Preamble elumatec AG is a company incorporated in Germany with registered office in Germany – Pinacher Straße 61, 75417 Mühlacker (“elumatec” or “Provider”). elumatec´s hardware (“Hardware”) is offered to customers ("User" or "Party") by elumatec itself or authorized vendors together with a device called Voilàp Connect (“Voilàp Connect”). Voilàp Connect collects data on the operation and condition of the Hardware (“Machine Data”). In order to use Voilàp Connect, the User must activate a SIM-card in the Hardware to have the Machine Data transferred to the cloud Data Storage (“Storage”). The User can access the User Platform “eluCloud Connect” (“Platform”) through the website https://connect.elucloud.com ("Website"). Via the Platform the User is provided with tools and functionalities enabling the User to analyze and evaluate the Machine Data in further detail. The Storage is hosted by elumatec´s service provider Motiqa S.r.l., a company incorporated in Italy with registered office in Italy – 20144 Milano, Via Fra’ Luca Pacioli, 3 (“Motiqa”). The Storage described in this Agreement is performed by Motiqa on elumatec´s behalf. Motiqa is the owner of the Storage. The Platform is hosted by elumatec´s service provider elusoft GmbH, a company incorporated in Germany with registered office in Germany – 72135 Dettenhausen, Breitwasenring 4 (“elusoft”). The Platform described in this Agreement is performed by elusoft on elumatec’s behalf. The Platform offered through the Website IoT solutions and cloud applications for analyzing machine data on behalf of elumatec (“Services”). The Services provided under this Agreement are offered to entrepreneurs (Section 14 German Civil Code) only. The User's general terms and conditions do not apply. This also applies if the Provider does not expressly object to the User's general terms and conditions in individual cases. 1. Agreement Access to the Platform and use of the Services are subject to the acceptance of the present terms and conditions (the "Agreement"). This Agreement constitute a legally binding agreement for Users who have entered into a purchasing and service agreement for Hardware including Voilàp Connect either directly with elumatec or with an authorized vendor (“Purchasing Agreement”), activated the SIM-card in the Hardware to use the Platform and registered in accordance with Clause 3. If the User does not accept the terms and conditions of this Agreement, he/she cannot use the License and access the Services. elumatec reserves the right, at its sole discretion, to make changes or modifications to this Agreement at any time and for any reason by publishing the new version of the Agreement and by communicating any prejudicial change to the User. The User shall have the right to terminate the Agreement within four (4) weeks from the time such changes or modifications are communicated. This Agreement takes effect when the User clicks the “Submit” button. 2. Payment The Storage and the Services performed under this Agreement are subject to the payment terms as set out in the Purchasing Agreement. In case the Purchasing Agreement terminates or expires or the test period for the Storage or the Platform under the Purchasing Agreement expires, the User may continue to use the Storage or the Platform on the basis of a separate agreement offered by elumatec. 3. Registration and Activation Before being able to access the Website and the Services, the User has to register on the Website. Registration takes place either by scanning the QR code displayed to the User on the machine, or if elumatec already has the customer's data on file via an invitation sent by elumatec. Any self-registration is manually reviewed prior to approval, in order to verify that the User has actually purchased the corresponding product. The Registration takes place when the User inserts all the data as requested via the Website to create the user account. To complete the procedure of Registration, the User shall provide true and correct data. In particular, the User’s e-mail address shall match to a real electronic address as it is indispensable to receive information regarding the use of the Services and/or any potential changes occurred to the same Services. The User undertakes to update the data as provided during the Registration’s procedure so that such data will be constantly updated, complete and truthful. The User will be able to change the password for the Website access as many times as needed by following the instructions as indicated on the Website. The User is aware that User ID (which can correspond to the email address) and password (reserved for a strictly personal use only) shall constitute the basis for the validation of the User’s accesses to the Services and shall be considered as the only appropriate means that legitimate the User to access the Services. Accordingly, the User agrees and accepts that all acts put in place through the use of the User ID and password shall become mandatory for the same User. The User declares to be liable towards elumatec, Motiqa or third parties for all those actions carried out through the use of the User ID and password. The User is obliged to keep User ID and password strictly confidential and preserve them with the best abilities. 4. Object elumatec grants the User who has registered on the Website access to the Platform and the use of the Platform and Services in order to connect devices and collect, store, and analyze Machine Data according to the Purchasing Agreement and this Agreement. The Provider shall provide, or shall ensure that the Platform will provide, to the User upon the Effective Date the Access Credentials necessary to enable the User to access and use the Platform and Services. 