EULA

End User License Agreement

PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”) BEFORE USING THIS PRODUCT. The Product includes Software, which Novatron Oy (“Manufacturer”) will license to you (“Licensee”) for use only that is in accordance with this EULA, in the manner detailed below

IF YOU HAVE NOT READ AND ACCEPTED THE TERMS AND CONDITIONS OF THIS EULA, YOU MUST NOT INSTALL OR USE THE PRODUCT OR SOFTWARE.

BY INSTALLING OR USING THE PRODUCT, YOU SHALL BE DEEMED TO HAVE ACCEPTED ALL THE TERMS AND CONDITIONS OF THIS EULA.

IN ORDER TO USE CERTAIN FEATURES OF THE SOFTWARE, END USER MAY BE ASKED TO GIVE HIS/HER CONSENT TO THE PROCESSING OF PERSONAL DATA. END USER WARRANTS THAT HE/SHE HAS CAREFULLY READ AND UNDERSTOOD THE PROVISIONS OF SECTION 8 ‘PERSONAL DATA’ OF THIS EULA BEFORE ACCESSING OR USING THE SOFTWARE.

IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS EULA, DO NOT USE OR ACCESS THE PRODUCT. IN SUCH CASE YOU MUST RETURN THE UNUSED PRODUCT (ALONG WITH ANY HARDWARE ON WHICH IT WAS EMBEDDED, IF APPLICABLE, THE ACCOMPANYING DOCUMENTATION AND THE PURCHASE RECEIPT) FOR A FULL REFUND OF THE PURCHASE WITHIN TEN (10) DAYS OF PURCHASE.

1 Definitions

“End User” shall mean an employee or contractor of the Licensee that is authorized or permitted by Licensee to access or use the Software

“Licensee”, “you” shall mean the person or entity with whom Manufacturer has executed a Purchase Agreement concerning the Product and the Software

“Product” shall mean the Novatron machine control system you have purchased for use with the Software; by default, the Software is incorporated and pre-installed into the Product.

“Purchase Agreement” shall mean the purchase order, agreement or other duly executed document pursuant to which Licensee has purchased the Product.

“Software” shall, depending on the delivery method agreed in the Purchase Agreement, mean the Novatron software and the related documentation (a) that is supplied to Licensee on a data carrier medium, or (b) that is incorporated and pre-installed on the Product, or (c) that can be downloaded online pursuant to prior authorization from Manufacturer.

“Specifications” shall mean the description and functionality of the Software as described in the Product description provided by Manufacturer.

“Updates” shall mean any software and/or its modification(s) which primarily contain fault corrections and/or minor enhancements or improvements of the Software

2 Scope of the License

Grant of License

Subject to Licensee paying the applicable license fee and complying with all of the following provisions of this EULA, Novatron Oy, Jasperintie 312, 33960 Pirkkala, Finland (hereinafter the “Manufacturer”) hereby grants to the Licensee the non-exclusive, non-transferable, non-sublicenseable and non-assignable right, to use the Software in the manner set forth herein. Licensee is not permitted to use the Software for other purposes than as licensed herein.

Limited License

The Software and the Product will only be used for Licensee’s internal purposes in accordance with the Purchase Agreement and the provisions of this EULA.

Depending on the method of delivery of the Software agreed between Manufacturer and Licensee in the Purchase Agreement, the foregoing license is further limited as follows:

(a) if not otherwise agreed between Manufacturer and Licensee, the Software will by default only be used in a machine-readable form on such permitted number of Products as agreed upon in Purchase Agreement; or

(b) if authorized by Manufacturer in writing prior to such use, the Software may be used without the Product, such as for desktop simulator use or to be used in device or equipment other than the Product, however always in accordance with the installation instructions of Manufacturer.

Restricted Use

Licensee will only use the Software in the manner permitted under the foregoing license and will not:

(a) alter, adapt, modify, or translate the Software or any part thereof in any manner;

(b) decompile, disassemble or reverse-engineer the Software or any part thereof or manipulate the Software in any other way;

(c) publish, display, disclose, sell, rent, lease, store, loan, distribute, publicly display or perform, co-brand, frame, or permit third parties to link to the Product or any part thereof or make it available to a third party in any other manner without the prior written consent of Manufacturer;

(d) use the Software or any part thereof on, or transfer the Software or a part thereof to, a computer environment or operating system other than the Product, or to more than the permitted amount of work stations, on networks, on a client server system or on mobile additional instruments without the prior written consent of Manufacturer;

(e) remove, alter, or obscure any proprietary notices, labels, or marks from the Software or the Product; or

(f) circumvent or remove any form of copy protection or usage restriction in the Software by using any means, or to enable functionality disabled by Manufacturer.

3. Product Activation and Security Mechanisms

The Software contains product activation technology which may cause the Product to automatically connect to the Internet. Furthermore, installation, access and use of the Software require a serial number which is transmitted to Manufacturer in order to prevent prohibited or unauthorized use of the Software (such as copying). Licensee acknowledges and agrees that such activation security mechanisms may disable the Product in such events, especially if Licensee attempts to transfer the Software to an unauthorized device or computer or uses the Software after expiration of limited license term, or if the date-setting mechanism of the Software are interfered with. Furthermore, the Software may contain a monitoring program designed to regulate and monitor the number of simultaneous users of the Software in a network environment. Licensee may not circumvent, reverse-engineer, copy, remove or otherwise tamper with such monitoring program.

The Software also contains technology which may automatically connect the Product to the Internet. Such technology is designed to provide remote technical and support services, to transmit other support-related information and to enable configurations and downloading updates to the Software, as well as to communicate with Manufacturer and/or third-parties.

