Actility is an innovator and industry leader in LPWA (Low Power Wide Area) large scale infrastructure. Actility’s ThingPark™ is a next generation standards-based IoT platform. The ThingPark Wireless LPWA network provides long-range coverage for low-power consumption sensors. ThingPark Mash-up offers big data storage for sensor data and exposes sensor capabilities through an open API, enabling developers to create vertical applications using the installed base of sensors. The ThingPark platform offers embedded software solutions and cloud solutions to connect devices with innovative applications. With its dedicated online marketplace for IoT sensors, applications and network solutions, ThingPark simplifies and accelerates the roll-out of innovative IoT services. Actility is a founding member of the LoRa Alliance: the largest, most powerful open standards-based enabler of the Internet of Things. To find out more, visit www.thingpark.com.
- Creation year : 2010
- Country origin : France
- Number employee : 130
- Seller commercial condition
ACTILITY TERMS AND CONDITIONS OF SALE
Whereas Actility Ecosystem Partner Program (EPP) is focused on delivering customer value through complementary technology solutions. By growing Partner ecosystem, Actility aims to create add-on value for customers leveraging ThingPark platform and partners’ technologies. Actility helps and simplifies the adoption of IoT use cases by extending the capabilities of its LoRaWAN(TM) network server.
Subject to the terms and conditions herein, Actility hereby appoints Partner as a participant in the Program to facilitate efforts to test interoperability of Partner’s solution with the Products and engage in complementary marketing efforts. Eligibility for continued participation in the Program is subject to meeting obligations as described in Ecosystem Program Guide that will be updated by Actility from time to time. For the avoidance of doubt, participation in the Program does not permit Partner to resell or otherwise engage Actility in any business activity and creates no obligation on either party to engage in further business activities.
- “Affiliate” means an entity that is controlled, controlling or under common control of a party to this agreement. For the purposes of this agreement, control shall be defined as owning, directly or indirectly, greater than fifty (50%) of all outstanding shares or stock in a company.
- “Confidential Information” means any information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), which (a) is marked or identified as “Confidential” or “Proprietary” at the time of disclosure (b) is specifically deemed to be confidential by the terms of this Agreement; or (c) which would be considered confidential by a reasonable person due to the nature of its content or circumstances surrounding its disclosure.
- “Ecosystem Program Guide” means Actility’s program for Ecosystem and its Affiliates as described in the guidelines and policies available at XXXX(“Program Guide”)
- “Effective Date” means the earliest date that: (1) Actility provides a written confirmation of Participant’s acceptance into the Ecosystem Program, or (2) the date that Actility grants Participant access to the Ecosystem Community.
- “Documentation" means the standard user and installation manuals that Actility makes available to Partner with the Products.
- “Product” means any software, hardware and any materials made available by Actility to Partner through the Program.
- “Developer Portal” means the means a dedicated online portal that Actility make available to Ecosystem to allow them to develop and make interoperability tests against ThingPark platform
- “Marks” means the respective Party’s trademarks, service marks and logos.
- “ThingPark Market” means the market place for devices, gateways and applications and services accessible via https://market.thingpark.com/
2. membership benefits and obligations
- General Enrollment.
Participant may only participate in the Ecosystem Partner Program under the terms and conditions of Ecosystem Program Guide and this Agreement. The Ecosystem Program Guide may define benefits and qualification criteria for certain tiers of partners and Participant will only be entitled to the benefits for which Participant has achieved qualification criteria and/or paid any applicable fees specified in the Ecosystem Program Guide.
- Program Plan Enrollment
In addition to general enrollment in the Ecosystem Program Guide, Participant may also apply to participate in one or more Program Plans for specific partner types. Participant must separately apply to each Program Plan to be considered for admission and each Program Plan may require Participant to provide additional information, undergo additional screening, and accept additional terms and conditions specific to each Program Plan (each a “Program Plan Agreement”).
Notwithstanding anything to the contrary, Actility may suspend Participant or its Affiliates, or any of their respective users’, right to access or use any portion or all of the Platform Services immediately upon notice if Actility determines that (A) such use (i) poses a security risk to the Platform Services or any third party, (ii) may adversely impact the Platform Services or the systems or data of any other partner or customer of Actility or its Affiliates, (iii) may subject Actility, its Affiliates or any third party to liability, (iv) in violation of the compliance obligations under Section 4, or (v) may be fraudulent; or (B) the Platform Services are rendered impossible or impractical as a result of any requirement of any law or judicial order; in each case, until such breach is cured or such condition no longer exists.
