Fluid Eye®
General Terms for Customers and Business Partners
1. Applicability of the General Terms
These General Terms for Customers and Business Partners (the “General Terms”) are applied to the Agreement entered into between the Supplier and the Customer regarding the supply of the Service, unless and to the extent not otherwise agreed under the Agreement.
2. Definitions
The following terms have the following meanings, the plural including the singular and vice versa:
Agreement means the agreement entered into between the Parties with regard to the supply of the Service by the Supplier to the Customer and into which agreement these General Terms have been incorporated;
Agreement Period means the initial period of validity of the Agreement;
Confidential Information means any information of confidential nature (including trade secrets and information of commercial value) which may become known to one Party from the other Party, including without limitation the contents of the Agreement, any Raw Data, the contents of the Service or any documentation related to the Service and provided by the Supplier for the use of the Customer;
Customer means the purchaser of the Service under the Agreement;
Raw Data means any data (e.g. raw data about the Customer machines such as oil temperature, machine type information, laboratory analysis) that the Customer owned prior to entering into this Agreement;
Fees means any and all fees payable by the Customer to the Supplier for the Service;
Fluid means Fluid Intelligence Oy, a Finnish limited liability company (Business ID 2751675-2).
Fluid Business Partner means a distributor engaged by Fluid for the purposes of reselling the Service to the Customer on its own account and on its own behalf;
Fluid Generated Data means any data that is generated or processed by Fluid in connection with the Service;
Intellectual Property or IP means materials, documentation, manuals, software, tools, and designs.
Parties means the Supplier and the Customer together;
Party means either the Customer or the Supplier alone;
Service means the Fluid Eye Solution as described in Section 3, related online and offline (contextual) data analytics and related diagnostics equipment provided to the Customer by the Supplier under the Agreement;
Supplier means (i) Fluid, if the Customer (or, Fluid Business Partner, acting as the Customer) purchases the Service directly from Fluid and enters into the respective Agreement with Fluid, or (ii) Fluid Business Partner, if the Customer purchases the Service directly from Fluid Business Partner and enters into the respective Agreement with Fluid Business Partner.
3. Description of the Service
The Service consists of the provision of Fluid Eye Solution. The Fluid Eye Solution is an online performance diagnostics solution of industrial fluids and other substances that offers the Customer an opportunity to remotely monitor the condition, performance, and emissions of selected substances, machines, and processes.
The Service includes a Web-based user interface to Fluid Cloud system, a service platform owned and maintained by Fluid, which offers the Customer a view of their selected substances, machines and processes that are connected to the Fluid Cloud system through a remote diagnostics equipment. The remote diagnostics equipment will be installed in the Customer’s premises to gather data (e.g. oil temperature) that will be processed by Fluid’s proprietary processing unit. This Fluid Generated Data will be sent to the Fluid Cloud system. Data can also be uploaded manually or automatically to the Fluid Cloud without need for remote diagnostics equipment and data will be processed by Fluid. The remote diagnostics equipment will be installed either by the Customer or the Supplier, as separately agreed with the Customer.
The Service is set up with relevant condition and performance alert limits or industry specific algorithms that enable the customer to receive real-time or periodic information about anomalies in the condition or performance of selected substances, machines or processes.
4. Supplier’s Responsibility
The Supplier is responsible for the maintenance of the Fluid Cloud system, and if agreed under the Agreement, for the installation of the remote diagnostics equipment at the Customer’s premises, including its testing.
5. Customer’s Responsibility
The Parties shall under the Agreement or separately agree on the specific substances, machines or processes that will be monitored and connected to the Fluid Cloud system.
The Customer is responsible for any remedial actions after the Service alerts about changes or anomalies in the condition or performance of the selected substances, machines or processes, unless otherwise separately agreed between the Parties in each individual case.
The Customer is responsible for the power supply needed for the operation of the Service, and for the physical immunity of the remote diagnostics equipment.
The Customer shall nominate the contact persons to whom the system alerts will be sent to, including their contact details. The Customer is responsible for valid information of the contact persons, and for updating that information when it changes. To ensure a due delivery of the alerts, the Supplier recommends that at least two contact persons are nominated.
The Customer understands, that only by appropriately responding to the detected changes or anomalies in the condition or performance of the selected substances, machines or processes, and by taking the required remedial actions, the Customer is able achieve the benefits of the Service. The Service itself does not take any remedial actions, and Fluid shall not be liable for any non-actions by the Customer.
