For the use of Mobility Sensing products
1 Layman’s summary
This summary provides an overview of the terms and conditions in an easy to understand format. It is not part of, or a replacement for the actual conditions:
- If you purchase devices from Mobility Sensing you own the devices. If you opt for the service model Mobility Sensing owns the devices.
- Purchased devices have a 1-year warranty. If a product does not work properly you can request a replacement from Mobility Sensing BV. You need to swap the device yourself and return the faulty device to Mobility Sensing BV.
- You own the data the devices produce, can use the data anyway you want, and share the data with whomever you want. Mobility Sensing BV can use your data to produce added value data and information products and services that it can sell or provide for free to others.
- Mobility Sensing BV does not accept any direct or indirect damages that may result from using Mobility Sensing products or services.
2 Definitions and Acronyms
|Pod :||Sensing device that collects data and relays it to the Mobility Sensing Backend.|
|Backend :||Software services that receive and process Pod-data, and present and disseminate the information derived from the Pod-data. These services include Dashboards.|
|Dashboard :||Web dashboard where Customer can view recent and historic Pod-data and information derived from the Pod-data.|
|Products :||Pod, Backend and Dashboard, as well as accessories and consumables supplied to Customer to install and operate these.|
|Mobility Sensing BV (MSBV) :||Limited company under Dutch law, registered with the Dutch trade register with number 67261396 and supplier of the Products.|
|Customer :||Legal person purchasing Products.|
|User :||Natural person using MSBV Products.|
3.1 The Products are manufactured and supplied by MSBV.
3.2 These terms and conditions apply to the relationship between MSBV and Customer, and to any and all use of the Products. The use of any Product provided by MSBV is conditioned upon Customer’s compliance and acceptance of these terms and conditions.
3.3 By using one or more Products Customer accepts these terms and conditions.
4 Acquiring Products
4.1 Customer can acquire Products in different ways:
4.1.1 Purchase – Pods can be purchased by Customer.
4.1.2 Service model - Customer pays a fixed recurring fee. In this model MSBV owns, installs, operates and maintains the Pods and Backend.
4.2 Purchasing, receiving and installing Pod(s)
4.2.1 After purchasing Pods Customer owns the Pods.
4.2.2 After receiving payment, MSBV will send Pods by parcel delivery to the customer.
4.2.3 Customer can return the Pod within one month after receiving the Pod if the product does not live up to the Customer’s expectations. If the Pod is not returned within one month, Customer accepts the Pod as is and the warranty period starts.
4.2.4 MSBV will provide an installation manual with installation instructions.
4.2.5 Customer is responsible for having Pods installed properly, adhering to the installation instructions provided by MSBV. Customer can carry out the installation him/herself, or assign a third party, such as a preferred installation partner of MSBV, to carry out the installation.
4.2.6 If the installation of Pods is carried out by a third party, then MSBV does not accept any responsibility or liability for the installation services.
4.3 Backend Subscription
4.3.1 To use the data of purchased Pods Customer requires a subscription to the Backend.
4.3.2 The subscription fee covers the costs for data communication between Pods and the Backend.
4.3.3 The Backend Products are provided as is, including any flaws. MSBV will take all product improvement suggestions from customers into account. What improvements MSBV implements in the Backend Products is at the discretion of MSBV.
4.4 Service Model
4.4.1 The subscription fee covers the costs for data communication between Pods and the Backend.
4.4.2 Customer obtains all required permits for MSBV to carry out installation and maintenance works, or facilitates MSBV to obtain these.
4.4.3 After receiving payment for the first service time period, and obtaining all required permits, MSBV supplies, installs, commissions, configures and maintains Pods and Backend for Customer. Customer is provided with account details to access the data and information produced by Pods and Backend.
4.4.4 The service time period starts when data is available from 80% or more of the agreed Pod locations.
4.4.5 If the number of Pod locations that is installed is less then purchased, the fee difference will be discounted from the next subscription period, or be reimbursed in case the service ends.
4.4.6 MSBV replaces faulty Pods within 20 working days after detection of the malfunction.
4.4.7 If required permits are not obtained within 3 months after purchase, the purchase is cancelled and 75% of payments are refunded to Customer.
4.4.8 Customer allows and facilitates MSBV to collect Pods when the subscription is terminated within 3 months after the service time period ends, and free of charge.
4.4.9 The Products are provided as is, including any flaws. MSBV will take all product improvement suggestions from customers into account. What improvements MSBV implements in the Products is at the discretion of MSBV.
5 Using Products
5.1 Customer accepts that the quality of the data communication network that Pods use to relay data to the Backend will vary between locations, and that local circumstances, e.g. the proximity of large volumes of earth and large steel and reinforced concrete constructions, can affect the performance of this network. Customer accepts that this means that a Pod cannot be installed anywhere and that Customer might have to reinstall a Pod to make it produce the desired data. Customer also accepts that data may be lost and that Pod batteries may drain faster than usual, if Pods are installed in locations with poor network performance.
5.2 Customer accepts that local conditions, such as magnetic anomalies, may affect the quality of the data that Pods produce.
5.3 Customer accepts that the way the device is installed may affect the quality of the data that Pods collect.
5.4 Customer accepts that local conditions, e.g. that trigger frequent message sending, may affect the battery life of the Pod.
