Terms and conditions for subscription services
TERMS AND CONDITIONS
These terms and conditions (the Terms and Conditions) apply to any use of subscription services that allow Users to enter the Sensoneo Applications where they can monitor data collected from containers (i.e. the amount of waste in the container), plan optimal collection routes and access a semi-automated navigation system and which also includes predictions, exports, visualizations, graphics, full container management and feedback from citizens (the Services) ultimately provided by the conditions on which the SENSONEO j.s.a., with its registered office at Kollárova 27, 841 06 Bratislava, ID No. 50 746 057, registered with the Commercial Register of District Court Bratislava I, Section Sja, Insert No. 6/B (the Supplier).
SECTION – “USE OF SERVICES”
1. Applicability and interpretation
1.2 These Terms and Conditions are divided into [four] Sections applicable to the Users, as follows:
(a) The sections ”USE OF SERVICES” and “DEFINITIONS” shall apply to any User which uses the Sensoneo Applications or the Services;
(b) The section “SUPPLIER’S CONDITIONS” shall apply only to Users which purchase the User Subscription directly from the Supplier; and
(c) The section “RESELLERS’ CONDITIONS” shall apply only to Users which purchase the User Subscription from a Reseller.
1.3 Subject to clause 1.2, the Terms and Conditions published online at http://www.sensoneo.com shall by reference become an inseparable part of any Contract. If the User does not agree with all of the provisions of these Terms and Conditions applicable to the User under the above terms, the User is not entitled to access the Sensoneo Applications or use of the Services.
1.4 Certain features of the Sensoneo Applications and/or Services may be subject to additional guidelines, terms, or rules, which will be posted at the Sensoneo Applications in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms and Conditions.
1.5 These Terms and Conditions apply to any updates or supplements to the Sensoneo Applications and/or the Services, unless they come with separate terms, in which case those terms apply.
1.6 These Terms and Conditions shall constitute by a reference an inseparable part of each Contract concluded between the User and the Supplier or the Reseller (as applicable). In case of any discrepancy between the terms of these Terms and Conditions and the Contract, the terms of the Contract shall prevail.
1.7 If any open-source software is included in the Sensoneo Applications, the terms of an open-source license may override some of the terms of these Terms and Conditions.
2.1 The Supplier grants to the User a non-exclusive, non-transferable right to use or permit its Authorised Users to enter the Sensoneo Applications and use the Services and the Documentation during the Subscription Term solely for the purpose of receiving the Services.
2.2 In relation to the Authorised Users, the User undertakes that each Authorised User, whom the User entitles to access the Sensoneo Applications shall keep the User’s password confidential and shall not allow third parties to access the User’s Sensoneo Applications without the User’s prior consent.
3.1 The User shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Sensoneo Applications and/or Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the User, to disable the User’s access to any material that breaches the provisions of this clause.
3.2 The User shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Supplier and User:
(i) and except to the extent expressly permitted under these Terms and Conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Sensoneo Applications, Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Sensoneo Applications; or
(b) access all or any part of the Sensoneo Applications, Services and/or Documentation in order to build a product or service which competes with the Sensoneo Applications, Services and/or the Documentation; or
(c) use the Sensoneo Applications, Services and/or Documentation to provide services to third parties; or
(d) subject to clause 12, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Sensoneo Applications, Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Sensoneo Applications, Services and/or Documentation, other than as provided under this clause 2; and
(f) submit, store, or transmit any Personal Data into the Sensoneo Applications, except for Authorised User’s first name, surname, login name and password
3.3 The User shall use all reasonable endeavours to prevent any unauthorised access to the Sensoneo Applications or use of the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
3.4 The rights provided under this clause 3 are granted to the User only, and shall not be considered granted to any subsidiary or holding company of the User.
3.5 The User shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to these Terms and Conditions; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to provide the Services;
(b) comply with all applicable laws and regulations with respect to its activities under these Terms and Conditions;
(c) carry out all other User responsibilities set out in these Terms and Conditions in a timely and efficient manner. In the event of any delays in the User’s provision of such assistance as agreed in these Terms and Conditions, the Supplier or the Reseller (as applicable) may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Sensoneo Applications, Services and/or the Documentation in accordance with these Terms and Conditions and shall be responsible for any Authorised User’s breach of these Terms and Conditions;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Terms and Conditions, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the User’s network connections or telecommunications links or caused by the internet.
4.1 The Services and access to the Sensoneo Applications and Documentation will be available only the Subscription Term.
4.2 Unless stipulated otherwise in the Contract, the Supplier will use commercially reasonable endeavours, the Services will available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am CET time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the User at least 6 Normal Business Hours’ notice in advance.
4.3 Unless the Contract stipulates otherwise, the Contractor will directly or through the Supplier (as applicable), as part of the Services and at no additional cost to the User, provide the User with Support Services during Normal Business Hours.