In case of the Service alert, and if requested by the Supplier, the Customer shall, at its own cost, deliver an oil, fluid or other specified substance sample to the Supplier for a more detailed analysis. The sample shall be delivered as soon as possible, and at the latest within three (3) working days from the alert. The Customer shall take the sample from a location that gives a reliable sample of the Customer’s relevant substance system. Unless otherwise agreed under the Agreement, the Supplier shall have the right to charge the applicable Fees for conducting the analysis of the oil sample.
6. Provision of the Service
6.1. Service Level
The Supplier shall use reasonable efforts to make the Service in all material respects available and operating during the Agreement Period. The Supplier does not make any warranties on the level of the Service. The Customer expressly acknowledges that the Service may become unavailable, in whole or in part, among others, due to any (i) act or omission by the Customer or other reasons relating to or on the side of the Customer, (ii) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by the Supplier pursuant to the Agreement; (iii) Force Majeure event (as defined in Section 14 of these General Terms) or any service degradation due to such Force Majeure event; (iv) downtime required for the purposes of the maintenance or development of the Service; (v) disabling, suspension or termination of the Service pursuant to the Agreement; or (vi) any other circumstance beyond the Supplier’s reasonable control.
Fluid shall repair any failures that occur in the Service as soon as reasonably possible, if such failures are capable of being repaired. If the failure is caused by an act or omission by the Customer or other reasons relating to, or on the side of the Customer, Fluid is entitled to charge reasonable repair costs from the Customer.
6.2. Use of the Service
The Supplier shall provide the Customer with access credentials to the Fluid Cloud system, which enables the Customer to view their selected substances, machines or processes and receive detailed information on the diagnostics results.
The Customer shall prevent any unauthorized use of the Fluid Cloud system and ensure that the Service is used solely for the purposes of diagnosing the Customer’s selected substances, machines or processes. Any use of the Service is further subject to the specific Service terms and conditions or instructions issued by Fluid from time to time. The Customer shall not analyze, decompile, or attempt to reverse engineer the Service or any part thereof.
7. Fees and Payment
The Fee payable to the Supplier by the Customer for the Service is set forth in the Agreement.
The Customer shall pay the Supplier the Fee monthly in advance against an invoice issued by the Supplier within fourteen (14) days from the date of the invoice in euros, unless otherwise agreed in the Agreement.
In case the Customer fails to pay any Fee or any other amount payable under the Agreement by its due date, the Customer shall pay to the Supplier an annual interest of 10 per cent on such delayed payment. The number of interest days is 30 days for each month, and 360 days for the year.
8. Intellectual Property
All right, title and interest in and to the Service and IP provided by the Supplier, including all patent, copyright, trademark and other intellectual property rights therein, are and will remain with Fluid (for any third-party IP, the rights will remain with the respective rights holders). The Customer or Fluid Business Partner has no right, license or authorization with respect to any part of the Service or IP of Fluid.
The Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Raw Data. Customer grants Fluid a perpetual, irrevocable, non-exclusive, paid-up license to use, execute, reproduce, distribute, and prepare derivative works of Raw Data as reasonably required or useful to perform the Service. Fluid is and will remain the sole and exclusive owner of all right, title and interest in and to all Fluid owned IP and Fluid Generated Data and any derivative works, enhancements or modifications made to Fluid Generated Data or Fluid owned IP during the performance of Services, including all intellectual property rights therein.
The Customer shall, at its own cost, make at least one basic oil, fluid or other specified substance analysis annually in accordance with the instructions given by the Supplier and to deliver the results of the analysis to Fluid in order for Fluid to provide and improve the Service.
9. Limitation of Liability
In the event of a fault in the Service, the primary remedy available to the Customer shall be the repair of the Service as set out in Section 6.1 above.
The Service is provided "as is" and the Supplier hereby disclaims all warranties, specifically all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage or trade practice.
The Supplier’s aggregate liability for any damage caused to the Customer by the Service shall be limited to the aggregate amount of Fees actually paid by the Customer to the Supplier for the preceding two-month period prior to the occurrence of the damage. In any event shall the Supplier have no liability for any indirect or consequential damage caused to the Customer, or any damage caused to the substances, machines or processes of the Customer. The Supplier further has no obligation or liability for any loss, alteration, destruction, damage, corruption or recovery of the Raw Data.
