Terms and Conditions
1 AREA OF APPLICATION
This general terms and conditions shall apply for all our services and products provided by MyOmega Systems GmbH (hereinafter MyOmega). The customer of MyOmega accepts these terms and conditions by doing one of the following activities:
- Download content from our web services like applications and information.
- Signing of an agreement with MyOmega.
- Order of MyOmega Systems GmbH services or products versus MyOmega quotation.
- Order of products through web services.
This terms and conditions are the entire agreement. In case that the written agreement is in conflict with the terms and conditions, the written agreement shall overrule the terms and conditions.
2 INTELLECTUAL PROPERTY (IP)
Intellectual Property shall mean all information in form of drawings, architecture drawings, process drawings, ISO 27001 processes, system manuals, project management processes, architecture descriptions (AD), design specifications, industrial design drawings and diagrams, industrial symbols, icons and user interfaces, all kind of software including human machine interfaces, all software message sequence charts (MSC), all source code in whatever language, all object code, all user scenarios (US), all use cases (UC) and all whatsoever architecture specifications. Hardware design including schematics, netlists, floor plans, printed circuit boards (PCB), PCB diagrams and layouts, in particular the circuit diagrams and formats of the MYNXG Gateway, MYNXG Extension Cards (EC), Things / the sensor solutions in whatever form. Algorithms for filter tuning, 2D and 3D image processing, 2D and 3D image processing with lasers, 2D image processing and 3D evaluations with cameras, infrared image processing, prediction of cavity filters including the inductive and capacitive coupling. Algorithms for assignment of radio frequencies, time slots and bandwidths in capillary, wireless and cellular networks. Methods and algorithms to monitor, communicate with and manage things within capillary, wireless and cellular networks. Security mechanisms and methods to protect embedded devices and gateways versus threats. Blockchain, Smart Contract and Process Editors to manage Things within the IoT. Methods for the management of gateways, BYOD devices, sensors, actuators, mobiles and tablets including the business processes and methods within the internet of things (IoT). Presentations in whatever text, image, video and other media that show the technical content or business models and processes and the related marketing and communication materials.
3 INTELLECTUAL PROPERTY RIGHTS (IPR)
All Intellectual Property Rights (including, without limitation, all database rights, rights in designs, rights in know-how, patents and rights in inventions, in all cases whether registered or unregistered and including all rights to apply for registration and all other intellectual or industrial property rights in any jurisdiction, in any information, content, materials, data or processes contained) belong to the MyOmega Systems GmbH or its licensed source. All rights of the MyOmega Systems GmbH in such Intellectual Property Rights are hereby reserved.
Information shall mean any information including, but not limited to all designs, design libraries, design rules and parametric information, floor plans, netlists, diagrams, drawings, specifications, ideas, concepts, know-how, business models, workflow, security models, samples, models, methods, processes, SW object code, SW source code, recipes, procedures, instructions, data, data files, reports, database tapes, test tapes and reports, mask reticles and supporting documentation, technology and/or all other technical or business information of any kind whatsoever, whether in tangible or intangible form, created or provided under this agreement.
5 MYNXG SYSTEM ARCHITECTURE AND USAGE OF THIRD PARTY PRODUCTS
MyOmega owns the MYNXG business platform including all its software components. MyOmega utilizes for MYNXG technologies and products of suppliers. Amongst others Intel products (SW and HW) including modem (Intel M7160 or derivatives) and APP CPU (Intel Atom E3845 or derivate). MyOmega will utilize CPUs and components from the market. MyOmega is licensing those products under the terms and conditions of Intel and further technology providers.
MyOmega utilizes for MYNXG the Baseport SW/Operating System SW, the MYNXG platform is using Android (Google Play Store) technology (SW). FRAME and APP CPU Baseport SW/Operating System SW is based on Linux. The MYNXG platform is using standard mobiles SW with Android 4.4.2 or newer (DEVICE, SW, HW).
The MYNXG cloud is utilizing Transport Layer Security (TLS) SW, Hypertext Preprocessor (PHP) and Structured Query Language (SQL), plus Open Source SW components. The Microsoft Azure Cloud or any other cloud might be used to host the MYNXG Platform.
6 FORCE MAJEURE
- In case of any change by Manufacturer and Technology Provider as described in § 5 MYNXG SYSTEM ARCHITECTURE AND USAGE OF THIRD PARTY PRODUCTS it has to be seen as Force Majeure Impact on MyOmega. MyOmega does not take any responsibility for changes, availability or licensing conditions of above products and technologies provided by third parties.
- If either party's due performance of the assignment is affected by any accident, event, omission or other matter beyond the party's reasonable control, he shall give prompt notice thereof to the other party and shall be under no liability for any injury, loss, damage or expense (direct or consequential) suffered by the other party due to the affected performance. Such party shall use reasonable efforts to avoid or overcome the causes affecting performance and shall fulfil outstanding performance when practical so to do.
