We, Toitware ApS, Inge Lehmanns Gade 10, 6., 8000 Århus C, Denmark, CVR-no 38984594 (“Toit”, "We", "Us" or "Our") and Our licensors have made the platform, functionalities and software contained within and connected to the Toit service, which consists of:
A software platform running on connected devices (the "Firmware"), and
An online platform through which users can connect to and control the Firmware and access data (the "Online Platform")
(collectively the "Toit Platform")
These terms of service for Toit (the "Terms") set forth the terms and conditions for the subscription to the Toit Platform which the legal entity set out in the order form which is not Us ("You" or "Your") has purchased and governs how You may access and make use of the Toit Platform.
1.1. When ordering a subscription to the Toit Platform, You enter into a legally binding agreement with Us regarding Your subscription to access and use the Toit Platform governed by the Terms.
2.1. The Toit Platform, and all content made available by Us therein are protected by copyright, trademarks, and other intellectual property rights. You acknowledge and agree that the Toit Platform and content made available by Us therein, including all associated intellectual property rights, are the exclusive property of Us or Our licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Toit Platform, or content made available by Us therein. All trademarks, service marks, logos, trade names, and any other proprietary designations of Us or Our licensors used on or in connection with the Toit Platform and content made available by Us therein are trademarks or registered trademarks of Us or Our licensors.
2.2. Subject to Your compliance with the Terms, We grant You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Toit Platform.
2.3. You are fully responsible and liable for any use of the Toit Platform by third parties whom You have granted access to the Toit Platform.
2.4. Subject to the Terms, You may install applications developed or licensed by You on the Toit Platform.
2.5. You are responsible for ensuring that all persons who You let access the Toit Platform are aware of the Terms and other applicable terms and conditions, and that they comply with them.
2.6. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Toit Platform, or content herein, except as expressly permitted in the Terms. No licenses or rights are granted to You by implication or otherwise under any intellectual property rights owned or controlled by Us or Our licensors, except for the licenses and rights expressly granted in these Terms.
2.7. We have the right to disable Your access to the Toit Platform if, in Our reasonable opinion, You have failed to comply with any of the provisions of the Terms and not remedied such failure within a reasonable time period after being made aware of such failure by Us.
3.1. We may, in Our discretion, release updates to the Firmware on the Online Platform, in which case Your license under clause 2.2 includes a right to install such updates on Your devices running the Firmware.
3.2. You may decide whether to install updates to Firmware on Your devices running the Firmware.
3.3. You are responsible for ensuring that any applications installed by You on any of Your devices running the Firmware will continue working as intended if an update to Firmware is installed.
4.1. Your license under clause 2.2 includes a right to access and use the Online Platform, and We will grant You access to create online user accounts for the Online Platform.
4.2. We strive to maintain an up time for the Online Platform of at least 99% but make no warranties in this regard.
4.3. If We reasonably assess that Your consumption of the Online Platform is unnecessarily or unreasonably high (including but not limited to use of computing resources), We may set limits on Your allowed consumption of the Online Platform. We will strive to provide You with a prior written notice before limiting Your allowed consumption of the Online Platform.
5.1. You may upload content to the Toit Platform, e.g. by installing Your own applications on Your devices running the Toit Platform and/or using the Toit Platform to record and store Your data.
5.2. You retain ownership of any content uploaded by You to the Toit Platform.
5.3. Whenever You make use of a feature that allows You to upload content to the Toit Platform, You alone are responsible for the content which You upload. You warrant that any such contribution will not violate applicable law and any third-party rights.
5.4. We will not be responsible, or liable to any third party, for the content or accuracy of any content posted or uploaded by You or any other user of the Toit Platform.
5.5. We will use reasonable efforts to protect content uploaded to the Toit Platform by You from unauthorized access and/or destruction.
5.6. Your data can be extracted by You from the Online Platform at any time.
5.7. We will normally retain Your data for 7 days on the Online Platform. We may delete any data which is older than 7 days, and we may delete any data which has already been extracted by You regardless of total retention time.
6.1. We may at Our discretion choose to provide support for the Toit Platform. A description of Our current support offerings (if any) can be found at our webpage. We have the right to change all support offered for the Toit Platform, including by discontinuing any support at any time.
7.1. You acknowledge and agree that You may use the Toit Platform in connection with personal data subject to the EU General Data Protection Regulation (the “GDPR”) only if You first enter into the Toit Data Processing Agreement (the “Toit DPA”); in which case, the processing of personal data pursuant to these Terms shall be subject to the Toit DPA. You may request to enter into the Toit DPA by sending a request to: firstname.lastname@example.org.
8.1. You are responsible for ensuring that Your payment card information is always kept up to date. You may change Your credit card information in the Online Platform.
8.2. If a charge request to Your credit card for applicable fees is declined, We may disable Your access to the Toit Platform until We have received payment.
