Xsite® MANAGE – End User Terms and Conditions 15.05.2020
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:
(a) alter, adapt, modify, or translate the Service or any part thereof in any manner;
(b) decompile, disassemble or reverse-engineer the Service or any part thereof or manipulate the Service 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 Service Provider;
(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.
Use of Data
Prerequisite for using the Service is, and Customer and User acknowledge and accept, that:
a) the Service sends location information to the Service Provider;
b) User is entitled to disclose and share location information, measured as-built data as well as model files used by the Service to the Service Provider;
c) 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.
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 OR SUBCONTRACTOR OF SERVICE PROVIDER BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION 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 provider is not responsible if information on the Service is not accurate, complete or up to date.
The Service is not meant to be used for long-term storage of any data. The Service provider 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, trade secret and other intellectual property rights, shall remain the sole property of Service Provider.
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 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.
8 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.
9 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.
10 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.