Licensee hereby acknowledges and agrees the inclusion and operation of the aforementioned technologies, programs and security mechanisms.

In order to use certain functionalities of the Software, the Licensee may be required to register the Software by way of a registration key issued by Manufacturer. Licensee agrees to provide accurate and current registration information upon registration and also to maintain and update it thereafter. Licensee agrees that Manufacturer may use Licensee’s information transmitted through the Software as well as information Licensee has given, or Manufacturer has otherwise obtained, through the registration process.

4 Third-Party Software and Open-Source Software

Licensee acknowledges that the Software includes portions of software developed by third parties, which portions are identified in the “licenses.txt” file on delivery media. Copies of the copyright notices for any third-party software are supplied with the Software in the “licenses” directory (“Directory”). Licensee agrees to read the files in the Directory and fully complies with all terms and conditions provided in the Directory. Furthermore, Licensee agrees that the third-party software delivered by Manufacturer may only be used complete and unmodified and only bundled as part of the Software and may only be run by the Software.

Furthermore, certain components of the Software may be subject to open-source software licenses (“Open-Source Components”), which means any software license approved as open-source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make such software available in source code format. The Software documentation includes copies of the licenses applicable to the Open-Source Components.

To the extent there is conflict between the license terms covering the Open-Source Components and this EULA, the terms of such licenses will apply in lieu of the terms of this EULA. To the extent the terms of the licenses applicable to Open-Source Components prohibit any of the restrictions in this Agreement with respect to such Open-Source Component, such restrictions will not apply to such Open-Source Component. To the extent the terms of the licenses applicable to Open-Source Components require Manufacturer to make an offer to provide source code in connection with the Product, such offer is hereby made, and you may exercise it by contacting Manufacturer.

5 Warranty

Warranty by Manufacturer

Manufacturer warrants to Licensee that the Product on which the Software is stored shall be free from defects in workmanship and material at the time of delivery to Licensee. Furthermore, Manufacturer warrants to Licensee that the Software (excluding Updates) shall function in material conformance with the Specifications, provided that the Software has been installed, used and operated at all times as a part of the Product in accordance with the applicable documentation in a manner permitted in this EULA, for the warranty period specified in the applicable Purchase Agreement.

In order to trigger Manufacturer’s warranty obligations, the defect described above must cause the Software to function in a way so divergent from the Specifications that the Software may not be used for the purpose set out in the Product description provided by Manufacturer.

Subject to prerequisites for warranty above, Manufacturer’s sole obligation under the foregoing warranty shall be at, at its sole discretion and expense, either to:

(a) replace the Product or Software, so as to materially conform with the Specifications. This shall include, without limitation, replacement with a more recent version of the Software. However, Licensee agrees that such new versions of the Software may not have similar functionalities as the previous version used by the Licensee; or

(b) repair the Software by providing correction codes, work-around solutions and/or Updates, including updated documentation and other documents; or

The foregoing warranty will apply to any replaced Product and Software until expiry of the original warranty period. Licensee shall bear the costs and risk of any delivery of the Product or Software to the service site nominated by Manufacturer.

Warranty Service

Should Licensee detect a defect in the Product or Software under the applicable warranty period, Licensee shall immediately stop using the Product or Software. Licensee is strictly prohibited from repairing the defect by itself or any unauthorized third party.

Licensee shall issue to Manufacturer or its local sales partner a written warranty notification stating and describing the defect in sufficient detail in order to enable Manufacturer to reproduce and test the defect, within: (a) ninety (90) days from the date of delivery of the defective Product; and (b) one (1) year from the date of delivery of the defective Software. Furthermore, Licensee shall attach the purchase receipt of the Software or Product to its written notification stating the defect. Manufacturer may request Licensee’s support for analyzing the causes and circumstances concerning the defect, such as testing of correction codes or a work-around solution, and Licensee agrees to provide such reasonable support to Manufacturer without cost.

Limitations to Warranty by Manufacturer

Manufacturer shall not be responsible for defects, and in consequence shall be relieved of its obligations under the Warranty by Manufacturer, caused by circumstances for which it is not responsible for, including, without limitation:

(a) the Software or Product is installed, used or operated in violation of, or otherwise in non-compliance with, the applicable documentation and instructions issued by Manufacturer, such as the Product description;

(b) Licensee is in violation of, or otherwise in non-compliance with, the provisions of this EULA;

(c) the Software is being used on a device, computer or equipment other than the Product and use of which is not authorized by Manufacturer;

(d) defect is caused by software, hardware or other products of third-parties not supplied by Manufacturer; and

(e) defect is caused by exceptional circumstance not attributable to Manufacturer or outside the Manufacturer’s control.

Should Manufacturer determine that the defect is caused by such causes and circumstances or Licensee otherwise in not complying with its obligations under the foregoing warranty clauses, and this causes costs and expenses to Manufacturer, in such event Manufacturer shall have the right to charge Licensee for the costs and expenses that incurs for the analysis and rectification of the defect. Such charges shall be based on the time and materials required and otherwise in accordance with Manufacturer’s then valid price list.

LIMITED WARRANTY

OTHER THAN THE WARRANTY ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MANUFACTURER AND ITS SUPPLIERS MAKE NO OTHER EXPRESS WARRANTIES UNDER THIS EULA, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY SATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. MANUFACTURER AND ITS SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE WILL BE FREE OF DEFECTS, RUN WITHOUT INTERRUPTION, OR FUNCTION IN COMBINATION OF SOFTWARE PRODUCTS OF THIRD PARTIES, OR THAT ALL OR ANY PROGRAMS ERRORS WILL BE CORRECTED.