- New Releases
Partner agrees that, upon each release (major or minor) of a new version of the Products, it will conduct new interoperability tests with its then-current interoperable solutions. Partner agrees that it shall make all reasonable commercial efforts to re-certify the interoperability of its solutions with the new Actility version within thirty (30) days of Actility’ general commercial release.
- Ecosystem Partner Program require payment of application and membership fees as stated in the Ecosystem Program Guide. In addition, certain benefits and services provided under the Ecosystem Partner Program may require payment of additional fees as stated in the Ecosystem Program Guide. Participant agrees to pay such fees in accordance with the terms and conditions set forth here after. If any new fees are introduced in the middle of a Program Year, Participant will not be obligated to pay such fees for the balance of that Program Year but will be obligated to pay such fees for the subsequent Program Year unless Participant elects not to renew the Agreement under the terms of Section 8.
- All fees are due before February 1st of the Program year and all fees are non-refundable, non-cancellable. The fees due are exclusive of all taxes.
- Participant may upgrade is membership level at any time. Partner will be charged for the difference between its actual membership and the new one. Pricing will be calculated for the remaining period until end of the currant calendar year.
- Subscription to the Ecosystem Partner Program is available on ThingPark Market.
- Except as otherwise expressly provided in this Agreement, (a) each party shall be solely responsible for and shall individually bear all costs and expenses of performing their respective obligations hereunder and (b) neither party shall be liable for any costs or expenses incurred without such party’s prior written authorization.
4. Not For Resale Products
Actility may from time to time make Not-For-Resale Products (“NFRP”) available for Partner on a loaned, nonexclusive, non-transferable, limited basis to fulfill the obligations set forth in this agreement, subject to the following restrictions:(a) NFRP may not be resold, transferred or assigned to any third party (b) use the NFRP is restricted only to Partner for the purpose of marketing or demonstrating the Partner’s solutions that are interoperable with the Products, and providing technical support to customers in accordance with the terms of this Agreement in accordance with Section 5 below, and (c) the right to use the NFRP shall terminate upon any expiration or termination of the Agreement. NFRP, whether sealed or not, will in no event be opened, disassembled or modified, and any software included in any Product will not be reproduced, modified, or reverse engineered or decompiled without the prior written approval of Actility (or as may be expressly authorized under mandatory law notwithstanding the terms of this Agreement). Partner will exercise due care in handling the Products. Partner is solely responsible for knowing and complying with all applicable laws and regulations with respect to the Products and its use of the Products.
In addition to all restrictions set forth in Section 4.1, Partner may only use the software provided by Actility in accordance with the Documentation, and subject to all terms and condition of the Actility Software License Agreement. Except as expressly authorized under this Agreement, Partner shall not (nor shall Partner authorize or permit any third party to) (a) copy or use the software or its functions onto, on behalf of or in relation to any third-party products, devices or services; or (b) copy, use or disclose the software or its functions on behalf of or to any third parties. Partner agrees that in the event any software updates, patches or releases (“Releases”) are made available to the Products, the Releases are subject to the Actility Software License Agreement and may not be distributed to any third parties (including without limitation to end users of Products). Partner acknowledges that the licenses granted pursuant to this Agreement do not provide Partner with any title or ownership rights in or to the software, but only a right of limited use. Partner shall promptly notify Actility in writing of any unauthorized use of, or any claim or proceeding involving, software of which Partner is or becomes aware. Partner shall cooperate, and reasonably assist Actility with the termination of any such unauthorized use.
- Retention of Interests
Except as otherwise expressly granted herein or in a separate written agreement, Actility and its licensors shall own all right, title and interest in (a) the Products, software, marketing materials, and Documentation, b) any modifications, alterations, translations, copies or derivative works of the foregoing, regardless of by whom made; and (c) all intellectual property rights related to (a) and (b). Partner shall not transfer, distribute, rent, or grant any intellectual property rights in the Products, software or any derivative works thereof to any party and shall not remove or obscure any intellectual rights or proprietary notices in Actility’s Products, software or other materials. Notwithstanding anything contained in this Agreement to the contrary, software, marketing materials, and Documentation provided to Partner hereunder are subject to license and not sale. ALL RIGHTS IN THE PRODUCTS, MARKETING MATERIALS, SOFTWARE OR DOCUMENTATION NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO ACTILITY.
