulfilled all its payment obligations under the Agreement, by way of a separate deed of assignment to be concluded between the Parties, which document will form an integral part of the Agreement.
Installation of Deliverables Unless otherwise agreed, Client will be responsible for installation of any Deliverables.
Delivery of software Deliverables and Reference Designs Upon conclusion of an Agreement that concerns the provision of Deliverables, not being Deliverables in the form of hardware or Deliverables in the form of software that are already embedded in hardware, TTI will provide Client with access to the agreed Deliverables: - in the event it concerns Deliverables that resulted from custom development Services as meant in Article C.6 – in a manner to be agreed on by the Parties, where if no agreement has been reached, the Deliverables will be provided by e-mail; Or - In the event it concerns any other Deliverables than as meant in the subparagraph above – by way of TTI’s public GitHub repository.
Development services TTI may offer Client Services related to the custom development of Deliverables (hereinafter: “Custom Deliverables”). Article C.6 up until Article C.9 shall apply only if and to the extent that the Agreement involves the provision of Services for the development of Custom Deliverables. After the Agreement involving the development of Custom Deliverables has been concluded, the development of the Custom Deliverable will be carried out as soon as reasonably possible, unless agreed otherwise. TTI may independently determine the location at which the work in question is to be carried out and is entitled to engage subcontractors. TTI will develop the Custom Deliverable with due care on the basis of the Quotation, as well as the data, instructions and source materials to be provided by Client. TTI will apply all commercially reasonable efforts to develop and deliver the Custom Deliverable within the time period(s) specified in the Quotation. TTI is independent in the performance of the Agreement. However, Client will be free to provide TTI with instructions as referred to in article 7:402 of the Dutch Civil Code. TTI will keep Client informed on a bi-weekly basis of the progress of the development of the Custom Deliverable. In doing so, TTI will indicate whether the Custom Deliverable is expected to be completed within the time periods specified in the Quotation. The source code (if any) of Custom Deliverables will only be made available to Client if this has been explicitly agreed to by both Parties in writing or as provided for in mandatorily applicable law.
Development process The Parties will, in consultation, specify the functional requirements of the Custom Deliverable in a statement of work contained in the Quotation or by means of a separate document, which shall form an integral part of the Agreement (hereinafter: “SOW”). TTI will apply all commercially reasonable efforts to carry out the SOW and develop a version of the Custom Deliverable that complies with the SOW and deliver the Custom Deliverable for an acceptance test within the time period(s) specified in the Quotation. Unless explicitly stated in the Agreement, TTI cannot guarantee or ensure compliance of the Custom Deliverable with any sort of certification standards. After the Agreement involving the development of Custom Deliverables has been concluded, the Parties will appoint contact persons who will be responsible for: the mutual exchange of information between Parties; providing general support; and periodic consultations on the progress of the Custom Deliverable. Delivery and acceptance TTI will deliver the Custom Deliverable if, in its professional opinion, it complies with the SOW and is suitable for use. Unless provided otherwise in the SOW, Client will evaluate the delivered Custom Deliverable within seven (7) days after delivery and accept or reject it in accordance with the acceptance criteria specified in the SOW. If Client does not reject the delivered Custom Deliverable within this time period, it will be deemed to have been accepted and deemed to conform to the SOW. Acceptance of the delivered Custom Deliverable will be deemed to have taken place if Client: - approves the delivered Work (in writing); - uses the delivered Custom Deliverable for production purposes, including but not limited to the transfer of the Custom Deliverable to a production environment; or - does not reject the Custom Deliverables within the aforementioned period, has not applied for a revision round and/or has not objected to delivery within the time period mentioned in Article C.8.1. If the Custom Deliverable is delivered in stages, Client will, after completion of each stage, provide its acceptance or rejection of the part of the Custom Deliverable of that stage in the manner as stipulated above. Client may not base a rejection in a later phase on aspects approved in an earlier phase. If Client rejects the delivered Custom Deliverables in whole or in part, TTI will apply all commercially reasonable efforts to remove the reason for rejection as soon as possible. TTI may do this by revising the Custom Deliverable or by stating the reasons why the rejection is unjustified. Client will then have seven (7) days to approve or reject the revision or motivation. Client may only reject the Custom Deliverable on the grounds of substantial deviation from the SOW. If objections with regard to the Custom Deliverable concern only minor aspects, the Custom Deliverable will be deemed to have been accepted subject to the proviso that these objections will still be lifted within a reasonable period of time. Deviations from the SOW that were explicitly requested by Client will never constitute grounds for rejection of the Custom Deliverable. If Client continues to reject all or part of the Custom Deliverable delivered after a revision or motivation, TTI is entitled to charge reasonable additional costs for all subsequent revisions. If after at least one revision round a Party indicates that it does not or no longer consider further revisions to be useful, both Parties are entitled to terminate the Agreement (or the part of it relating to the Custom Deliverables). In that case, Client will only be obliged to reimburse the costs incurred by TTI and the work already carried out, but Client will not be entitled to use or continue to use the Custom Deliverable. Delivery of Custom Deliverables in the form of software or Reference Designs shall occur as described in Article C.5. Provisions specific to the delivery of Custom Deliverables in the form of hardware (hereinafter: “Custom Hardware”) are contained in Article C.9.
Delivery of and warranty on Custom Hardware The risk of loss, theft or damage to the Custom Deliverables in the form of hardware will pass to Client when the Custom Hardware is delivered by TTI to an agreed address and/or an agreed representative or contact person of Client. Client will inspect the delivered Custom Hardware for visible damage and report such damage to TTI within five (5) days. Client will substantiate its report with sufficient evidence to allow TTI to assess the merits of the report. If Client does not report the damage to TTI within the aforementioned time period, the Custom Hardware is deemed to have been delivered without damage (e.g. damage from transportation). After the foregoing inspection, any further evaluation and acceptance will occur according to the provisions of Article C.8. After acceptance of the Custom Hardware in accordance with the provisions of Article C.8, Client agrees that the Custom Hardware only contains the functionality and other features as found by Client at the time of acceptance. The Custom Hardware is delivered "as is" (i.e. with all visible and invisible faults and defects), unless additional warranties are explicitly given in the Agreement. Such warranties will in no event cover faults, damage and defects which: - are the result of improper use of the Custom Hardware; - are the result of modifications made by Client; - are not related to the inadequacy of the materials used and/or the manufacturing process of the Custom Hardware; - have arisen as a result of incorrect storage or storage of the Custom Hardware; or - is the result of climatological or other influences. All Custom Hardware delivered to Client by TTI will be subject to retention of title by TTI and will remain the property of TTI until Client has paid the full amount owed for them. Client is not entitled to resell or pledge the goods covered by the retention of title mentioned in the previous sentence, or to encumber them in any other way. Client will notify TTI without delay if a third party wishes to establish or assert rights or to seize (or have a third party seize) the Custom Hardware subject to retention of title. Client hereby grants TTI (or third parties designated by TTI) unconditional and irrevocable permission to enter all those places where TTI's property is located and to take back that Custom Hardware in such a case.