Furthermore, Licensee acknowledges and agrees that:

(a) the Software has not been developed to meet Licensee’s individual requirements and that it is therefore Licensee’s responsibility to ensure that the facilities and functions of the Software meet Licensee’s requirements.

(b) Manufacturer’s sales partners or dealers are not allowed to provide any warranty, guarantee, assurance with regard to the use, suitability, or results of the Software, or precision, accuracy or reliability thereof, and any such warranty, guarantee or assurance is not effective;

(c) calculation errors may occur when using the Software for instance caused by local environmental conditions and/or incomplete data;

(d) observing the environment in which the Product is being operated is Licensee’s exclusive responsibility. Manufacturer shall not assume, and hereby expressly disclaims, any responsibility for any damages occurred in relation to the use of the Software or Product in any vehicle or machine.

6 Intellectual Property Rights

The Software is licensed, not sold. Licensee shall only hold those rights to the Product and Software that are expressly described in Section 2 of this EULA. Any other rights with regard to the Product and Software, including without limitation, ownership rights and patent, copyright, trademark, trade secret and other intellectual property rights, shall remain the sole property of Manufacturer.

Licensee will indemnify and hold harmless Manufacturer from and against any losses, damages, claims and expenses (including, without limitation, reasonable legal expenses) relating to any infringement of the rights of Manufacturer caused by Licensee, Licensee’s breach of this EULA or Licensee’s use of the Product and Software in a manner not authorized under this EULA.

If in the reasonable and sole opinion of Manufacturer the valid, unmodified version of the Software infringes third party intellectual property rights in the agreed country of delivery or use or if such infringement has been confirmed in a trial, Manufacturer shall and may at its own expense and discretion either (a) obtain authorization for the continued use of the Software for Licensee; (b) replace the Software or Product with another of equivalent function, (c) modify the Software in order to eliminate the infringement, or (d) terminate this EULA with immediate effect and refund to Licensee the price paid for the Software or Product less the proportion of price corresponding to the actual time of use of the Software by Licensee.

Manufacturer shall, however, not be liable if the infringement claim is based on the allegation or fact that the Software: (a) has been modified by Licensee or any unauthorized third party; (b) results from use of the Software in combination with any other product or service not supplied or approved by Manufacturer; (c) is asserted by a company which exercises control over Licensee or which is controlled by Licensee (control having the meaning of 50 % or more of vote or share stock); (d) has been used and operated under conditions other than those specified in the Product description issued by Manufacturer; or (e) has been otherwise used and operated in violation of this EULA.

THIS SECTION 6 STATES MANUFACTURER’S ENTIRE LIABILITY, AND LICENSEE’S SOLE REMEDIES, FOR CLAIMS FOR INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

7 Limitation of Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER MANUFACTURER NOR ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE LIABLE FOR ANY LOSS OF USE, LOSS OR CORRUPTION OF DATA, INABILITY TO USE ANY THIRD-PARTY EQUIPMENT OR ACCESS DATA, FAILURE OF SECURITY MECHANISMS , BUSINESS INTERRUPTION, FINANCIAL LOSSES OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND THAT RESULT FROM OR IN CONNECTION WITH THE SOFTWARE, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF SUCH DAMAGES IN ADVANCE.

Licensee shall be exclusively liable for ensuring that it and its employees possess required and adequate knowledge to properly install and use the Software. Manufacturer shall not be liable for damages caused by improper installing or use on the part of the Licensee or its employees, or any other user of the Software .

Furthermore, Licensee should be aware of the fact that when using the Software, observing environment is Licensee’s exclusive responsibility. Manufacturer shall not assume, and hereby expressly disclaims, any responsibility for any damages occurred in relation to the use of the Software in any machine.

8 Data Protection

In order to provide certain features of the Software to the End User, Manufacturer may ask for End User’s Personal Data. End User is not required to provide the Personal Data Manufacturer has requested but if End User choose not to do so, Manufacturer may not be able to provide End User with certain features of the Software.

By installing, accessing and using the Software and accepting this EULA, Licensee’s end user (“End User”) acknowledges, agrees and consents that Manufacturer will collect and process:

(a) personal data, which is information that can be used, directly or indirectly, alone or together with other information, to identify the End User (“Personal Data”);

(b) technical and related information about End User and End User’s use of the Software, which may include End User’s internet protocol address, hardware identifying information, operating system, application software, peripheral hardware, and Software usage statistics, to assist with the operation and function of the Software, the provision of Updates, support, invoicing, marketing by or on behalf of Manufacturer and research and development (“Technical Data”);

(c) location information, which is used on the Product only while the application is running and in accordance with End User’s privacy settings. End User can control when location is shared with others by managing the settings on the Product. Licensee agrees to notify any other users associated with the Product of this feature (“Location Data”);

hereinafter collectively referred to as “User Data”.

Licensee and End User understand, agree and consent that User Data that is shared with the Software may be used by Manufacturer for the following purposes:

To operate business and provide the Software to users,
individuals and entities;
To deliver the Software and allow you access and right of use
to the Software;
To operate, audit, analyze, develop, improve, manage and
protect the Software;
For statistical and research purposes in accordance with
applicable law;
To personalize functionalities and settings on the Software;
To communicate with Licensee and End User and respond to
their requests.

Once Personal Data is collected, Manufacturer will not process it further in any way that is incompatible with the purposes set out above. Manufacturer does not obtain or process your Personal Data before End User consents to such activities.