5. Trademarks/Trade Names
- Subject to the terms and conditions of this Agreement, each party (“Mark Owner”) hereby grants the other party (“Mark Licensee”), a non-exclusive, nontransferable, royalty-free, worldwide license to use its designated trademarks and logos (“Marks”), solely during the Term and solely for the purpose of fulfilling obligations set forth in this Agreement. Any use of the other party’s Mark(s) will be subject to the Mark Owner’s right to review and approve or reject in advance of each proposed use of Mark Owner’s Mark(s), and will conform with any trademark usage guidelines, policies, or requirements provided by the Mark Owner. Any rights not expressly licensed herein are reserved by the Mark Owner, and all use by the Mark Licensee of the Mark Owner’s Mark(s), (including all goodwill associated therewith), will be on behalf of and accrue to the benefit of the Mark Owner. The Mark Licensee will not take any action that would conflict with or be contrary to the Mark Owner’s rights and interest in Mark Owner’s Marks. Nothing contained herein will be deemed to grant either party any right, title or interest in or to the other’s Marks other than the limited license rights granted in this paragraph. Upon termination of this Agreement, Mark Licensee will immediately cease to use all Mark Owner Marks except as permitted pursuant to another written agreement between the parties.
- At no time during or after the Term will the Mark Licensee challenge or assist others to challenge the Mark Owner’s Marks or the registration thereof. Partner shall not adopt, use or attempt to register, whether as a corporate name, domain name, product name, trademark, service mark or other indication of origin, any of the Actility Marks or any mark that is confusingly similar to or will dilute the distinctive nature of the Actility Marks. If Partner registers or otherwise obtains rights to marks (as trademarks, service marks, URLs, company names or otherwise) in violation of this Agreement, Partner will, at its own expense, transfer and assign such rights to Actility, and execute all documents reasonably requested by Actility to facilitate such assignment or transfer.
- The PARTNER agrees that the Actility Trademarks are a valuable business asset of Actility, and that deterioration of the Trademarks in the public mind could cause damage to Actility. Therefore, the PARTNER agrees to take all reasonable and necessary action to prevent a negative public perception of the Trademarks resulting from the PARTNER’s business operations, dealings, and conduct.
- Subject to this agreement, Actility will promote and expose Partners’ brand and products (logo, description datasheet) on its ThingPark Platforms. Partner will be listed on ThingPark Market as a partner with its membership level.
- LoRaWAN™, the Lora Alliance™, and LoRa Alliance Certified™ are trademarks of Semtech Corporation, used with permission granted to the Lora Alliance™ and its members.
6. DISCLAIMER OF WARRANTIES
ACCESS TO PLATFORM SERVICES IS PROVIDED "AS IS". ACTILITY AND ITS AFFILIATES DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS TO PARTICIPANT, PARTICIPANT’S AFFILIATES, OR ANY OTHER PARTY WITH RESPECT TO THE PLATFORM SERVICES, ACTILITY TECHNOLOGY, OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, FITNESS FOR A SPECIFIC PURPOSE, OR SYSTEM INTEGRATION IS EXPRESSLY EXCLUDED AND DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ACTILITY AND ITS AFFILIATES DO NOT REPRESENT THAT THE PLATFORM SERVICES WILL SATISFY PARTICIPANT’S, ITS AFFILIATES’ OR ANY THIRD PARTY’S REQUIREMENTS, THAT THE PLATFORM SERVICES WILL OPERATE FREE FROM ERROR, DISRUPTION, OR CYBER-ATTACKS.
7. LIMITATIONS OF LIABILITY
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, BUSINESS OPPORTUNITY, REVENUE, DATA OR GOODWILL, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RELATED TO THIS AGREEMENT OR ANY PROGRAM PLAN AGREEMENT, WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 DO NOT APPLY IN THE CASE OF: (A) AN INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY OR ITS AFFILIATES’ INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (B) A BREACH OF SECTION 9 (“CONFIDENTIAL INFORMATION”), OR (C) ANY LIMITATION OR EXCLUSION, TO THE EXTENT NOT PERMITTED BY APPLICABLE LAW.
8. Term and Termination.
- Term of the Agreement.