5.1 The User acknowledges that all Intellectual Property Rights to the Sensoneo Applications, Services and Documentation are owned by SENSONEO j.s.a., with its registered office at Kollárova 27, 841 06 Bratislava, ID No. 50 746 057, registered with the Commercial Register of District Court Bratislava I, Section Sja, Insert No. 6/B or its licensors. The use of the Sensoneo Applications and/or Services by the User does not constitute a transfer of any rights, titles and or interests in or to the Intellectual Property Rights. The Supplier reserves all rights not granted under these Terms and Conditions.
The User undertakes to repay the Supplier any damages and costs (including reasonable costs of legal representation) arising out of or in connection with the User’s use of the Sensoneo Applications, Services and/or Documentation, (i) in violation of these Terms and Conditions or (ii) in violation of applicable laws and regulations.
These Terms and Conditions may be changed from time to time by the Supplier. In case of any substantial changes the Supplier shall notify the User by e-mail (to the last e-mail address provided to it by each User, if any) and/ or by prominently posting a notice of the change on [www.sensoneo.com]. The change, revised or amended wording of these Terms and Conditions shall become effective  days following the Supplier dispatch of an e-mail notice to the User (if applicable) or following the notice about such change on [www.sensoneo.com]. In case the Supplier is not able to deliver the e-mail notification as described in this clause to the e-mail address the User has provided to the Supplier, for example because the e-mail address is not valid, the Supplier dispatch of the e-mail containing such notice shall nonetheless constitute an effective notice of the change of these Terms and Conditions. The User’s continued use of the Sensoneo Applications and Services following such notice shall indicate the User’s acknowledgement of such changes, revisions and/ or amendments and also the User’s agreement to be bound by the new wording of the Terms and Conditions. The changes will be immediately effective for new Users of the Sensoneo Applications and Services.
10.1 If any provision (or part of a provision) of these Terms and Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
10.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
The User shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions.
These Terms and Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Slovak Republic.
The parties irrevocably agree that the courts of Slovak Republic shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms and Conditions or their subject matter or formation (including non-contractual disputes or claims).
SECTION – “RESELLER’S CONDITIONS”
14. No contract with the supplier
14.1 Nothing in these Terms and Conditions shall by itself presume that the Contract is concluded directly between the Supplier and the User. If the Contract is concluded with a Contracting Party other than the Supplier, the Supplier shall be considered a Contractor’s subcontractor and it shall not have any contractual liability and/or responsibility of whatsoever toward the User.
14.2 The Supplier and the Reseller may agree that in certain circumstances the Contract concluded with the Reseller may be assigned from the Reseller to the Supplier and the User hereby gives its consent to such assignment and agrees to provide any such cooperation which may be reasonably required to effectively process any such assignment with as little effect on the Services as possible.
In case of any non-contractual liability of the Supplier towards the User that may arise under applicable law which is incapable of exclusion by agreement between the Supplier and User, it shall be deemed that, to the maximum extent possible, the terms of clause 18 “Limitation of Liability” shall apply to any such non-contractual liability and the User agrees and accepts such use of clause 18 “Limitation of Liability”.
16. Relation with the Cotnract
The User hereby acknowledges and agrees that the sections “USE OF SERVICES” and “Definitions” shall constitute by reference an inseparable part of each Contract concluded with the Reseller and rights arising pursuant to the Section – “USE OF SERVICES” to the Supplier are made exclusively for the benefit of the Supplier which shall be entitled to exercise any such rights.
SECTION – SUPPLIER’S CONDITIONS
17. Supplier’s obligations
17.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
17.2 The undertaking in clause 18.1 shall not apply to the extent of any non-conformance which is caused by use of the Sensoneo Applications and/or Services contrary to the Supplier’s instructions, or modification or alteration of the Sensoneo Applications and/or Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Sensoneo Applications and/or Services do not conform with the foregoing undertaking, the Service Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the User with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the User’s sole and exclusive remedy for any breach of the undertaking set out in clause 18.1. Notwithstanding the foregoing, neither the Service Supplier nor the Contractor:
(a) warrant that the User’s use of the Sensoneo Applications and/or Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the User through the Sensoneo Applications will meet the User’s requirements; and
(b) is responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the User acknowledges that the Sensoneo Applications, Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
17.3 These Terms and Conditions shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms and Conditions.
17.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms and Conditions.
18.1 This clause 18 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the User:
(a) arising under or in connection with these Terms and Conditions;
(b) in respect of any use made by the User of the Sensoneo Applications, Services and Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms and Conditions.
18.2 Except as expressly and specifically provided in these Terms and Conditions:
(a) the User assumes sole responsibility for results obtained from the use of the Sensoneo Applications, Services and the Documentation by the User, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the User in connection with the Services, or any actions taken by the Supplier at the User’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by law are, to the fullest extent permitted by applicable law, excluded from these Terms and Conditions; and
(c) the Sensoneo Applications, Services and the Documentation are provided to the User on an “as is” basis.
