PLEASE READ THESE TERMS AND CONDITIONS BEFORE USING THE EVERYNET SERVICE. BY
USING THE EVERYNET SERVICE THE USER AGREES TO THE TERMS CONTAINED
HEREIN, YOU (USER OR DULY AUTHORIZED REPRESENTATIVE TO THE USER) CONSENT
TO BE BOUND BY THIS TERMS AND CONDITIONS. IF YOU DO NOT OR CANNOT AGREE
TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THEN EITHER DO NOT USE
THE SERVICE OR CONTACT EVERYNET.
USER DEFINITION any
entity that uses the Everynet coverage either under direct contract
with Everynet or by virtue of a contractual relationship with a verified
reseller of Everynet or its subsidiaries.
EVERYNET NETWORK Everynet owns, maintains, and operates the Everynet Network in the relevant geographies.
EVERYNET COVERAGE. Everynet
Network coverage estimates are updated on a monthly basis. The User
acknowledges and agrees that due to the complicated matter of radio
frequency propagation, Everynet provides coverage estimates on the best
endeavours basis and is not liable for the accuracy of coverage
estimates.
REQUESTING NEW COVERAGE.
If Everynet coverage is not available, the User may contact Everynet to
request coverage expansion or extension. In this case, Everynet may
provide specific commercial terms for making such additional coverage
available.
RIGHT OF USE COVERAGE Everynet
grants the User the right to use (including reselling the use of the
Everynet Network to other end customers) the Everynet Network in a
non-exclusive nature.
LIMITATIONS OF USE. The User is not authorized to either reverse engineer or work around technical limitations of the Everynet Network. The User may not disable, manipulate, or attempt to circumvent any billing mechanism that measures usage of the Everynet Network.
RESPONSIBILITY FOR THE USE OF THE EVERYNET NETWORK:
The User is fully responsible for usage of the Everynet Network whether
for its own or third parties' use. Accordingly, the User warrants that
such a use will comply with all provisions of this Terms & Contions
and the User will indemnify and hold Everynet harmless for any Damage
caused by the User itself or third parties.
EXTRAORDINARY EVENTS. The
User agrees to immediately, as soon as is aware of, to notify Everynet
of any expected or actual event, anomaly, defect or failure that may
directly or indirectly affect, harm or cause interference in the
Everynet Network ("Extraordinary Event").
COOPERATION FOR PREVENTION OF INTERFERENCE. The
User acknowledges and agrees that Devices are operating in an
unlicensed band therefore, it must adopt on its responsibility and cost,
adequate and sufficient measures to prevent and to interrupt any
interference caused by any third party’s devices. The User shall
cooperate with Everynet to avoid radio interference and investigate
claims of Interference. Within a period of five (5) days from Everynet's
request, the Userwill provide Everynet with a list of the
specifications, including frequencies used, of all the User’s Devices
necessary to resolve or investigate Customer Complaints or Interference
Claims.
SUSPENSION OF USE Everynet
may suspend the use and any data exchange performed by Everynet Network
in the following cases: (i) breach of any obligations (including but
not limited to financial default by the User ) by the User ; (ii) a
court order or act of any Governmental Authority; (iii) non-payment of
the Consideration at its due date by the User; (iv) in case of events
that harm Everynet network;
TERM & TERMINATION The term and termination follow the terms set in the agreement between Everynet and the User.
INDEMNIFICATION. The
User shall indemnify and hold Everynet harmless for any Damages
incurred by the User when using Everynet’s Network. The indemnification
applies to: (i) Damages (including reasonable expenses and reasonable
costs for legal proceedings) arising from the use of the Everynet
Network by the User ; (ii) a breach of the Applicable Law by the User ; (iii) acts, omissions, or violations of the User .
This
indemnity does not apply to Claims insofar as they arise due to
negligence or misconduct of the Party seeking compensation or
Indemnities.