Each time an End User logs on to the Software, certain Data, including the login credentials, will be sent to servers hosted by or on behalf of Manufacturer. This Data is used to access the End User’s account, the Software and other personalized features. Manufacturer may match the login credentials to Personal Data in order to provide the End User with the Software that the End User is entitled to use, and to provide relevant data and information.

Data that is stored on the Product will be transmitted to Manufacturer’s servers when such upload or transfer is initiated by the End User or if the End User has otherwise consented to it. Such servers may be located outside the European Economic Area in third countries which do not have similar laws providing specific protection for personal data or that have different legal rules on data protection. Should Manufacturer transfer End User’s Personal Data to such third countries, Personal Data will be protected as described in this EULA and always in accordance with the applicable law. Notwithstanding the foregoing, if the applicable data protection laws of the country in which the Software is being used (and in consequence End User’s Personal Data is being processed) prevent or prohibit cross-border transfers of Personal Data, Manufacturer shall collect and process Personal Data in such country and shall not transfer it.

Manufacturer will not sell any Personal Data to third parties, nor make Personal Data available to them for other purposes than to enable End User’s use of the Software. Manufacturer may utilize third party processors to perform data processing on Manufacturer’s behalf. Manufacturer is liable towards Licensee for acts and omissions of such third party as for its own. Should Manufacturer transfer any Personal Data collected or processed via the Software to any third party processor, Manufacturer will ensure at all times that the third party service provider will be bound by appropriate contractual guarantees with respect to such third party’s obligations in accordance with applicable data protection law, and ensuring all times that End User’s Personal Data will remain protected in accordance with at least the same standards as under this EULA.

When processing the Personal Data Manufacturer carries out appropriate technical and organizational measures necessary for securing Personal Data against unauthorized access, against accidental or unlawful destruction, manipulation, disclosure and transfer and against other unlawful processing.

Under the applicable data protection legislation, End User may have certain rights as a data subject. If applicable, End User has the right to request from Manufacturer access to and rectification or erasure of Personal Data or restriction of processing concerning Personal Data or to object to processing. Furthermore, End User shall have the right to lodge a complaint with a data protection supervisory authority. End User may request to exercise his/her rights by contacting Manufacturer.

Manufacturer is committed to protecting and respecting privacy of the users and to complying with applicable data protection and privacy laws. If Licensee or End User have any questions or concerns concerning data processing practices, or End User wishes to exercise his/her rights under the applicable data protection legislation, please contact Manufacturer.

Manufacturer retains End User’s Personal Data for a period not exceeding the period (i) required for the purposes for which it was collected and processed, or (ii) End User uses the Software. Thereafter Manufacturer then will either delete Personal Data or irreversibly anonymize the data so End User can no longer be linked to such anonymized data.

9 Term and Termination

This EULA shall come into force on (i) the agreement of Licensee to the provisions hereof; or (ii) the moment Licensee started using the Product and/or Software, whichever (i) or (ii) is earlier.

Without prejudice to any other rights, Manufacturer may immediately terminate this EULA if Licensee fails to comply with any of its terms and conditions. The provisions of this EULA, which by their nature are intended to survive termination, will remain in effect after termination of this EULA. Manufacturer reserves the right, with or without notice, to discontinue update, upgrade and supplement services provided to Licensee or made available to Licensee through the use of the Software.

On any termination of this EULA, all rights of use of the Software held by Licensee shall expire. Within thirty (30) days from the date of termination of this EULA Licensee will return to Manufacturer or destroy (and confirm such destruction in writing to Manufacturer) the Product, the Software and all copies or partial copies thereof that have been made, as well as all modified parts of the Software or interfacing parts linking to other programs or data systems, and to the extent available, all security devices.

10 Other Terms

Licensee agrees to comply with all applicable laws, rules and regulations, as well as being exclusively responsible for ensuring compliance with the relevant legislation relating to its rights to import, export or use the Software.

This EULA constitutes the entire agreement between Manufacturer and the Licensee concerning the Software or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.

11 Changes to this EULA or to the Software

Manufacturer reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this EULA for security, legal, best practice or regulatory reasons. The most current version of this EULA can be reviewed by clicking on the “EULA” link located on the Software. Licensee is responsible for checking this EULA periodically for changes. If any future changes to this EULA are unacceptable to Licensee or cause Licensee to no longer be in agreement or compliance with this EULA, Licensee may terminate this EULA by notifying Manufacturer in writing thereof and must immediately cease using the Software and destroy all copies of the Software. Licensee’s continued use of the Software following any revision to this EULA constitutes Licensee’s complete and irrevocable acceptance of any and all such changes.

Manufacturer may modify the Software for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the Product. You agree that the Product may install or download the modifications automatically.

12 Governing Law and Place of Jurisdiction

This Agreement shall be governed by the laws of Finland, excluding all conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. Any controversy, dispute or claim arising out of this EULA or the breach thereof will be finally settled by Pirkanmaa District Court in Tampere, Finland. Manufacturer shall, in its sole discretion, also have the right to invoke the courts of law having jurisdiction at the domicile or place of business of Licensee.

Should you have any questions concerning this EULA, or if you desire to contact Manufacturer for any reason, please visit Manufacturer’s website at http://www.novatron.fi.

Xsite® MANAGE – End User Terms and Conditions

BEFORE USING OR ACCESSING THE SERVICE, PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE STOP USE OF THE SERVICE IMMEDIATELY.

The usage of Xsite® MANAGE (“Service”) requires you (“User”) to read and agree to these End User Terms and Conditions (”Terms and Conditions”).