5.5 Customer may provide the account details – and thereby access rights to Pod data, Data Feed and Dashboard - to Customer’s employees and other hired staff of Customer as long as these persons are legally subject to these Terms and Conditions and are made aware of these Terms and Conditions. Customer may not provide account details and access rights to other persons or parties without obtaining the written consent of MSBV.
6 Service level Backend and Support
6.1 MSBV provides all Backend Products with an uptime of 95% per calendar year, i.e. a total maximum downtime of 5% per calendar year. Planned maintenance is not considered as downtime if its duration is less than 8 hours. Customer is entitled to a proportional refund of the Backend Subscription fee if downtime exceeds 5% per calendar year.
6.2 MSBV will provide direct customer support during regular office hours in The Netherlands, via web site, chat and/or email, in Dutch and English, with a maximum response time of 1 day.
6.3 MSBV is not responsible for the quality and provisioning of the data communication network that is used by Pods to relay data to the Backend.
7.1 Each purchased Pod has a 1-year warranty, starting after the Customer has accepted the Product.
7.2 The replacement device is provided for free and shipping costs are covered by MSBV.
7.3 Customer is responsible for installing the replacement device and recovering the faulty device.
7.4 Customer returns the faulty device to MSBV within 1 month after receiving the replacement device. If the faulty device is not returned within 1 month, MSBV is entitled to charge Customer the standard product price for supplying the replacement device.
7.5 The warranty no longer applies if:
7.5.1 Customer disassembles, modifies or reverse engineers Product hardware or software, or allows, facilitates or does not prevent third parties to do so.
7.5.2 Products are not installed or used as described in these Terms & Conditions and manuals provided by MSBV.
8 Using, sharing and publishing Pod data
8.1 Customer owns the data his/her Pods produce and may use the data in any way him/herself and share the data with whomever Customers wants.
8.2 Customer grants MSBV the right to store his/her data and to use, license and sublicense the data to third parties, either as is or by combining them with data from other sources, such as – but not limited to - from Pods of other customers.
8.2.1 This right is worldwide, everlasting, exclusive, royalty-free, transferable and irrevocable.
8.2.2 MSBV assures that no data that are provided to third parties contain personal data.
8.2.3 MSBV will assure that no data that are provided to third parties will be used for purposes that go against the direct interests of Customer.
8.2.4 MSBV may license the data to third parties for free or may charge any fee, using any pricing model, MSBV deems appropriate.
8.2.5 This right is free of charge for MSBV and any revenue in whatever form, monetary or otherwise, from licensing the data to third parties, will fall to MSBV.
9 Invoicing and Payments
9.1 The subscriptions fees are due each quarter and up front. Customer agrees that in the event MSBV is unable to collect the fee owed by Customer or Customer does not pay the fee within one month, MSBV will give Customer a notice of default. If Customer continues to fail to pay the fee, Customer will be in default. In such case, Customer shall be due to pay MSBV the owed Fees accumulated with an interest of at least 1.5% or the highest amount permitted by the applicable law, as well as any debt collection costs.
9.2 MSBV can suspend access to the Backend if Customer’s payment is overdue.
10.1 MSBV strives to build products that provide data as accurate as possible within the pricing and installation constraints of its products. Because the accuracy of measurements is affected by factors that are to a large extent outside the power of influence of MSBV, MSBV does not accept any liability for direct or indirect damages that result from missing or erroneous data from Products.
10.2 MSBV does not accept liability for direct or indirect costs or damages that may result from installing, swapping, removing or using the Products, nor from theft or vandalism, nor from Pods or components thereof that are dislodged for any reason from their original installation location.
10.3 MSBV does not accept liability for direct or indirect costs or damages that may result from poor coverage or quality, or disruptions or discontinuation of the data communication network used by Products.
10.4 Customer accepts that the total amount of any claim concerning the functioning of any Product or component thereof will never exceed the total amount paid by Customer to MSBV for the Product in the previous twelve months.
11.1 Service time periods for Backend and the service subscription are automatically extended unless Customer cancels the subscriptions in writing 1 month before the service time period ends.
11.2 Customer cannot terminate subscriptions during the service time period.
11.3 MSBV may stop provisioning Backend products to Customer with a 1-year advance notice, or immediately in the case of force majeure, without having to reimburse any fee paid by Customer.
12.1 Customer may not disassemble, modify or reverse engineer Product hardware or software, or allow, facilitate or not prevent third parties to do so.
12.2 All intellectual rights pertaining to Products are the property of MSBV, including, but not limited to the Pod device design, the brand and logo. Any copy made of Products or other intellectually owned property of MSBV falls directly to MSBV.
12.3 Any rights of MSBV or its partners concerning MSBV Products that are not granted to Customer in these Terms & Conditions automatically remain with MSBV or its partners.
12.4 MSBV reserves the right to modify or replace these Terms & Conditions at any time if MSBV finds this reasonably necessary and useful. When MSBV changes these Terms & Conditions in a significant way, MSBV will notify Customer in writing.
13 Applicable Law
13.1 These terms and conditions are subject to the laws of The Kingdom of The Netherlands.
13.2 Any disputes arising from these Terms & Conditions can only be resolved by the court of Amsterdam, The Netherlands.