9.1. We may, in Our discretion, modify the Terms, at any time upon 60 days' prior written notice. Such notice may be provided by Us on the Online Platform. We will also post any modified version of the Terms on the Online Platform. Following such notice, Your continued use of the Toit Platform on or after the effective date of the changes to the Terms constitutes your acceptance of any updates.
9.2. If the modified terms are not acceptable to You, You may decline the changes by terminating Your subscription to the Toit Platform as set out in clause 11.
10.1. We may update and/or make changes to the Toit Platform from time to time. However, any of the content in the Toit Platform may be out of date at any given time, and We are under no obligation to update it.
11.1. We may terminate Your subscription for convenience upon 3 months' written notice.
11.2. You my terminate Your subscription for convenience upon written notice to the end of a month at any time.
11.3. Upon the effective date of the termination of Your subscription for any reason, all rights You have to access and use the Toit Platform will terminate immediately subject only to clause 11.4 below.
11.4. For a period of maximum 90 days after termination of the Terms, We may maintain a copy of any data stored by You in the Toit Platform and You may request a copy of such data. For the avoidance of doubt, we may delete Your data prior to the expiry of the 90-days' period.
12.1. THE TOIT PLATFORM IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EXCEPT FOR THOSE IMPLIED BY STATUTE THAT CANNOT BE EXCLUDED. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES.
13.2. THESE LIMITATIONS OF LIABILITY WILL SURVIVE THE TERMINATION OF THESE TERMS AND YOUR USE OF OUR SITE.
You agree to defend, indemnify and hold Us and Our affiliates, and Our affiliates' owners, directors, officers, employees, agents, suppliers, licensors and distributors (the “Indemnified Parties”) harmless from and against any and all claims, damages, losses, liabilities or expenses (including attorney fees) incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties: (a) alleging facts or circumstances that would constitute a breach of any provision of the Terms by You; or (b) arising from, related to, or connected with Your use of or access to the Toit Platform, Your violation of any term of the Terms, including without limitation sections 5.3 and 7.1, Your violation of an applicable law, or Your violation of any third-party right, including without limitation any copyright, property or privacy right. If You are obligated to provide indemnification pursuant to this provision, We may, in Our sole and absolute discretion, control the disposition of any Claim at Your sole cost and expense. Without limitation of the foregoing, You may not settle, compromise or in any other manner dispose of any Claim without Our express written consent. This defense and indemnification obligation will survive the termination of the Terms and Your use of the Toit Platform.
15.1. You must not misuse the Toit Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to the Toit Platform, the server on which the Online Platform is stored or any server, computer or database connected to the Toit Platform. You must not attack the Toit Platform via a denial-of-service attack or a distributed denial-of-service attack. By breaching this provision, You could commit a criminal offence. We will report any such breach to the relevant law enforcement authorities and We will cooperate with those authorities by disclosing Your identity to them. In the event of such a breach, Your right to use the Toit Platform will cease immediately.
16.1. The Toit Platform may contain links to third-party websites or resources. We are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Us of such websites or resources or the content, products, or services available from such websites or resources. You are solely responsibility for and assume all risk arising from Your use of any such websites or resources or the content, products or services on or available from such websites or resources.
17.1. Our failure to enforce any right or provision of the Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Us. Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies under the Terms or otherwise.
18.1. The Terms constitute the entire agreement between You and Us and supersede any prior agreements between You and Us on the subject matter of the Terms.
18.2. Under no circumstances will We be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond Our reasonable control.
18.3. You may not transfer Your rights or delegate Your obligations under the Terms.
18.4. We may transfer Our rights or delegate Our obligations under the Terms.
18.5. You grant Us the right to use your name, logo, and a description of your use case to refer to you on Our website, marketing or promotional materials, subject to your standard trademark usage guidelines that you provide to us from time to time.
18.6. You agree that any agreements made by and between You and Us in electronic form are as legally binding as if made in physical written form.
18.7. The Terms will not be construed against the drafter.
18.8. “Include(s)” or “including” means, respectively, “include(s) without limitation” or “including without limitation”, unless expressly stated otherwise.
18.9. Where any provision of the Terms is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction then such provision shall be deemed to be severed from the Terms and, if possible, replaced with a lawful provision which, as closely as possible, gives effect to the intention of the parties under the Terms and, where permissible, that shall not affect or impair the legality, validity or enforceability in that, or any other, jurisdiction of any other provision of the Terms.
18.10. Subject to any mandatory statute or law to the contrary, You will file any claim arising out of or related to Your use of or inability to use the Toit Platform within one (1) year after such claim arises or it will be forever barred.
18.11. You understand and acknowledge that developing applications should be fun and easy, and by using the Toit Platform, You agree to let Your imagination run wild.
19.1. Except where prohibited by applicable law or provided otherwise herein, the Terms are governed by and will be interpreted in accordance with Danish law. However, the conflict of laws rules must be disregarded to the extent that such rules are non-mandatory.
19.2. Any dispute arising out of the Terms, including any dispute concerning the existence or validity of the Terms, will be brought before the Danish courts.
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