These End User Terms and Conditions apply to and are incorporated by reference into an agreement concerning Xsite® MANAGE application (“Agreement”) made by and between Novatron Oy (“Service Provider”), or a reseller of Novatron Oy, and a customer of Service Provider or a reseller (“Customer”) or an individual user (“Individual User”) and set forth the terms and conditions under which the Service Provider will provide the End User with access to Xsite® MANAGE application as provided in the Agreement.

As an Individual User (as later defined), by accessing the Service, you agree to these Terms and Conditions. Individual User’s personal data is processed by the Service Provider acting as a data controller within the meaning of the applicable data protection legislation in accordance with Novatron’s Privacy Notice, https://novatron.fi/en/privacy-notice/.

As an End User (as later defined), by accessing the Service, you and the Customer you act on behalf of, agree to these Terms and Conditions.

Neither Individual User or End User have no right to use the Service without agreeing to the terms of these Terms and Conditions.

The User’s right to use Xsite® MANAGE can alternatively be based on a free of charge right to use the Service provided by the Service Provider and allowing the User to use a restricted version of the Service including fewer functionalities than a full version of the Service. Also the restricted use of the Service shall only be allowed provided that the User has agreed to and complies with these Terms and Conditions. Where reference is made to an Agreement in these Terms and Conditions, the definition Agreement shall also refer to the information and terms provided by the Service Provider and accepted by the User by creating a user account in the Service. The term Customer shall refer to the legal entity the End User represents.

Service Provider reserves the right to change these Terms and Conditions without notice.

Description of the Service

Xsite® MANAGE is a web-based tool for monitoring and managing earthmoving projects and machines. The Service is designed for surveyors, work supervisors, site managers, and other personnel in charge of jobsite functions.

The Service shall include a subscription to the software as a service Xsite® MANAGE or any part thereof and any printed, online and/or electronic information and documentation related thereto, from time to time.

Service Provider may, in the future, add new features to the Service. Such new features shall also be subject to these Terms and Conditions.

1 Definitions

“DPT” shall mean the Data Processing Terms applicable between Customer and Service Provider. Data Processing Terms are not applied to Individual Users.

“End User” shall mean an employee or contractor of Customer that is authorized or permitted by Customer to access or use the Service. Customer is responsible for acts and omissions of its End Users.

“Customer” shall mean the person or entity with whom Service Provider or Service Provider’s reseller has executed an Agreement concerning the Service

“Individual User” shall mean an individual user of the Service who is using the Service on its own behalf for its own purposes.

“Agreement” shall mean the purchase order, agreement or other duly executed document pursuant to which Customer has purchased the Product.

“Service” shall mean the Xsite® MANAGE application

“Updates” shall mean any Service and/or its modification(s) which primarily contain fault corrections and/or minor enhancements or improvements of the Service

“User” shall mean End User and Individual User

2 Scope of the License

Grant of License

Subject to Customer paying the applicable license fee and complying with all of the following provisions of these Terms and Conditions, Novatron Oy, Jasperintie 312, 33960 Pirkkala, Finland (hereinafter the “Service Provider”) hereby grants to Customer and Users the non-exclusive, non-transferable, non-sublicenseable and non-assignable right, to use the Service, and to use information available to Customer and User, as hosted by Service Provider as described in Agreement and in the manner set forth herein. Customer and Users are not permitted to use the Service for other purposes than as licensed herein.

Limited License

The Service and the Product will only be used for Customer’s or Individual User’s internal purposes in accordance with the Agreement and the provisions of these Terms and Conditions.

Restricted Use

Customer and Users will only use the Service in the manner permitted under the foregoing license and will not, and will not permit anyone else to:

(a) copy, alter, adapt, modify, create a derivative work of, or translate the Service or any part thereof in any manner;

(b) decompile, disassemble or reverse-engineer, or otherwise attempt to extract the source code of the the Service or any part thereof or manipulate the Service in any other way;

(e) remove, alter, or obscure any proprietary notices, labels, or marks from the Service; or

(g) circumvent or remove any form of copy protection or usage restriction in the Service by using any means, or to enable functionality disabled by Service Provider.
Furthermore, the Customer may not access or expose the application programming interface (API) functionality of the Service, nor allow any third party to do so. Customer shall be liable for any use or misuse of the Service by such third parties.
Customer and User shall be responsible for any use of the Service made by the credentials provided by the Service Provider.
Customer and User shall be responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Service.

Use of Data

Prerequisite for using the Service is, and Customer and User acknowledge and accept, that:

a) the Service sends location, as-built and telemetry information to the Service Provider;

b) the aforementioned information can be disclosed and shared with other devices, machines and equipment connected to the Service, such as other machines in the same construction site.

Customer and User warrant to the Service Provider that they are entitled to disclose and share location information, measured as-built data as well as model files used by the Service to the Service Provider.

CUSTOMER AND USER AGREE TO INDEMNIFY AND HOLD HARMLESS SERVICE PROVIDER AGAINST EACH AND EVERY CLAIM, LOSS, DAMAGE, AND ALL REASONABLE EXPENSES AND COSTS, INCLUDING LEGAL FEES, INCURRED BY SERVICE PROVIDER ARISING OUT OF BREACH OF THEIR OBLIGATIONS UNDER THIS CLAUSE.

In the event that personal data is processed in connection with aforementioned activities, Novatron’s Privacy Policy (available at https://novatron.fi/en/privacy-notice/) and/or the Data Processing Terms stated in section 6 below (as applicable) are applied to the processing of personal data.