Notwithstanding
anything to the contrary contained in this terms and conditions,
neither the User nor Everynet shall be liable to the other, nor to the
indemnitees of the other, for any indirect damages or loss of profits
incurred, even when they have been notified of the possibility of
occurrence.
Neither Party shall be liable to the other Party for an amount in excess of the total amount paid by the User in the last twelve (12) months.
The
exclusions and limitations of liability referred to in this terms and
conditions are only applicable to the extent permitted by law. These
exclusions and limitations of liability cease to apply if and insofar as
the damage is caused by intent or deliberate recklessness on the part
of Everynet or the Client.
CYBER SECURITY. Everynet
shall use reasonable efforts (i.e. use industry standard anti-malware
and cyber security software) to prevent cyberattacks and malware.
Everynet shall not in any circumstance be liable for any damages on
Everynet Network including, without limitation, (i) invasion of malware
of any kind (ii) any security breach or (iii) interruption and removal
of system information for any purpose.
USER ACTIVITY RISK. The
User is responsible for all risks related to its activities, for
evaluating the peculiarities of the activities it carries out and for
seeking solutions that guarantee the level of service and security it
deems appropriate, including but not limited to redundancy or
alternative technological solutions. Therefore, Everynet shall not be
liable for Damages and claims related to the User’s activities due to
the use of the Everynet Network. In addition, the User acknowledges
and agrees that there shall be no relationship between Everynet and the
User. The User shall indemnify and hold Everynet harmless for all and
any claims issued by the User.
DATA. Data
encryption and cryptographic message integrity codes are mandatory.
During the User's use of the Everynet Network, End Users may transmit
data messages through the Everynet Network. The User acknowledges and
agrees that Everynet has no access to the encrypted data contents and
neither can Everynet forge message integrity codes. The User shall be
solely responsible for the contents of any message transacted through
the User’s account at the Everynet Network whether this message was
originated, (i) by the User, (ii) by User’s contracted suppliers, (iii)
by third parties acting on User’s behalf and for its account and order,
(iv) by User’s customers, (v) by User and/or (vii) any other individuals
or legal entities who are transmitting data through the access provided
by Everynet to the User and not parties of the agreement between the
User. The User and its representatives are solely responsible for
complying with all legal provisions necessary for the transmission of
data (such as those relating to privacy in the case of the transmission
of personal data). The User shall be responsible for any Claims that
require sharing, disclosure, exclusion and any other type of processing
of such data. The Usershall at all times defend, indemnify and hold
Everynet harmless from and against any and all third-party claims,
damages, liabilities, costs and expenses, including legal costs and
reasonable counsel fees, arising out of or related to the content of any
message transmitted through the Everynet Network by the User or User’s
End Users.
INTELLECTUAL PROPERTY. The
User hereby recognises that Everynet retains all Intellectual Property
Rights in and to the Everynet Technology which is used to perform its
obligations under the agreement with the User. The User hereby grants
Everynet and shall procure that its Affiliates will grant Everynet a
non-exclusive, transferable, world-wide, royalty-free, fully paid-up,
perpetual licence to use any modification or improvement to the Everynet
Technology by the User in the performance of the use of Everynet
Network. The licence granted to Everynet under this clause includes the
right to sub-license and transfer such modifications and improvements to
any third parties, including affiliates.
CONFIDENTIALITY. No
Confidential Information disclosed by one party ("Disclosing Party") to
the other party ("Recipient Party") may be disclosed by the Recipient
Party to any person except: (i) employees, officers, directors,
auditors, subcontractors or affiliates of the Recipient Party requiring
the Confidential Information; (ii) with the prior written consent of the
Disclosing Party which consent may be given or withheld in its absolute
discretion; or (iii) if the Recipient Party is required to disclose, in
full or in part, pursuant to a judgement or decision issued by a
competent court or another judicial or administrative body with
jurisdiction over the Recipient Party.