5. License Subject to payment of the agreed license fees and for the duration if this Agreement, elumatec grants to the User a worldwide, non-exclusive License to use the Platform and the Services. The License to use the Platform and Services does not include the rights to: • resell or otherwise use the Platform and Services except as stated in this Agreement; • sub-license the right to access and use the Services or grant the License to third parties; • use the Services to provide services to third party; • republish or redistribute any content or material from the Services; • make any alteration to the Platform. 6. Obligations and responsibilities of the User The Services and the License shall be used under the control, direction and exclusive responsibility of the User who is the guarantor of the users' compliance with the provisions of the Agreement. Therefore, the User shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no un-authorized person or application may gain access to the Services by means of the Access Credentials. By way of mere example, but without limitation, the User shall: • be liable for the correct use of the Access Credentials as received from elumatec in order to have access to the Services, and for any mistakes by his/her employees and users during their connection or use of the Services, in particular during the access to the Internet and the navigation; • behave correctly so as not to damage the Services or the Platform or compromise the availability or accessibility of the Services and the Platform, use its substantial deterioration; • use the Services so as not to cause damage to the Services or the Platform or compromise of the availability or accessibility of the services; • use the Services and the Platform in a not excessive way to avoid causing a substantial deterioration of the Services provided to other customers who use the Platform. Furthermore, the User undertakes to not: • violate any Intellectual Property Rights; • use the Services and the Platform in an illegal, fraudulent or harmful way, or, again, for illegal, fraudulent or harmful purposes or activities, and • conduct or request that any other person conduct any load testing or penetration testing on the Platform or Services without the prior written consent of elumatec or Motiqa. By accepting this Agreement, the User undertakes to indemnify and hold elumatec and Motiqa harmless from any prejudice arising from the violation of the terms and the conditions of this Agreement, the legal obligations or the rights of third party. 7. Obligations and warranties of the Provider The Provider may, from time to time, suspend the Services for the purposes of scheduled maintenance to the Platform and the Services, providing that such scheduled maintenance must be carried out in accordance with this clause. The Provider shall, where possible and feasible, give to the User at least 2 Business Days' prior notice of scheduled maintenance that will, or is likely to, affect the availability of the Services or have a material negative impact upon the Services. The Provider shall ensure that all scheduled maintenance is carried out outside Business Hours. The Provider shall ensure that, during each calendar month, the aggregate period during which the Services are unavailable because of scheduled maintenance does not exceed 48 hours. The Provider, in compliance with the Agreement, will comply with all the legal and regulatory requirements provided therein. The Provider declares to possess all the know-how, skills and experience to fulfill its obligations pursuant to this Agreement. The Provider warrants that it will not violate the Intellectual Property Rights of any third party. 8. Service Level Agreement The Service Level Agreement (“SLA”) for the Services is set forth in Schedule 1 and it is applicable only for the User acquired and activated the License purchased from elumatec. The SLA sets forth User’s sole remedies for availability with respect to the quality of the Services including any failure to meet any guarantee set forth in the SLA. 9. Faculty of the Provider The User authorizes the Provider to be able to use reasonable technical standards to limit the use of the Platform's resources by the User to guarantee the Services to its customers in general. The User hereby grants to the Provider a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the User Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement. The User also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in this Agreement. The User warrants to the Provider that the User Data when used by the Provider in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law. 10. No assignment of Intellectual Property Rights Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the User, or from the User to the Provider. 11. Confidentiality obligations The User is obliged to keep all information made accessible to them by the Provider—whether designated as confidential or recognizable as trade or business secrets due to other circumstances—confidential for an unlimited period of time, and not to record, disclose, or use such information. 