The term of this Agreement will commence on the Effective Date and will continue until the end of the current calendar year (i.e., December 31 of that year) (the “Program Year”). At the end of the Program Year, this Agreement will automatically renew on an annual basis, unless Actility or Participant otherwise provides at least thirty (30) days prior written notice to the other Party of its intent to terminate this Agreement. If this Agreement renews, Actility may review Participant’s status and qualifications against the Program Plan and the Ecosystem Program Guide requirements then in effect and adjust or terminate Participant’s status in the Ecosystem Partner Program for the subsequent Program Year. Actility has the right to terminate this Agreement and Participant’s enrollment in the Ecosystem Partner Program upon written notice to Participant if Participant has not been qualified and accepted by the date that is one (1) year after the Effective Date.
- Termination for Cause.
Either Party may terminate this Agreement effective upon written notice to the other Party, if the other Party commits a material breach of any of its duties, obligations, or responsibilities under this Agreement or the applicable 8 Program Plan Agreement and fails to cure such breach within thirty (30) days after written notice specifying the breach.
- Immediate Termination by Actility.
Actility may, in its sole discretion, terminate this Agreement immediately upon written notice to Participant: (a) for any breach by Participant of its obligations related to Section (“Compliance”), (b) if Participant undergoes a Change of Control, or (c) if Participant files or has filed against it a petition in bankruptcy not dismissed in 90 days, has a receiver appointed to manage its assets or business, admits that it is insolvent or unable to pay debts as they mature, or ceases to carry on business in the ordinary course.
- Effects of Termination of Expiration.
Upon termination of this Agreement (and all Program Plan Agreements), all Ecosystem Program benefits and all rights and licenses granted hereunder to Participant will terminate immediately. Immediately upon termination of this Agreement Participant will (i) cease all use of the Actility Marks; (ii) cease all access to the Ecosystem Community and the Developer Portal Account; and (iii) return, delete, or destroy all copies of any Actility Confidential Information under Participant’s control. No termination of this Agreement will release a Party from any obligation which has accrued or become payable at or prior to the date of termination.
9. Confidentiality Obligation.
- Confidentiality Obligations.
From time to time, either Party or its Affiliates (the “Disclosing Party”) may disclose or make available to the other Party or its Affiliates (the “Receiving Party”), in writing, Confidential Information. Each Party agrees that during the term of this Agreement: (i) it will use Confidential Information belonging to the Disclosing Party solely for the purposes of this Agreement and any applicable Program Plan Agreement and for no other purpose; and (ii) it will take all reasonable precautions to ensure that it does not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, representatives, Affiliates, or agents on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. These confidentiality obligations will expire five (5) years after the termination or expiration of this Agreement. The Receiving Party will be responsible for any breach of this Section 9 by its employees, representatives, Affiliates, and agents. Upon request of a Disclosing Party, the Receiving Party will deliver to the Disclosing Party or destroy all copies of the Disclosing Party’s Confidential Information. The Receiving Party agrees to certify in writing to the Disclosing Party that it and each of its Affiliates has performed the foregoing.
- Required Disclosures.
The confidentiality obligations described in this Section 9 will not restrict any disclosure required by order of a court or any government agency, provided that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order.
- Independent Contractors
Actility and Partner are independent contractors, and nothing in this Agreement shall be construed to (a) give either party the power to direct and control the day-to-day activities of the other, (b) constitute the parties as partners, joint venturers, co-owners, employers or employees of the other or otherwise participants in a joint undertaking or (c) authorize either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Each party shall assure that its employees or other persons whose services it may require comply with all of the terms and conditions of this Agreement.
Any notice required or permitted to be given hereunder shall be in writing and shall be sent by certified mail return receipt requested, delivered by a recognized international express courier service (such as DHL or Federal Express) or delivered by hand to the address listed in the preamble of this Agreement.
- Force Majeure.
Nonperformance of either party shall be excused to the extent that performance is rendered commercially unreasonable by acts of God, war, fire, flood, riot, power failure, embargo, material shortages, strikes, governmental acts, man-made or natural disasters, earthquakes, failure or limitation of supply or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party, and provided that such party notifies in writing the other party of the existence of such situation.
- Nonexclusive agreement
This Agreement is nonexclusive in nature and does not restrict either Party (or its respective Affiliates) from competing with the other Party (or its respective Affiliates), subject to confidentiality obligations described in Section 9. e. Governing Law; Venue. This Agreement will be governed
- Seller shipping condition
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