USE OF CONFIDENTIAL INFORMATION. No
Confidential Information of the Disclosing Party may be used by the
Recipient Party for any purpose other than the performance of the
Recipient Party’s obligations or the exercise of the Recipient Party’s
rights. The Recipient Party will take all necessary steps to ensure the
confidentiality of all Confidential Information provided to it by the
Disclosing Party. In any event, the Recipient Party undertakes to
protect this information with the same degree of care and measures
equivalent to the measures implemented to ensure the confidentiality of
its own key information and confidential business information. Any Party
disclosing Confidential Information must use all reasonable efforts to
ensure that persons receiving Confidential Information from it: (i) do
not disclose or use the Confidential Information; (ii) sign a written
confidentiality undertaking in terms at least as restrictive as those
binding the Recipient Party. If a demand is made that could ultimately
lead to an obligation, the Recipient Party is obliged to: (i)
immediately notify the Disclosing Party of the demand and all its
related circumstances; (ii) without delay, consult with the Disclosing
Party as to the justifiability of legally available actions aimed at
decreasing the scope of disclosed information or of denial of the
demand, and to pursue, at its own cost, all available legal measures;
and (iii) make all efforts to ensure that the Confidential Information
is not disclosed further, if the disclosure of the Confidential
Information following that demand is necessary or if it is deemed
advisable.
EXCEPTIONS TO CONFIDENTIALITY OBLIGATIONS. Confidentiality
obligations do not apply to Confidential Information which: (i) is in
or becomes part of the public domain other than through breach of this
Terms & Contions or an obligation of confidence owed to the
Disclosing Party; or (ii) the Recipient Party can prove that they have
received a non-confidential information by the Disclosing Party (unless
that knowledge arose from disclosure of information in breach of an
obligation of confidence).
CLOUD PLATFORM RELEASE POLICY. Everynet’s
connectivity services are consumed through its API and Everynet commits
to not break the API towards applications and gateways within the major
version of Everynet Cloud Platform. Everynet will not perform scheduled
maintenance outside of the User business hours to ensure that the User
operations team is available during the maintenance. Everynet reserves
the right to apply hot fixes at any time. Everynet issue scheduled
maintenance notifications through status: 24 hours before updates that
do not lead to traffic loss; 8 days before updates that may lead to
traffic loss; 24 days before updates that break API compatibility.
Everynet does not issue maintenance notifications for hot-fixes. We
supply post-mortem explanations in case hot-fixing leads to traffic
loss. Everynet reserves the right to fix bugs in API in minor updates.
This may break applications that rely on buggy behaviour. Release notes
are distributed the next day after the maintenance is done.
TECHNICAL SUPPORT Everynet technical support is directed to the User and delivered according with the agreement between the User and Everynet.
FAIR USE. Everynet’s
service is billed on the basis of device activations and messages – and
is subject to fair use conditions according with the agreement between
Everynet and the User.
CHANGES OF THE TERMS AND CONDITIONS. Everynet
reserves the right to change the terms and conditions at its own
discretion. Continued usage of the Everynet service will constitute
consent with any revised terms. Changes to terms and conditions will be
published directly on this page and reflected with an update to the
version number of this document
APPLICABLE LAW. These terms and conditions and
any non-contractual obligation arising out of or in connection with it
shall exclusively be governed by, and construed in accordance with, the
Laws of the Netherlands. All disputes arising out of or in connection
with the use of Everynet Network, including disputes concerning their
existence, their validity and any non-contractual obligation, will be
finally and exclusively resolved by arbitration in accordance with the
Arbitration Rules of the Arbitration Institute of the Netherlands
(Arbitragereglement van het Nederlands Arbitrage Instituut, the "NAI
Arbitration Rules"), taking into account that: (a) the legal seat of the
arbitration (plaats van arbitrage) will be Amsterdam, the Netherlands;
and (b) the language of the arbitration will be English.