12. Data protection In carrying out the activities under this Agreement, the Provider will operate as data processor of elumatec according to Art. 28 of the General Data Protection Regulation (EU) 2016/679 ("GDPR") on the basis of a data processing agreement. The Provider and elumatec respect and apply the principles regulated in the GDPR and other applicable data protection law. The updated data processing agreement can be requested from elumatec AG. 13. Limitations of the Provider’s liability elumatec is only liable for intent and gross negligence. In the event of a slight negligent breach of major contractual obligations (obligation whose fulfillment makes the proper execution of the contract possible in the first place, and on whose compliance the contractual partner regularly relies and may regularly rely), elumatec´s liability shall, however, be limited to the compensation of typical, foreseeable damages. In the event of slight negligent breach of non-essential contractual obligations or indirect or consequential damages, elumatec shall not be liable. elumatec shall not be liable – within the limits provided by the applicable laws – for any and all risks associated with the use of the Services and of the Platform which are under the responsibility of the User. In particular, elumatec shall not be liable to the User or third parties, which are directly or indirectly linked to the User, in the following cases: (i) virus spread by third parties; (ii) data theft caused by third parties; (iii) mishandling or actions on connectivity’s devices, which fall within the responsibility of the User, that have been carried out by the latter or by unauthorized third parties; (iv) incorrect use of the Services or the Platform by the User; (v) data quality and electronic transmission provided through the use of telecommunication networks, and in general for the quality and reliability of the Internet access between the User’s workstations and the Services’ access point; (vi) accicental disruption of the User’s data, caused by the same User or by third parties which have access to the Services, for reasons not attributable to elumatec. In such cases, elumatec reserves the right to charge the User of the time spent to ascertain the reasons of such accidents arising from acts not perpetrated by elumatec or that may be the outcome of the Services as provided by elumatec. (vii) loss of data if the damage would not have occurred if it had been properly backed up with state of the art measures by the User. elumatec’s liability for the loss of data is limited to the typical effort required to restore the data that would have occurred if the data had been properly backed up. elumatec shall use all reasonable endeavors to maintain the availability of the Services to the User at the gateway between the public internet and the network of the hosting services provider for the Services but does not guarantee 100% availability. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement: a) a Force Majeure Event; b) a fault or failure of the internet or any public telecommunications network; c) a fault or failure of the User's computer systems or networks; d) any breach by the User of this Agreement; or e) scheduled maintenance carried out in accordance with this Agreement. The limitations of liability pursuant to the preceding paragraph shall not apply a) in the case of damages arising from injury to life, body, or health resulting from a negligent breach of duty by elumatec or a willful or negligent breach of duty by a legal representative or vicarious agent of elumatec, b) insofar as elumatec has fraudulently concealed a defect, c) insofar as elumatec has assumed a guarantee for the condition of a product, d) for claims of the customer under the Product Liability Act. 14. Acknowledgment by the User of limitations of liability of the Provider The User acknowledges that the Services are: • never completely free of defects, errors, bugs or free of security vulnerabilities; • specific to be compatible only with that software and with those systems indicated as compatible with the Services. However, without prejudice to what is expressly provided in this Agreement, elumatec does not guarantee or declare that the Services or the use of the Services by the User will be completely in line with the User's purposes or specific scope. 15. Force Majeure Event elumatec cannot in any case be held responsible towards the User or third parties for the delay or failure to fulfill its obligations due to unforeseeable circumstances or Force Majeure such as, but not limited to, pandemic, actions of public authorities, floods, fires, thefts, explosions, accidents, strikes, and even non-corporate lockouts, acts of war, embargo, impossibility of transport, suspensions or telecommunication problems, lightning, failures of the plants not attributable to the Provider, interruptions or overload of the energy flows, failures, or interruption of the telephone lines attributable to the activity of the operator (or concessionaire) of the same lines, as well as interruptions or suspensions not attributable or in any case independent of the will of elumatec or deriving from third parties. 16. Term and termination Unless terminated sooner in accordance with the provisions of the present section, the Term of this Agreement will commence on the Effective Date and will remain in force for the term agreed for the provision of Voilàp Connect under the Purchasing Agreement. After the expiration of the term, the Parties may conclude an extension of this Agreement. Either Party may terminate this Agreement for cause if the other Party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other Party. The Provider may also terminate this Agreement immediately upon notice to the User: • for cause, in order to comply with the law or requests of governmental entities; • in case User violates any applicable law; • in case User breaches any provision of clause 5 of the Agreement; • in case User breaches the License and clause 4 of the Agreement. 