3 Third-Party Service and Open-Source Service

Customer and User acknowledges that the Service includes portions of Service developed by third parties, which portions are identified in the “licenses.txt” file on delivery media or otherwise available on the Service. Copies of the copyright notices for any third-party Service are supplied with the Service in the “licenses” directory (“Directory”). Customer and User agrees to read the files in the Directory and fully complies with all terms and conditions provided in the Directory. Furthermore, Customer and User agrees that the third-party Service delivered by Service Provider may only be used complete and unmodified and only bundled as part of the Service and may only be run by the Service.

Furthermore, certain components of the Service may be subject to open-source Service licenses (““Open-Source Components””), which means any Service license approved as open-source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the Service licensed under such license, requires that the distributor make such Service available in source code format. The Service documentation includes copies of the licenses applicable to the Open-Source Components.

To the extent there is conflict between the license terms covering the Open-Source Components and these Terms and Conditions, the terms of such licenses will apply in lieu of the terms of these Terms and Conditions. To the extent the terms of the licenses applicable to Open-Source Components prohibit any of the restrictions in these Terms and Conditions with respect to such Open-Source Component, such restrictions will not apply to such Open-Source Component. To the extent the terms of the licenses applicable to Open-Source Components require Service Provider to make an offer to provide source code in connection with the Service, such offer is hereby made, and you may exercise it by contacting Service Provider.

4 No Warranties; Limitation of Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE THAT THE SERVICE IS PROVIDED ““AS IS”” WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SERVICE PROVIDER HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SERVICE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM IT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER OR ANY SUBSTITUTE, LICENSOR OR SUBCONTRACTOR OF SERVICE PROVIDER BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATIOIN LOST PROFITS OR LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE INCURRED IN RELATION TO THE SERVICE, THE USE OF THE SERVICE OR ANY ACTIONS OF THIRD PARTIES.

Individual User and Customer shall be exclusively liable for ensuring that it and, in case of Customer, its End Users possess required and adequate knowledge to properly install and use the Service. Service Provider shall not be liable for damages caused by improper installing or use on the part of Customer or Users, or any other user of the Service.

The Service Provider does not guarantee that the use of the Service will be uninterrupted, timely, secure or error-free. Availability of the Service will not be guaranteed by the Service Provider. Any technical support services shall be agreed on separately. The User shall be responsible for acquiring any appliances, data communication connections, and programs necessary for the use of the Service and the information security thereof.

The Service Provider is not responsible for any content that is made available on the Service by the Individual User, Customer, its End-Users or third parties. The Service pProvider is not responsible if information on the Service is not accurate, complete or up to date nor does the Service Provider warrant that the information obtained through the Service will meet the Individual User’s, Customer’s, or its End-User’s requirements.Customer and User assume sole responsibility for results obtained from the use of the Service by the Customer or User, and for conclusions drawn from such use.

The Service is not meant to be used for long-term storage of any data. The Service Pprovider is not liable for any harm or damage regarding loss of data. The User is responsible for backing up data.

5 Intellectual Property Rights

The Service is licensed, not sold. Customer and User shall only hold those rights to the Service that are expressly described in Section 2 of these Terms and Conditions. Any other rights with regard to the Service, including without limitation, ownership rights and patent, copyright, trademark, database right, trade secrets, trademarks (whether registered or unregistered) and other intellectual property rights, shall remain the sole property of Service Provider and/or its licensors.
Customer and User may not, and may not permit anyone else, to modify how Service Provider’s or its licensors’ logo, trademark and brand identity is presented in the Service
Customer and User shall at its own cost obtain and maintain all necessary licenses, consents, and permissions for the data submitted or entered into the Service by Customer or User (“Customer Data”) that is necessary for Service Provider, its licensors and their subcontractors to perform their obligations. Customer Data shall be proprietary to the Customer or User and Customer and/or User own all intellectual property rights in the Customer Data. Service Provider and its licensors may process the Customer Data in the Service solely for the purpose of providing the Service. Service Provider agrees to keep the Customer Data as confidential and not to use such data for any other purpose than for provision of the Service or improving the Service. Nothing herein shall be construed as prohibiting Service Provider or its licensors, during the term of the Service or thereafter, from utilizing the aggregated, anonymized or statistical data derived from the Customer Data or operation of the Service.

Customer and Individual User will indemnify and hold harmless Service Provider from and against any losses, damages, claims and expenses (including, without limitation, reasonable legal expenses) relating to any infringement of the rights of Service Provider caused by Individual User or Customer, Customer’s or its End User’s breach of these Terms and Conditions or Individual User’s, Customer’s or its End User’s use of the Service in a manner not authorized under these Terms and Conditions.

If in the reasonable and sole opinion of Service Provider the valid, unmodified version of the Service infringes third party intellectual property rights in the agreed country of delivery or use or if such infringement has been confirmed in a trial, Service Provider shall and may at its own expense and discretion either (a) obtain authorization for the continued use of the Service for Customer/Individual User; (b) replace the Service with another of equivalent function, (c) modify the Service in order to eliminate the infringement, or (d) terminate the Agreement with immediate effect and refund to Customer/Individual User the price paid for the Service less the proportion of price corresponding to the actual time of use of the Service by Customer/Individual User.

