Please read these terms and conditions carefully before registering for a trial and/or a subscription for the Services offered on this website operated by Cumulocity GmbH of Speditionstraße 13, 40221 Düsseldorf, Germany, company number HRB 68832 at District Court Düsseldorf, and VAT number DE 285583788.
By registering for a trial and/or a subscription for the Services at cumulocity.com and clicking on the accept buttons, you the Customer agree to be legally bound by
- These terms and conditions,
- The service level agreement,
These may be modified from time to time.
In this Agreement, the following words shall have the following meanings:
"Confidential Information" Any and all information in whatsoever form relating to Cumulocity or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of Cumulocity or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party's possession by virtue of its entry into this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
"Cumulocity" means Cumulocity GmbH;
"Fees" are as set out in the pricing page of Cumulocity website where the Customer may order Services online;
"Intellectual Property Rights" All copyrights, patents, utility models, trade marks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
"Operating Rules" Any Cumulocity rules or protocols, in whatever form recorded or set, that affect the Customer's access to or use of the Services, and made available by Cumulocity from time to time to the Customer;
"Services" The software application services of Cumulocity, ordered online by the Customer and set out in the confirmation invoice sent to the Customer which are made available to the Customer in accordance with the service level agreement set out in Schedule 1 of this Agreement (together with any Operating Rules) and including any computer software programmes and, if appropriate, Updates thereto;
"Term" If the Customer does not unsubscribe prior to the expiry of the Trial Period, the term shall automatically start from the end of the Trial Period and shall continue for an unlimited period until either party terminates in accordance with the provisions of this Agreement;
"Updates" means any new or updated applications services or tools (including any computer software programmes) made available by Cumulocity as part of the Services.
"Customer" means the company or person who completes the online registration form for use of the Services at cumulocity.com.
"Trial Period" means the free trial period starting on the date that the Customer registers for the free Services on the Cumulocity website and ending 30 days later upon the expiry of the free trial period. Each Customer is only entitled to one free trial period;
2. Supply of Services
2.1 Cumulocity is entitled to refuse any order placed by a Customer. If an order is accepted, Cumulocity will confirm acceptance via email. Upon acceptance of the order the Customer engages Cumulocity and Cumulocity agrees to provide the Services in accordance with the terms of this Agreement.
2.2 Cumulocity agrees to provide the Services for the Trial Period and/or Term or sooner termination in accordance with the terms of this Agreement.
2.3 Cumulocity warrants that by performing the Services it will not knowingly infringe the rights of any third party (including but not limited to Intellectual Property Rights) in any jurisdiction or be in breach of any obligations it may have to a third party.
3.1 Subject to the Customer's payment of the Fees (where applicable), the Customer is granted a non-exclusive and non-transferable licence to use the Services (including any associated software, Intellectual Property Rights and Confidential Information) during the Trial Period and/or Term. Such licence shall permit the Customer to make such copies of software or other information as are required for the Customer to receive the Services. Where open source software is used as part of the Services, such software use by the Customer will be subject to the terms of the open source licences.
3.2 All Intellectual Property Rights and title to the Services (save to the extent incorporating any Customer or third party owned item) shall remain with Cumulocity and/or its licensors and no interest or ownership the Services, the Intellectual Property Rights or otherwise is conveyed to the Customer under this Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.
3.3 Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software (and upon written request by the Customer identifying relevant details of the Services(s) with which interoperability is sought and the nature of the information needed), Cumulocity will provide access to relevant source code or information. Cumulocity has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
3.4 Unless otherwise specified in this Agreement, the Services are provided and may be used solely by the Customer as part of the Customer's business. The Customer may not
- Lease, loan, resell or otherwise distribute the Services save as permitted in writing by Cumulocity;
- Use the Services to provide ancillary services related to the Services; or
- Except as permitted in this Agreement, permit access to or use of the Services by or on behalf of any third party.
3.5 The Customer warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement.
4. Fees, Invoicing and Payment
4.1 In consideration of the provision of the Services by Cumulocity, the Customer shall pay Cumulocity the Fees. The Fee is the price in force at the date and time of ordering. All Fees are exclusive of VAT.
4.2 Cumulocity shall issue invoices to the Customer monthly for the standard edition, or, upon the Customer's request, annually in advance of the respective year.
4.3 All invoices shall be rendered in Euros and shall be payable immediately in full by bank transfer. The Customer is responsible for paying all bank charges.
4.4 Cumulocity may suspend a Customers account if any payment is outstanding for 14 days or more. If a Customer fails to pay any outstanding Fees within 30 days of the due date Cumulocity may delete the Customer's account and all Customer data.