17. Effects of termination Upon the termination of this Agreement, all provisions contained therein will cease to have effect. Following the termination of this Agreement, the User is required not to use the Access Credentials of authentication for access to the Platform and Services. The Provider reserves the right to invalidate these Access Credentials from the day of termination. Except as otherwise provided in this Agreement, termination of this Agreement does not affect the rights accrued by both Parties. 18. Machine Data; Data Act The Machine Data collected via Voilàp Connect are product data as per Art. 2 (15) of Regulation (EU) 2023/2854 of 13 December 2023 (“Data Act”). The Machine Data do not constitute personal data within the meaning of the GDPR. By using Voilàp Connect through activating the SIM-card on the Hardware and actively checking the box in the registration process on the Website on the use of Machine Data by elumatec, the User agrees that elumatec may use the Machine Data that are non-personal data as follows: a) to perform the Services under this Agreement or any agreement with the User or activities related to such agreement (especially providing reports or analysis, providing Services, evaluating Hardware functionality); b) to provide the User with relevant information and offers related to the Hardware or other elumatec products and services; c) to improve and develop the functioning of the Hardware, Service and any product or related service offered by elumatec; d) to develop new products or services, including artificial intelligence (AI) solutions; The Machine Data used for the purposes of lit. c) – d) shall be used in anonymized form. The User accepts that elumatec´s right to use the Machine Data for elumatec’s purposes set out in clause 18 lit. c) – d) survives termination or expiry of this Agreement. elumatec may share the Machine Data with third parties (especially with Motiqa) exclusively for the purposes set out in clause 18 lit. a). elumatec will not use or disclose the Machine Data in any way that harms the legitimate business interests of the User. This particularly includes any use or disclosure aimed at gaining insights into the User’s economic situation, assets, and production methods, or insights into the User’s use of the Hardware that could be used to impair the User’s competitive position in the markets in which the User operates. To the extent that the User is entitled under the Data Act to request from elumatec the provision or disclosure of Machine Data, such provision or disclosure shall always occur while preserving confidentiality and taking into account the protection of elumatec’s trade secrets as well as those of elumatec’s contractual partners. elumatec is entitled to take all technical and organizational measures that elumatec considers necessary to protect confidentiality and trade secrets in connection with the user’s claims under the Data Act. This includes the right for elumatec to require the User to enter into confidentiality agreements. Reference is made to the information pursuant to Art. 3 Data Act, which is available in the Voilàp Connect Portal. 19. Transfer of the Agreement The Parties cannot in any way and in any form transfer to third parties, even partially, the Agreement, unless specifically agreed in writing. 20. Applicable law and Jurisdiction This Agreement is regulated by German law, excluding German international private law and the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980. Any dispute arising in connection with the interpretation, execution or termination of this Agreement shall be the exclusive jurisdiction of the courts at the seat of the Provider. 21. Definitions In this Agreement, except to the extent expressly provided otherwise, the terms indicated will have the following meanings: "Access Credentials" means the usernames (or user ID), passwords and other credentials enabling access to the services, including both access credentials for the User Interface; "Account": all personal data as disclosed by the User during his/her registration and partially changeable afterwards, including User ID and password of the same User; "Business Day" means any weekday other than a bank or public holiday in Italy; "Business Hours" means the hours of 09:00 to 18:00 (GMT+1) on a Business Day; "User Data" means all data, works and material, uploaded or stored on the platform by the User or his system, or, provided by the same to the provider, for example, for uploading, transmitting or storing data on the platform, or generated by the platform following the use of the Services by the User; "Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable, the United Kingdom's Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679 (“GDPR”); "Services" means all the services which will be made available by the Provider to the User in accordance with this Agreement; "Services Defect" means a defect, error or bug in the platform having a material adverse effect on the appearance, operation, functionality or performance of the Services, but excluding any defect, error or bug caused by or arising as a result of: • any act or omission of the User or any person authorised by the User to use the platform or the Services; • any use of the platform or Services contrary to the Agreement, whether by the User or by any person authorised by the User; • a failure of the User to perform or observe any of its obligations in this Agreement, and/or • an incompatibility between the Platform or Services and any other system, network, application, program, hardware or software not compatible; "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs); "Personal Data" has the meaning given to it in the Data Protection Laws applicable in the European Union from time to time; "Platform" means the platform managed and used by the Provider to provide the