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General terms and conditions of use for AurAir’s cloud services

Article 1 – Definitions

a. “General Terms and Conditions”: these general terms and conditions for Cloud Services.

b. “Order”: (i) the order form (which is made available digitally or otherwise),
(ii) the order via the website, apps or applications or
(iii) an order via an external distribution network of the AurAir device.

c. “Cloud Services”: the online cloud services, namely: displaying measured AurAir sensor values which have been sent to the AurAir Cloud and sending emails from the Cloud environment to users.

d. “Users”: the natural person or natural persons who have obtained lawful access to the Cloud Services.

e. “Effective Date”: the moment the user acquires the AurAir device.

f. “Agreement”: the agreement between AurAir and the User, consisting of the order, these Terms and Conditions and any attachments thereto.

g. “AurAir Platform”: the AurAir IT systems (including software and hardware provided by third parties) used to operate the Cloud Services.

h. “Confidential Information”: any information disclosed by or on behalf of a party (by any means, including in written, oral, visual or electronic form, and whether before or after the date of the Agreement), including any business, financial, commercial, technical, operational, organizational, legal, management and marketing information that is either marked as confidential or that could reasonably be considered confidential in the ordinary course of business.

Article 2 – Applicability

2.1 These General Terms and Conditions apply to the User.
2.2 The applicability of the user’s general terms and conditions is hereby expressly excluded.

Article 3 – The cloud services

3.1 The user is granted a non-exclusive and non-transferable right to use the cloud services, and this applies to the following purposes: displaying measured AurAir sensor values sent to the AurAir Cloud and sending emails from the Cloud environment to users.
3.2 The following are the responsibility of the user:
(i) to implement and follow AurAir’s instructions, manuals and documentation related to the Cloud services;
(ii) to ensure that they have suitable and properly functioning hardware (including IT, computers and mobile devices), software and internet access to the cloud services with sufficient capacity (collectively referred to as the “IT Infrastructure”);
(iii) to ensure that they have implemented adequate technical and organizational measures for the security of their IT infrastructure;
(iv) the transfer of data between its IT infrastructure and the AurAir platform;
and
(v) the proper configuration of the cloud services and the user’s IT infrastructure, including their interchangeability.
3.3 The User is granted a perpetual, non-exclusive, non-transferable right to use the results of the Cloud Services for its own internal purposes, unless otherwise expressly permitted in writing by AurAir.
3.4 Unless otherwise specifically agreed, the cloud services are provided without warranties, including (i) warranties with respect to the availability of the cloud services, errors and bug fixes, additional functionality, service requests, consequences and interoperability, and
(ii) warranties with respect to the information provided through the cloud services, and the accuracy, completeness or application of such information. For the avoidance of doubt, AurAir assumes no liability for the foregoing.
3.5 AurAir cannot guarantee that the information of the cloud services is suitable for the purpose for which it is consulted by the user. All information is offered in the state in which it actually is and as supplied without any (implicit) guarantee or warranty as to its soundness and suitability for a particular purpose or otherwise.
3.6 In addition, the User acknowledges and agrees that AurAir cannot guarantee that the User will be able to successfully apply the Cloud Services for their intended use, that it will be available continuously or at a consistent level of quality and connectivity, because such use is dependent in part on circumstances beyond AurAir’s reasonable control, including circumstances for which the User is responsible pursuant to this Article 3.
3.7 AurAir shall have the right to modify the Cloud Services, including its appearance, functionalities, content and interoperability with the User’s IT infrastructure.
3.8 AurAir has the right to suspend the provision of cloud services to the user (in whole or in part) if the user, in the reasonable opinion of AurAir, fails to comply with any of the obligations in the agreement or general terms and conditions.
3.9 AurAir is authorized to hire third parties for the execution of its services.

Article 4 – Usernames and passwords

4.1 The user will provide AurAir with the necessary access data such as account names, usernames and email addresses. The user has the responsibility to keep all access data (including usernames and passwords) confidential.
4.2 The user is responsible and liable for any use of the cloud services, even if the user has not agreed to or was not aware of such use.
4.3 The user shall not allow third parties to use the cloud services except with the prior written consent of AurAir.
4.4 The user shall ensure that, unless expressly stated otherwise, account data (including usernames and passwords) and any individual use of the cloud services through such account is limited to a specific person, and for example, not shared with other persons.

Article 5 – Liability and indemnification

5.1 Without prejudice to clause 6.3, under no circumstances shall AurAir be liable, in contract, tort (including negligence in each case), misrepresentation (other than willful misrepresentation), breach of statutory duty or otherwise, for loss of profits, loss of anticipated savings, loss of revenue, loss of business, loss or corruption of data, loss of use, loss of goodwill, loss due to delay or indirect or consequential loss of any kind.
5.2 Without prejudice to clauses 6.1 and 6.3, AurAir’s total liability, whether in contract, tort (which shall in any event include negligence), misrepresentation (other than willful misrepresentation), breach of statutory duty or otherwise, shall be limited to the net price of the AurAir device paid or payable by the user.
5.3 Nothing in the Agreement shall be deemed to exclude or limit AurAir’s liability with respect to:
(i) Loss or damage caused by intentional or gross negligence of AurAir or AurAir’s officers, employees, agents or contractors; or
(ii) Injury to or death of any person caused by AurAir or AurAir’s officers, employees, agents or contractors.
5.4 AurAir must be notified of claims for loss or damage within four (4) months from the date the damage was caused, failing which any such claim shall be deemed waived.
5.5 The User shall defend, indemnify and hold AurAir harmless against any claims, demands, proceedings, losses, damages, expenses and costs (including but not limited to court costs and reasonable legal fees) arising out of or related to the use of the Cloud Services by a third party who allows AurAir to use the Cloud Services.