- In case of any changes towards frequency spectrums or in case that frequency spectrums are occupied through other services this shall be seen as force majeure towards MyOmega, without any impact on liability or warranty towards MyOmega.
7 CUSTOM MADE SW
MyOmega owns the MYNXG® brand name (registered trademark), system, design and all specifications with all code elements of the MYNXG platform, the industrial designs, HW and mechanics. All modifications and extensions to the products are designed by MyOmega. All intellectual property rights and all intellectual rights on whatsoever element of the MYNXG platform.
In case of customer specific designed Use Cases and the customer specific designed components the customer owns the customer specific software modules and components. In such a case of customer owned software, the customer grants MyOmega a transferrable, unlimited, worldwide, make, buy, modify, lifelong and free distribution license.
8 INTELLECTUAL RIGHT INFRINGEMENT
MyOmega shall not be liable for any infringement caused by the customer that orders specific software or hardware and MyOmega provides those software or hardware in line with the specifications provided by the customer. MyOmega shall not be liable for any infringements of those patents where not at least one patent or patent of the family of claims has been published as patent by the European patent authorities or the US patent authorities. MyOmega is entitled to modify the product in a way, that it will not infringe a patent claim against MyOmega anymore. All claims versus MyOmega shall be regulated in any case by the § 18 LIMITATION OF LIABILITY.
The MYNXG SW is licensed not sold. This is the case for all MYNXG SW elements. This terms and conditions gives the user the limited rights to use the software. MyOmega reserves all other rights including all intellectual property rights (IPR) and rights on intellectual property (IP). Users may use the MYNXG Software only as expressly permitted in this agreement. If user provides any feedback or information about the software and MyOmega chooses to use it, MyOmega may use it without restrictions and compensations for the user.
MyOmega products may deviate from the architecture descriptions and specifications. MyOmega products may deviate from photos, or colors may deviate from specifications, or forms may deviate from industrial designs due to technical improvements or variation in production.
Schematics, chip-sets or electronical schematics may be changed, and functionalities may deviate. In all such cases the products and software is to be seen as functional and in line with the specifications as long as the key performance parameter and the agreed technical functions are meeting the specifications.
MyOmega reserves the right to make at any time product and/or production changes. In such event MyOmega ensures that changes will not negatively affect form, fit or function of the products and their key performance characteristics.
11 ERROR CORRECTION AND ACCEPTANCE
Customer shall classify severity reports (SA) with severity levels high, medium or low severity.
- High severity error: The presence of high severity error implies that deliverables cannot substantially used or have a major negative impact on the total system operation, system functionality, or system reliability regarding the customer’s systems.
- Medium severity error. The presence of medium severity error seriously affects functionality of the deliverables, but can be circumvented so that deliverables can be used, or implies that a program or a function in the deliverables cannot be used although other programs and functions remains unaffected, or implies that the deliverables as a hold function but a certain function are somewhat disabled, give incorrect results or due not conform to the documentation or any agreed standards.
- Low severity error: has not significant effect on the functionality of the licensed systems, programs or devices or the usability of the documentation.
- Correction of errors: for errors classified as high severity licensor shall first create a temporary remedy in order to solve the critical situation and thereafter a final remedy. Licensor shall use its constant and best effort to complete the final and the temporary remedy as fast as possible.
- Response and error correction times: Correction of HW and repair are regulated between the customer and MyOmega according to individual regulations.
- Correction of high severity errors within: confirm of receipt 24 hours, temporary remedy 96 hours, final remedy without HW 10 business days.
- Correction of medium severity errors within: confirm of receipt 48 hours, temporary remedy 10 business days, final remedy without HW 20 business days.
- Correction of low severity errors within: confirm of receipt 10 business days, final remedy within next update.
- Correction of HW and repair are regulated between the customer and MyOmega according to individual regulations.
12 OPEN SOURCE CLAUSE
MyOmega utilizes "Open Source Software”. "Open Source Software” means any software that is licensed under Open Source License Terms. As used herein, "Open Source Licensing Terms” means terms in any license for software which require, as a condition of use, modification and/or distribution of such software or other software incorporated into, derived from or distributed with such software (a "Work”), any of the following: (a) the making available of source code or design information regarding the Work; (b) the granting of permission for creating derivative works regarding the Work; or (c) the granting of a royalty-free license to any party under intellectual property rights regarding the Work. By means of example and without limitation, Open Source Licensing Terms include the following licenses or distribution models: the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), the Artistic License (e.g. PERL), and the Open Software License.