Services, including the application and database software for the Services, the system and server software used to provide the Services, and the computer hardware on which that application, database, system and server software is installed; "Registration" means a person's name, or the details of an event is the recording of it in an official list. This is the procedure provided for the creation of the Account and the collection of User Data (with explicit acceptance of this Agreement) which allows him to use the Services accessible through the Platform; "Support Services" means support in relation to the use of, and the identification and resolution of errors in the Services; "License" means the instrument through the Provider regulates the use of the Platform and Services. “Machine Data” having the meaning set out in the Preamble. “Voilàp Connect” having the meaning set out in the Preamble.
This part of the document defines the minimum Service level and establishes the timelines of intervention in case of a malfunction of the Services provided by Motiqa and elusoft (“Service-Provider”) on behalf of elumatec. Internet connectivity The Service-Provider, for the equipment under its responsibility and for causes that are directly attributable to the same Service-Provider, warrants the availability of the connectivity to the server from and to the Internet no less than 99% of the time. The minimum level of band guaranteed to the Service-Provider for the access to the Internet over the LAN is 5mbps. Specifications for Services’ quality control Service levels are calculated through the timeframe indicated herein below for each type of Service. Service levels will only be applied for areas of the Provider’s direct responsibility. Full operation of all functions is warranted from Monday to Friday, from 09:00 to 16:00 (UTC+1); visibility and functionalities shall also be warranted, as far as possible, during the weekend and on bank holidays. Mid-week holidays (as indicated on Provider’s working calendar) shall be considered as non-working days (Sunday). Definition of SLA parameters and contents Criticality/Priority This parameter defines contents and timelines of intervention to the reported event. The table herein below defines the criticality/ priority associated to the event. Each report will determine a level of criticality that establishes its procedure and solution timelines.
Services measuring parameters Time to take charge/response This is the time that elapses between receipt of the call and the time the Service-Provider takes charge of it. The Service-Provider shall take charge of the issue’s notification within the agreed timeline, by notifying the first evidence of the issue and the Work Plan that it intends to undertake for accurate diagnosis and resolution. The Work Plan is the procedure (in terms of actions and planning) that the Service-Provider intends to undertake both to obtain correct problem determination and solve it. The timeline to take charge of any issue shall not be confused with the resolution timeline, as in this respect the activity of escalation and problem determination - which is needed in case of an exhaustive diagnosis or resolution that are not immediately available- is also classified as an action. Availability The timeframe within which the single items composing the Services are guaranteed. This availability of Services is not included within the timing needed for technical work on equipment and lines constituting the network as well as the timing needed for the inclusion of new settings and/or issues’ updates. Up-time The timeframe of availability (expressed as a percentage of time) of the systems as estimated during the timeframe of the Services’ provision. Downtimes as agreed in advance between the parties are not included in this estimation. Exceptions Service-Provider is not responsible for disservices caused by: • scheduled web maintenance work; • natural disasters, uprisings, exceptional events and/or arising from external communication networks; • malfunctions; • incorrect configurations of equipment by the User (other than those defined and certified by the Provider); • problems connected to the equipment managed by the User. Service level indicators With the exception of system’s availability, the Service levels are measured through the time to take charge and/or to provide the same as expressed in hours; with respect to the monitoring of the Services, the measurement of the time to take charge is not substantial as the Services are provided on an ongoing basis and not by following a notification or request. The Up-time parameter described above is used for System availability. Description of SLA The Services are provided according to the following timeframes: • The Service-Provider will take react to issues and notifications within 16 business hours from Monday to Friday from 09:00 to 16:00 (UTC+1) for Sv1, Sv2, Sv3, Sv4 The observance of the SLA for taking charge of notifications cannot disregard the procedures with which they are processed. The Service-Provider is not intended to guarantee the taking charge of notifications performed on different channels or with procedures other than those herein indicated. • Management of back-up systems and applicative It is the Service-Provider’s responsibility to activate all the Services and adjustments needed for the correct data saving and storage of the same during the agreed timeframe and procedures. • Malfunction’s management Malfunctions can be detected through system and web monitoring (and therefore in accordance with the above procedures) or by notifying the Service-Provider through the support email support@elusoft.com or help@motiqa.com.