Service Provider shall, however, not be liable if the infringement claim is based on the allegation or fact that the Service: (a) has been modified by Customer/Individual User or any unauthorized third party; (b) results from use of the Service in combination with any other product or service not supplied or approved by Service Provider; (c) is asserted by a company which exercises control over Customer or which is controlled by Customer (control having the meaning of 50 % or more of vote or share stock); (d) has been used and operated under conditions other than those specified in the Product description issued by Service Provider; or (e) has been otherwise used and operated in violation of these Terms and Conditions.
THIS SECTION 5 STATES SERVICE PROVIDER’S ENTIRE LIABILITY, AND CUSTOMER’S/INDIVIDUAL USER’S SOLE REMEDIES, FOR CLAIMS FOR INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
6 Data Processing Terms
These Data Processing Terms shall be applied between Customer and Service Provider. These Data Processing Terms shall not be applied to Individual User.
Obligations of Customer as a data controller
Customer acts as a data controller under applicable data protection legislation. Customer commits to ensure compliance with the data controller’s obligations under applicable data protection legislation. In particular, Customer shall be responsible to ensure, inter alia, that:

Customer has the right to disclose personal data to
Service Provider according to the purposes stated
in the Agreement;
there is a valid legal ground for the processing provided in
applicable data protection law such as contract,
legitimate interest, appropriate authorization or
data subjects’ consent;
the processing and purposes of the data collected or
processed have been specified prior to the processing
activities;
the data collected is accurate, correct and necessary for
each specific purpose of the processing, and no
unnecessary data is collected;
Customer provides access rights to the persons designated
by Customer (such as End Users) and removes access rights
when they are no longer necessary and ensures the proper
guidance and training of its End Users;
personal data has been protected from unauthorized
access, and accidental or unlawful destruction,
alteration, disclosure, transport or other
unlawful processing;
personal data that are inaccurate or incorrect are rectified
or erased without delay;
personal data that have become outdated or unnecessary
will not be processed, but disposed of in a reliable manner,
unless European Union or Member State law requires
storage of the personal data;
data subjects (such as End Users) have the opportunity to
obtain transparent information regarding the processing of
their personal data, which is easily accessible and
understandable and provided using clear and plain language.

Description of processing activities

The subject-matter of the processing is Service Provider’s provision and Customer’s use of Service and the detection, prevention and resolution of security and technical issues as provided for in the applicable Agreement.
The duration of the processing is from the date Service Provider first processes personal data on behalf of Customer until Customer ceases using Service. However, Service Provider may retain personal data for a longer period if necessitated by technical and back-up purposes (entire deletion of personal data is possible only under regular deletion intervals determined by Service Provider).

The purpose of the processing is to provide Service to Customer under the Agreement and the detection, prevention and resolution of security and technical issues and other compatible purposes.
The type of personal data processed is any personal data provided or made available to Service Provider by or on behalf of Customer or End Users through the use or provision of Service.

The categories of data subjects are those whose personal data are provided or made available to Service Provider by or on behalf of Customer or End Users through the use or provision of Service, including staff, contractors, partners of Customer or End Users and any End Users who are individuals.

Obligations of Service Provider as a data processor

Under the applicable data protection legislation Service Provider acts a data processor, which processes personal data Customer is responsible for on behalf of Customer according to its documented instructions. Unless otherwise agreed between the parties in writing, these Terms and Conditions and the Agreement form Customer’s documented processing instructions to Service Provider. Service Provider shall implement appropriate technical and organizational measures for ensuring the security of the processing and maintain appropriate documentation of these measures and processing activities.
Service Provider commits to ensure that all the persons processing personal data under the authority of Service Provider have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality in addition to that such persons shall process personal data only pursuant to these Terms and Conditions, the Agreement and Customer’s instructions.

Service Provider commits to assist Customer to ensure compliance with the provisions on the data subject’s rights by appropriate technical and organizational measures and to inform Customer about the requests received from the data subjects. Service Provider shall have the right to charge reasonable labor costs incurred from assisting Customer.
Service Provider shall provide Customer all the information necessary to demonstrate compliance with the obligations regarding the processing of personal data. Service Provider shall allow Customer either on their own or with a third party – which shall not be a competitor to Service Provider – to conduct audits in the presence of Service Provider once during the Agreement period. Customer shall notify Service Provider in writing at least 30 days in advance, after which the parties shall mutually agree on the extent and timing of the audit, always conducted during Service Provider’s normal working hours. Prior to conducting any audit Customer and third party auditor shall be obliged to sign Service Provider’s customary non-disclosure agreement. Service Provider shall have the right to charge labor costs incurred from the audit according to its then valid price list.

Service Provider has an obligation to assist Customer in completing possible data protection impact assessments, notifications of personal data breaches and prior consultation requests to the extent they relate to the Service service provided by the supplier. Service Provider has the right to charge labor costs incurred by these assistance measures according to its then valid price list.

After the end of the provision of services under the Agreement Service Provider commits to either delete or return all the personal data under Customer’s responsibility to Customer, based on Customer’s choice. Service Provider has the right to charge labor costs incurred by returning the personal data according to its then valid price list. Service Provider deletes existing copies of the personal data unless legislation requires storage of the personal data.

Subcontractors

Possible subcontractors used by Service Provider, which take part to processing personal data, also act as data processors on behalf of Customer. By accepting these Terms and Conditions, Customer has provided a prior written authorization for the use of subcontractors. Service Provider shall have full responsibility for the actions and omissions of its subcontractors and shall ensure that the subcontractors comply with the relevant responsibilities and obligations of Service Provider related to data protection. Service Provider shall inform Customer in writing of any intended changes concerning the addition or replacement of subprocessors, thereby giving Customer the opportunity to object to such changes. Should Customer object to such changes, the parties shall negotiate in good faith about the available options.

Transfers of personal data

Service Provider is entitled to transfer personal data outside the European Union or the European Economic Area, provided that Service Provider commits to ensure that Service Provider itself and its subcontractors transfer personal data in compliance with the applicable data protection legislation, including provisions stipulated in chapter V of the GDPR.