4.5 The Customer is not entitled to any refund of Fees for partial use of the Services, termination or suspension of the Services or failure of Cumulocity to comply with the service level agreement.
5.1 Cumulocity warrants to the Customer that it has the right to license the Services and that the Services will operate to provide the facilities and functions implemented by Cumulocity. The foregoing warranties shall not
- Cover deficiencies or damages relating to any third party components not furnished by Cumulocity; or
- Any third party provided connectivity necessary for the provision or use of the Services.
In the event of a breach of the warranties under this clause 5, Cumulocity shall have no liability or obligations to the Customer other than to reimburse the Fees paid for the month(s) in which the Services are affected.
5.2 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free. This clause shall survive the termination of this Agreement.
5.3 The Customer acknowledges that Services may not be used for high-risk applications where precise locations or features on maps are essential to the Customer, for example use of the Services by the emergency services.
5.4 The Customer acknowledges that Services may not be used as part of performance testing or stress testing without the explicit written permission of Cumulocity. It is not allowed to use Cumulocity to overload the Service with intent, whether for test purposes nor to check on performance limits of connected devices or Cumulocity itself. The customer must take measures to avoid accidental overload.
5.5 Cumulocity can be used to remote-control devices and machinery. The Customer is responsible for the safe and correct use of the remote-control facilities provided by Cumulocity. In particular, Cumulocity cannot be held responsible for any production outages, machine defects or accidents resulting from the unsafe use of Cumulocity services.
5.6 Cumulocity services are protected by passwords and other security measures. However, the customer is himself responsible for setting security guidelines to prevent unauthorized access to customer accounts and devices. In particular, Cumulocity can not be held responsible for data breaches or machine misuse resulting from the use of unsafe passwords or lack of security implementation on the customer side or on the equipment and devices used by the customer.
6.1 Cumulocity does not exclude or limit its liability to the Customer for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct of Cumulocity in connection with the provision of the Services.
6.2 In no event shall Cumulocity be liable to the Customer whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any Consequential Loss. "Consequential Loss" shall for the purposes of this clause mean
- Pure economic loss;
- Losses incurred by any client of the Customer or other third party;
- Loss of profits (whether categorised as direct or indirect loss);
- Losses arising from business interruption;
- Loss of business revenue, goodwill or anticipated savings;
- Losses whether or not occurring in the normal course of business, wasted management or staff time and;
- Loss or corruption of data.
6.3 Subject to clauses 6.1 and 6.2, the total liability of Cumulocity (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed one hundred (100) per cent of the total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer to Cumulocity during the preceding twelve (12) month period or, if the duration of the Agreement has been less than twelve (12) months, such shorter period, as applicable.
6.4 In no event shall the Customer raise any claim under this Agreement more than one (1) year after
- The discovery of the circumstances giving rise to such claim; or
- The effective date of the termination of this Agreement.
This clause shall survive the termination of this Agreement.
6.5 The Customer acknowledges and agrees that in entering into this Agreement, the Customer had recourse to its own skill and judgement and has not relied on any representations made by Cumulocity, any employees or agents of Cumulocity.
7. Intellectual Property
7.1 Cumulocity, at its own expense, shall
- Defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis of infringement of any Intellectual Property Rights by the Services (excluding any claim or suit deriving from any Customer provided item); and
- Pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that:
- The Customer notifies Cumulocity promptly of each such claim or suit;
- Cumulocity is given sole control of the defence and/or settlement; and the
- Customer fully co-operates and provides all reasonable assistance to Cumulocity in the defence or settlement.
7.2 If all or any part of the Services becomes, or in the opinion of Cumulocity may become, the subject of a claim or suit of infringement, Cumulocity at its own expense and sole discretion may:
- Procure for the Customer the right to continue to use the Services or the affected part thereof; or
- Replace the Services or affected part with other suitable non-infringing service(s); or
- Modify the Services or affected part to make the same non-infringing.
7.3 Cumulocity shall have no obligations under this clause 7 to the extent that a claim is based on:
- The combination, operation or use of the Services with other services or software not provided by Cumulocity, if such infringement would have been avoided in the absence of such combination, operation or use; or
- Use of the Services in any manner inconsistent with this Agreement; or
- The negligence or wilful misconduct of the Customer.
7.4 The Customer shall indemnify and hold Cumulocity and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from
- Any claimed infringement or violation by the Customer of any Intellectual Property Rights with respect to the Customer's use of the Services outside the scope of this Agreement;
- Any access to or use of the Services by a third party, and
- Use by Cumulocity of any Customer provided item.