18.3 Subject to clause 20.2:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms and Conditions; and
(b) the Supplier’s total aggregate liability in contract, non-contractual obligations (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total subscription fees paid for the User Subscriptions during the [ months /  year] immediately preceding the date on which the claim arose and in case of a non-contractual liability by the amount of [EURO 1.000].
18.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the User to the extent that the alleged infringement is based on:
(a) a modification of the Sensoneo Applications, Services or Documentation by anyone other than the Supplier; or
(b) the User’s use of the Sensoneo Applications, Services or Documentation in a manner contrary to the instructions given to the User by the Supplier; or
(c) the User’s use of the Sensoneo Applications, Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
19.1 The User Subscription shall, unless otherwise terminated as provided in this clause 21, commence on the Effective Date and shall continue, unless:
(a) either party notifies the other party of termination, in writing, with a notice period of [60 days]; or
(b) is otherwise terminated in accordance with the provisions of these Terms and Conditions.
19.2 Without affecting any other right or remedy available to it, the Supplier is entitled to terminate the User Subscription with immediate effect by giving written notice to the User, if:
(a) the User fails to pay any amount due under these Terms and Conditions on the due date for payment and remains in default not less than  days after being notified in writing to carry out such payment;
(b) the User commits a material breach of any other term of these Terms and Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of  days after being notified in writing to do so;
(c) the User repeatedly breaches any of the terms of these Terms and Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms and Conditions;
(d) the User suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts in accordance with the applicable legislation;
(e) the User commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of the User;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the User other than for the sole purpose of a scheme for a solvent amalgamation of the User with one or more other companies or the solvent reconstruction of the User;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the User;
(h) any event occurs, or proceeding is taken, with respect to the User in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 21.2(d) to clause 21.2(g)(inclusive).
19.3 On termination of the User Subscription for any reason:
(a) the right to use the Sensoneo Applications and/or Services shall immediately terminate; and
(b) any rights, remedies, obligations or liabilities of the User towards the Supplier that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Terms and Conditions which existed at or before the date of termination shall not be affected or prejudiced.
The Supplier shall have no liability to the User under these Terms and Conditions if it is prevented from or delayed in performing its obligations under these Terms and Conditions, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the User is notified of such an event and its expected duration.
No failure or delay by the Supplier to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
22.1 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms and Conditions.
SECTION – “DEFINITIONS”
The definitions and rules of interpretation in this clause apply to this agreement.
Authorised Users: employees and independent contractors of the User who are authorised by the User to use the Sensoneo Applications, Services and the Documentation.
Contract: any commercial contract concluded in oral, written or electronic form pursuant to which the User purchases a User Subscription either from the Supplier or the Reseller.
Business Day: a day other than a Saturday, Sunday or public holiday in Slovakia when banks in Bratislava are open for business.
Documentation: the document made available to the User by the Supplier online via [www.sensoneo.com] or such other web address notified by the Supplier to the User from time to time which sets out a description of the Services and the User instructions for the Sensoneo Applications.
Effective Date: the date on which the User accepts these Terms and Conditions.
Intellectual Property Rights: any or all of the following and all statutory and/or common law rights throughout the world in, arising out of, or associated therewith: (i) all patents, patent applications, patent disclosures and other patent rights, (ii) all rights in trade secrets, proprietary and/or confidential information, know-how and technology, including all rights in inventions (whether patentable or not) that provide advantages over competitors who do not know or use the inventions, (iii) all copyrights, copyright registrations and copyright applications, “moral” rights (to the extent assignable under applicable law), authors’ rights and mask work rights, (iv) all trademarks, service marks, trade dress, logos, trade names, and corporate names, and all registrations and applications thereof, (v) all sui generis database rights and other rights in databases and data collections, (vi) all rights in domain names, web addresses and sites and all applications and registrations for domain names, and (vii) any other proprietary rights relating to technology, including all similar, corresponding or equivalent rights to any of the foregoing in any part of the world. For the purposes of these Terms and Conditions, the reference to Intellectual Property Rights means all the Intellectual Property Rights created, pertaining to any/or arising in respect to the Sensoneo Applications, Documentation and provision of the Services under these Terms and Conditions.
Normal Business Hours: [8.00 am to 6.00 pm] local CET time, each Business Day.
Services: as defined in the Preamble.
Subscription Term: means the term during which the Supplier shall provide Services to the User.
Support Services: technical support from the Supplier provided by telephone, e-mail, web and facsimile together with product releases, upgrades, modification, enhancements and revision notifications on an as needed basis.
Personal Data: ‘any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
Reseller: any party that provides the Services in its own name and on its own behalf no matter whether such services are provided individually or as a part of other services provided by the Reseller or any third party.
User: a party that purchases the User Subscription either from the Supplier or a Reseller.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the User experience, including worms, trojan horses, viruses and other similar things or devices.
Sensoneo Applications: the online software applications provided by the Supplier as part of the Services.