13 DELIVERY TERMS
In the absence of any agreement to the contrary, deliveries to be made by MyOmega shall be obligations to deliver goods; they shall be deemed fulfilled at the time that the goods are handed to the shipper at the place of business /or the production place at MyOmega.
Commencement of the delivery and completion periods agreed upon and/or compliance with the deadlines and schedule agreed upon shall be subject to the necessary technical details having been clarified in advance. This shall apply, in particular, to the customer's duties to cooperate. In the event of non-compliance with the schedule agreed upon, the customer shall grant MyOmega a reasonable grace period for providing the goods and/or services thus owed. Grace periods shall be set out in writing.
If the customer defaults in acceptance, MyOmega may demand reimbursement for customary storage
costs as well as reimbursement for any other additional expenses in connection with the storage and maintenance of the item(s) to be delivered. In addition, the risk for any accidental loss or accidental deterioration of the goods shall pass to the customer at the time that he fails to accept delivery. If the default in acceptance also constitutes a debtor's default at the same time, MyOmega shall be entitled to compensation for any damage caused to it as a result. Further statutory claims of MyOmega shall remain intact.
14 RETENTIONS OF TITLE
- Goods shall remain our property until they have been paid for. In case of transactions with companies, we shall retain title to all delivered goods until the customer has paid all current and future receivables arising from the business relationship. This retention of title shall also comprise replacement or exchange parts such as motors and control units etc, even if they have been used in assembly, because then they become minor components in the meaning of Section 93 of the German Civil Code (BGB). In case of cheque-and-bill processes, our retention of title shall also exist beyond the cheque payment until we are released from the bill-of-exchange liability. In the instance of a current account relationship (business relationship), we shall retain title until the receipt of all payments arising from the existing current account relationship; the retention shall relate to the recognized balance.
- In the instance where the customer infringes the contract, in particular, in the instance of payment default, we shall be entitled to recover the goods after the expiry of a set period without result. Mere recovery of the goods shall be construed withdrawal from the agreement only if an appropriate period set by us has expired without result, and withdrawal has been expressly declared. Cost that we incur as a result of recovery (particularly transportation costs) shall be borne by the customer. We shall also be entitled to forbid the customer to resell or process, combine or mix delivered goods to which we retain title, and to revoke the direct debit authorization. The customer shall be entitled to demand the delivery of goods recovered without express withdrawal declaration only after the full payment of the purchase price and all costs.
- The customer shall be obligated to treat the goods with care (including inspection and maintenance work required).
- This Paragraph shall also apply for customer tailored software.
15 EXPORT LAWS
MyOmega has the sole right to not deliver any products/hardware and software in case that the customer and/or customer business may violate the export rules of the Federal Republic of Germany or the European Community.
Export related information has to be provided by the customer. Any failure of the customer to declare the place of business and the usage of goods in accordance with the export laws of the Federal Republic of Germany will entitle MyOmega to full compensation and title for all consequential cost.
16 USER OBLIGATIONS
- The user must install the MYXNG Gateways and all Things (Sensors) according to the outlined installation manuals.
- The user shall not move or change the position of the MYNXG Gateway after the installation, the user shall not open the Gateway. In case that the user does take this action, he may deactivate the MYNXG Gateway and activate the security functions inside the Gateway.
- The MYNXG Gateway/ the TracoSense shall be installed in a way that no external person can remove or alter the SIM card inside the MYNXG Gateway/TracoSense.
- The user is in charge to register the MYNXG Gateway correctly and keep his user passwords confidential, the user is in charge to register the Mobile and Tablets that he wants to utilize for the MYNXG services. The MYNXG technology requires to register the used devices, the user is responsible to manage the access and the usage of this devices. This are the mandatory steps to enable secure MYNXG services.
- The sections 1, 2, 3 and 4 define the security requirements that must be fulfilled by the user of MYNXG.
- The user is allowing MyOmega to download Software to MYNXG Gateways and Things, the user will allow the download of SW to Tablets and Mobiles. Failure to update SW may cause malfunctions of the system and risk failure of security functions.
- The user is enabling the geo data option on his tablets and devices to enable MyOmega to record the correct position of MYNXG Gateway and Things. Failure at this may cause lost sensors and or service degradations. In case that geo data cannot be recorded the user will provide the correct address where the MYNXG controller is operated.
- The user is responsible for escalating complaints about the application, including complaints on service levels, performance, outages, and functions of the Application to the defined help desks and service hotlines.
17 PRIVACY OF DATA
- The user provides access to name, password or personally identifiable information or mandatory personal data through the MYNXG application.
- The user through the MYNXG application or content provides business data and or process data, or the sensors provide such data.
- The user data and all information provided is owned by the user that provided the info. Any usage for any service has to be authorized by the user with the exemption of access through authorized MyOmega personnel. MyOmega will always inform the end user before enabling any use of data for any service.