8.1 Subject to clause 7, each party ("the first party") indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents ("the second party") against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceeding or demand that may be brought, made or prosecuted against the second party by any person arising out of or as a consequence of an unlawful or negligent act or omission of the first party, its officers, servants or agents in any way connected with this Agreement whether arising from any failure by the first party to comply with the terms of this Agreement or otherwise.
8.2 The indemnity contained in clause 8.1 above extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
9.1 Cumulocity may immediately terminate this Agreement or the provision of any Services provided pursuant to this Agreement if the Customer has used or permitted the use of the Services otherwise than in accordance with this Agreement.
9.2 The Customer shall be entitled to terminate this Agreement for convenience at any time by unsubscribing. No fees paid or payable prior to termination shall be refunded.
9.3 Cumulocity shall be entitled to terminate this Agreement at any time without notice if:
- The Customer ceases or threatens to cease to carry on business; or
- The Customer is unable to pay its debts or enters into compulsory or voluntary liquidation;
- The Customer compounds with or convenes a meeting of its creditors or has a receiver, manager or similar official appointed in respect of its assets; or
- The Customer has an administrator appointed or documents are filed with the court for the appointment of an administrator or notice is given of an intention to appoint an administrator by such party or its directors or by a qualifying floating charge holder (as defined in the Insolvency Act 1986, paragraph 14 schedule B1); or
- Any similar event occurs under the law of any other jurisdiction in respect of the Customer.
9.4 Cumulocity shall be entitled to terminate this Agreement on written notice to the Customer if:
- The Customer commits a material breach of any term of this Agreement; or
- Cumulocity decides to cease providing the Services generally.
9.5 For a period of up to 7 days after termination of this Agreement for whatever reason, the Customer shall be permitted to make a backup of its Customer data.
9.6 Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other. Clauses 4, 7, 8, 9, 10, 11 and 12 shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
10. Confidential Information
10.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
10.2 Either party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
10.3 Both parties agree to return all documents and other materials containing Confidential Information immediately upon completion of the Services.
10.4 The obligations of confidentiality under this Agreement do not extend to information that:
- Was rightfully in the possession of the receiving party before the negotiations leading to this Agreement;
- Is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or
- Is required by law to be disclosed.
11. Data Protection and Customer Data
11.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
11.2 To the extent that personal data is processed using the Services, the parties acknowledge that Cumulocity is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations. Cumulocity agrees that it will only process personal data on behalf of, and in the name of, the Customer.
11.3 Cumulocity shall ensure that the personal data, which it supplies or discloses to Cumulocity, has been obtained fairly and lawfully and that it will obtain all necessary approvals from persons whose data is being processed and registrations with authorities to permit Cumulocity to transfer personal data to third parties pursuant to its obligations under this Agreement.
11.4 Cumulocity confirms that it
- Merely acts as a data processor;
- Will only process data in accordance with the instructions of the data controller; and
- Has taken, as well as its subcontractors, licensors and hosts, sufficient technical and organisational measures to safeguard personal data.
11.5 If a third party alleges infringement of its data protection rights, Cumulocity shall be entitled to take measures necessary to prevent the infringement of a third party's rights from continuing.
11.7 Customers are responsible for keeping copies of their data used and stored within the Services on Cumulocity's servers. Customers are responsible for removing all Customer data prior to the termination or expiry of this Agreement. Notwithstanding the aforesaid, the company reserves the right to remove all Customer data six months after the expiry or termination of this Agreement without giving the Customer any prior notice of such deletion.
12. Third Parties
12.1 Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the provision of the Services is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any third party.
13. Force Majeure
13.1 Except with respect to obligations to pay the Fees or other charges, "Force Majeure" means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where Cumulocity ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.
13.2 If a party is wholly or partially precluded from complying with its obligations under this Agreement by Force Majeure, then that party's obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure.
13.3 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.
14. Governing Law and Jurisdiction
14.1 This Agreement is governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.
15.1 Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
15.2 The Customer is not permitted to assign any of the rights, benefits or obligations arising from this Agreement.
15.3 All notices shall be given in writing (which includes email). All post and fax notices shall be deemed to have been duly given if sent by registered post or acknowledged fax to the address of Cumulocity stated at the beginning of this Agreement and if sent by email to email@example.com. In relation to the Customer, all post and fax notices shall be deemed to have been duly given if sent by registered post or acknowledged fax to the address provided for invoices to be issued or an email address used by the Customer.
15.4 This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.