Article 6 – Data protection

6.1 User guarantees that all information provided by him is correct and not misleading.
6.2 Personal data of users are treated with the utmost care in accordance with the Privacy statement and is hereby incorporated into these Terms of Use.

Article 7 – Intellectual Property

7.1 Subject to the limited rights expressly granted in Articles 3.1 and 3.3, AurAir reserves all rights to, ownership of and interests in the Cloud Services, including all related intellectual property rights. No rights are granted to the User other than those expressly stated in these Terms.
7.2 AurAir is the exclusive owner of all rights to, ownership of and interests (including intellectual property rights) in software code, algorithms and know-how, capabilities or data generated and/or collected by the AurAir Platform in the operation of the Cloud Services. To the extent necessary, the User hereby transfers all such rights, titles and interest (including intellectual property rights) to AurAir, which hereby accepts such transfer. For the avoidance of doubt, the foregoing only relates to technical and analytical data with respect to the operation and use of the AurAir Platform and the Cloud Services themselves, not to the User’s data, which at all times belongs to the User.
7.3 Except as permitted in the Agreement, the User shall not
(i) create derivative works based on the Cloud Services,
(ii) copy, “frame” or “mirror” any part or content of the Cloud Services,
(iii) reverse engineer the Cloud Services, or
(iv) use the Cloud Services to (a) develop a competing product or service, or (b) copy any features, functions or graphics of the Cloud Services.

Article 8 – Confidentiality

8.1 The party receiving confidential information shall exercise the same degree of care as it exercises in protecting the confidentiality of its own confidential information of a similar nature (but in no case less than reasonable care) and agrees
(i) not to use Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement, and
(ii) except with the disclosing party’s written consent to the contrary, to limit access to the disclosing party’s Confidential Information to its employees, affiliates, contractors and agents who require such access for purposes consistent with the Agreement and who have signed confidentiality agreements with the receiving party that contain protections no less stringent than those contained in these Terms.
8.2 If the Agreement is terminated, the Receiving Party shall immediately return or destroy all Confidential Information of the Disclosing Party upon request by the Disclosing Party.
8.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if required by law or regulation, provided that the Receiving Party notifies the Disclosing Party of such disclosure in advance (to the extent permitted by law) and reasonably cooperates, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.
8.4 The terms of the Agreement are confidential and may not be disclosed by either party without the prior consent of the other party.

Article 9 – Duration and termination

9.1 The agreement starts on the commencing date and runs indefinitely.
9.2 AurAir may, without prejudice to its other rights hereunder, terminate the Agreement with immediate effect if:
(i) the User materially breaches the Agreement, and such breach is not remedied within 15 (fifteen) days of written notice of the breach;
(ii) the user is granted a (provisional) moratorium or declared bankrupt or if a resolution is passed or a petition filed for the liquidation of the other party, that party has convened a meeting of creditors or has reached a settlement with creditors or has proposed to enter into such a settlement; or
(iii) a force majeure event lasts longer than sixty days.

Article 10 – Complaints procedure

10.1 Complaints about the cloud services should be reported by the user to AurAir (via: support@aurair.eu) within 2 (two) months after the complaint arose.
10.2 The complaint should contain as detailed as possible a description of the shortcoming, so that AurAir is able to respond adequately.

Article 11 – Other subjects

11.1 The User may not assign, transfer or dispose of all or part of its rights under the Agreement without the prior written consent of the other party.
11.2 The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of the remainder of the Agreement, and the parties shall use all reasonable efforts to agree, within a reasonable time, on lawful and reasonable deviations from the Agreement that will have, as far as possible, the same effect as the invalid or unenforceable provision would have had.
11.3 No amendment to the Agreement shall be valid or binding unless it is in writing (subject to AurAir’s right under Clause 11.4).
11.4 AurAir has the right to change these General Terms and Conditions, and such changes shall apply to the Agreement with effect from the date on which the User is notified thereof.
11.5 All legal relationships between AurAir and the user to which these conditions apply are governed by Dutch law.
11.6 All disputes relating to a legal relationship between AurAir and the user to which these conditions apply shall be submitted exclusively to the competent judge of the district Gelderland, location Arnhem. There is a dispute as referred to in the second paragraph as soon as one of the parties states so.
11.7 Applicability of any purchase- or other conditions of the user or of third parties on behalf of the user is therefore explicitly rejected by AurAir, unless these have been explicitly accepted in writing by AurAir.