- MyOmega will provide privacy notice to the user in accordance with applicable law, (b) obtain any necessary consent from the user for the collection, use, transfer, and storage of the information, (c) use and authorize others to access and use the information only for the purposes permitted by the end user, and (d) ensure the information is collected, used, transferred, and stored in accordance with applicable privacy notice and applicable law.
- MyOmega may use employees, contractors and facilities in any place where an MyOmega entity or any subcontractor are located. Content and other data may be transferred to MyOmega facilities for data redundancy or other purpose or accessed remotely for such purpose. MyOmega will apply on all this procedure the data security rules as outlined under ISO 27001.
- A party must (a) not disclose to any person, in any form or way, any information or documentation (including this agreement) it receives under this agreement; and (b) keep it secure and protected to a reasonable level of care against loss, damage or unauthorised access. A party may only use or reproduce the information or documentation received to fulfil and manage its rights and obligations under this agreement.
18 LIMITATION OF LIABILITY
- My Omegas liability for all claims under this agreement (including any indemnity) are limited to any actual direct damages that the other incurs up to 100% of the amounts the user pays for the services he receives over the last 12 months of service.
- MyOmega is not liable for any of the following, under any claim or theory of liability, even if the other party knew it was possible or reasonably foreseeable: (a) lost profit, revenue, business, market share, use, production, contracts, goodwill, savings, lost or unauthorized access to content or data (including personal data); or (b) any special, indirect, incidental, punitive or consequential damage in any way.
- The MyOmega products are tested and certified according to the valid product regulations. Any product- or service-related liability is limited to €1 million per case.
- Damages in which one party is liable for breach of confidentiality are limited to €1 million per case.
- For damages from bodily injury or death, the liability is measured according to the relevant laws of the Federal Republic of Germany.
Normal wear and tear typical of consuming shall not constitute cause for a complaint. The customer shall comply with the recommendations of MyOmega and/or the manufacturer regarding operation, storage and/or maintenance. Only authorised changes shall be made; technically appropriate replacement parts and consumables shall be used and shall correspond to the relevant specifications. If the customer violates any of these obligations and thus causes, directly or indirectly, defects, MyOmega shall not accept any liability.
MyOmega warrants that any MYNXG application will work as specified in the Application Guide if the MYNXG controller and the Sensor Solutions are installed and operated according to the Product Specifications and Installation Manuals.
Except for section 19 WARRANTY Point 2 MyOmega does not warrant any performance or result of the MYNXG solution.
MyOmega does explicitly state that the predictive tools which are offered as part of the applications predict the future through algorithms and or predict a possible result. It is up to the user to interpret and judge the suggested results. It is up to the user to follow the suggested actions. The final call for action is owned in any case by the user!
20 PRICING AND PAYMENT TERMS
All prices quoted are valid for the earlier of, thirty (30) days or until acceptance by the Customer, after which time they may be altered by MyOmega without notice to the Customer. All prices are quoted exclusive of VAT, customs duties, and ex-place of business (ex-works), other taxes and duties. The Goods are sold, and Services are rendered subject to the prices and conditions ruling at date of issue of the invoice.
Unless the Goods are to be commissioned or installed by MyOmega, prices quoted are ex-works and exclusive of packaging and excluding transportation.
21 DATA CONFIDENTIALITY
The customer is instructed by MyOmega that the data collected in the course of entering into the contract
may be collected, processed and used by MyOmega in accordance with the provisions of the European General Data Protection Regulation (GDPR) for the purpose of fulfilling its obligations under the contracts entered into with the customer. Such data may also be transmitted to affiliated companies of MyOmega or vicarious agents for the purposes of fulfilling the contract and for credit investigations.
The contracting parties undertake to keep confidential any and all commercial and technical information of the respective other party that they obtain or learn in the course of executing the contract provided that the respective other party has not disclosed such information publicly.
22 PLACE OF BUSINESS
The place of business is the registered office of the company in D-90411 Nuremberg/Germany Neumeyerstraße 28-34.
23 BUSINESS DAY AND HOURS
The business day means the regular working days Monday till Friday at the place of business. The business hours mean the regular business hours from 8:00 until 17:00 at the place of business.
24 APPLIED LAW
The Agreement, as well as any legal matters connected therewith, shall be governed by the law of the Federal Republic of Germany. Any legal case shall take place at the court of jurisdiction of Nuremberg.
25 SEVERABILITY CLAUSE
In the event of any clause contained in these Terms and Conditions or in the Agreement being declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way impair or affect any other clause all of which shall remain in full force and effect. The effected clause shall be replaced by a clause with the same legal spirit as the unenforceable clause.