Personal data breaches and notifications thereof

In the event of a personal data breach, Service Provider shall without undue delay after becoming aware of it notify Customer thereof in writing. The personal data breach notification shall contain at least the following:

a) a description of the nature of the personal data breach including, the categories and approximate number of data subjects concerned and the categories and approximate number of data records concerned;
b) the name and contact details of the Data Protection Officer or other person able to provide additional information;
c) a description of likely consequences and/or realized consequences of the personal data breach; and
d) a description of the measures taken by Service Provider to address the personal data breach and to mitigate its possible adverse effects.

Customer must inform Service Provider without undue delay if Customer becomes aware of a personal data breach which may concern the personal data which Service Provider processes on behalf of Customer. Should Service Provider need necessary information in the event of a personal data breach in order to fulfil its obligations under these Terms and Conditions and applicable data protection legislation, Customer must give such information to Service Provider without undue delay.

7 Confidentiality

Each Party (“Receiving Party”) shall keep in confidence all material and information (including but not limited to any technical, commercial or financial information and intellectual property rights) received from the other Party (“Disclosing Party”) and marked as confidential or which should be understood to be confidential (“Confidential Information”), and may not use such Confidential Information for any other purposes than those set forth in these Terms and Conditions.
The Receiving Party shall not have the right to disclose Confidential Information to any third party, except its professional advisers, licensors and subcontractors that need to know such Confidential Information for the purpose of these Terms and Conditions and while involved in the performance of their obligations under these Terms and Conditions.
The confidentiality obligation shall, however, not be applied to material and information, (a) which is or later becomes generally available or otherwise public without a breach of these Terms and Conditions by the Receiving Party; or (b) which the Receiving Party has received from a third party without any obligation of confidentiality; or (c) which was rightfully in the possession of the Receiving Party prior to receipt of the same from the Disclosing Party without any obligation of confidentiality related thereto; or (d) which the Receiving Party has independently developed without any use or reference to the Confidential Information received from the Disclosing Party.

Each Party shall promptly upon termination of these Terms and Conditions, or when the Party no longer needs the Confidential Information in question for the purpose of performing its obligations under the these Terms and Conditions, cease using the Confidential Information received from the Disclosing Party and, unless the Parties separately agree on destruction of such Confidential Information, return the Confidential Information in question (including all copies and reproductions thereof) to the Disclosing Party. Each Party shall, however, be entitled to retain the copies required by law or regulations applicable to such Party.

Notwithstanding the generality of the above, each Party shall be entitled to use the general professional skills and experience acquired in connection with the performance of these Terms and Conditions and retained in the unaided memories of the personnel of a Party, provided such use complies with this section 7.

The rights and responsibilities under this section 7 shall survive the termination or cancellation of these Terms and Conditions for a period of two (2) years from such termination or cancellation.

8 Force Majeure

Neither party shall be liable for delays, damages or non-performance of its obligations caused by an impediment beyond its reasonable control, which a party could not have reasonably taken into account at the time of the conclusion of these Terms and Conditions, and whose consequences a party could not reasonably have avoided or overcome. Strike, lockout, boycott and other industrial action shall constitute a force majeure event also when the party concerned is the target or a party to such an action.

97 Term and Termination

These Terms and Conditions shall come into force on (i) the agreement of Customer/Individual User to the provisions hereof; or (ii) the moment Customer/Individual User started using the Service, whichever (i) or (ii) is earlier.
Without prejudice to any other rights, Service Provider may immediately terminate these Terms and Conditions if Individual User/Customer or its End User fails to comply with any of its terms and conditions. The provisions of these Terms and Conditions, which by their nature are intended to survive termination, will remain in effect after termination of these Terms and Conditions. Service Provider reserves the right, with or without notice, to discontinue update, upgrade and supplement services provided to Individual User/Customer or made available to Individual User/Customer through the use of the Service.
On any termination of these Terms and Conditions, all rights of use of the Service held by Customer and Users shall expire.

108 Other Terms

Customer and User agrees to comply with all applicable laws, rules and regulations, as well as being exclusively responsible for ensuring compliance with the relevant legislation relating to its rights to import, export or use the Service.
If any provision of these Terms and Conditions is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.

119 Changes to these Terms and Conditions or to the Service

Service Provider reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of these Terms and Conditions for security, legal, best practice or regulatory reasons. The most current version of these Terms and Conditions can be reviewed by clicking on the “Terms and Conditions” link located on the Service. Customer and User is responsible for checking these Terms and Conditions periodically for changes. If any future changes to these Terms and Conditions are unacceptable to Customer or User or cause Customer or User to no longer be in agreement or compliance with these Terms and Conditions, Customer or Individual User may terminate these Terms and Conditions by notifying Service Provider in writing thereof and must immediately cease using the Service and destroy all copies of the Service. Individual User’s/Customer’s and its End User’s continued use of the Service following any revision to these Terms and Conditions constitutes Individual User’s/Customer’s complete and irrevocable acceptance of any and all such changes.
Service Provider may modify the Service for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the Service. You agree that the Product may install or download the modifications automatically.

120 Governing Law and Place of Jurisdiction

This Agreement shall be governed by the laws of Finland, excluding all conflicts of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. Any controversy, dispute or claim arising out of these Terms and Conditions or the breach thereof will be finally settled by Pirkanmaa District Court in Tampere, Finland. Service Provider shall, in its sole discretion, also have the right to invoke the courts of law having jurisdiction at the domicile or place of business of Customer/Individual User.

Should you have any questions concerning these Terms and Conditions, or if you desire to contact Service Provider for any reason, please visit Service Provider’s website at http://www.novatron.fi.

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