Any claim for damage against the Supplier shall be made in writing promptly after the Customer became aware of the event or circumstance giving rise to such claim, and in any event no later than one (1) month from the date the Customer became aware of the event or circumstance giving rise to such claim.
10. Term and Termination
The Agreement Period is agreed upon in the Agreement. After the initial term, the Agreement continues in force until further notice and may be terminated by either Party with three (3) months’ notice period.
The Agreement may be terminated with immediate effect by either Party in the event that the other Party (i) commits a material breach or materially fails to fulfil any of its obligations under the Agreement and (if such breach is remediable) fails to remedy such breach within thirty (30) days from the receipt of a written notice specifying such breach; or (ii) becomes insolvent or files a petition for bankruptcy or insolvency proceedings.
Sections 8 (Intellectual Property), 13 (Confidentiality), and 17 (Governing Law and Dispute Resolution) shall survive and remain in force in accordance with their respective terms and conditions after the termination or expiry of the Agreement.
11. Transfer of Agreement; Subcontractors
Fluid shall be entitled to transfer the Agreement without any notice to the customer. The Customer or Fluid Business Partner shall not be entitled to transfer the Agreement without the prior written consent of the Supplier.
The Supplier shall be entitled to use subcontractors in the performance of Service.
12. Amendments
Any amendments to the Agreement shall be in writing and shall have no effect unless and until executed by the duly authorized representatives of the Parties.
Without prejudice to the immediately foregoing, Fluid reserves the right to change these General Terms with a three (3) months’ prior written notice to the Customer. If the Customer has not objected the change to the General Terms, the change shall be deemed accepted.
13. Confidentiality
Each Party agrees and undertakes that during the term of the Agreement and thereafter it will keep confidential and will not use for its own purposes nor without the prior written consent of the other Party disclose to any third party any Confidential Information unless such Confidential Information (i) is in the public domain at the time of disclosure or later becomes a part of the public domain without a breach of this Agreement; (ii) is received by a Party from a third party, which is under no obligation of confidentiality with respect thereto; (iii) can be shown to have been independently developed by the disclosing Party; or (iv) is required to be disclosed by the disclosing Party by applicable law or regulations or the requirement of any regulatory or supervisory authority that the disclosing Party is subject to.
14. Force Majeure
The obligations of each Party under the Agreement shall be suspended during the period and to the extent that such Party is prevented or hindered from complying with them by any cause beyond its reasonable control including (insofar as beyond such control but without prejudice to the generality of the foregoing expression) strikes, lock-outs, labor disputes, act of God, war, riot, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood or storm in connection with the performance of this Agreement.
15. Fluid Business Partner
For the avoidance of doubt, these General Terms are applied to the Agreement entered into between Fluid and Fluid Business Partner, unless and to the extent otherwise has been agreed between the Parties in the Agreement.
Fluid Business Partner is appointed by Fluid under the Agreement as a distributor of the Service. Fluid Business Partner resells the Service in its own name and for its own account to the Customer and act as an independent trader towards both Fluid and the Customer. The Fluid Business Partner acts on a non-exclusive basis and nothing shall prevent Fluid from appointing other Fluid Business Partners or to continue selling the Service directly. Fluid Business Partner has no right to enter into any Agreement or related commitment on behalf of Fluid. In no event shall Fluid Business Partner be considered acting as an agent or a sales representative of Fluid.
Fluid Business Partner has an obligation to apply these General Terms to any Agreement entered into by it (acting as the Supplier) and the Customer, and not to deviate from the General Terms without a prior written consent of Fluid, and to implement any changes made by Fluid to these General terms, in accordance with Section 12 above, to the Agreements entered into by it with the Customers.
Fluid Business Partner has the obligation to promote the distribution and sale of the Service in a manner consistent with generally accepted business practices and administer all related orders and enquiries diligently and promptly.
In the Agreement entered into between Fluid Business Partner and Fluid is terminated for whatever reason, and unless otherwise agreed between the Parties, Fluid Business Partner shall have the obligation to transfer all the Agreements in force and entered into by Fluid Business Partner with its Customers, to Fluid. However, Fluid Business Partner shall remain liable for any liabilities or other obligations incurred (i.e. the basis of which has arisen) prior to the date of such transfer of the Agreement.
In its capacity of Fluid Business Partner, Fluid Business Partner also acts as the Customer and for the purposes of Fluid Business Partner purchasing the Service from Fluid for resale, the provisions applicable to the Customer shall be applied.
16. Order of Precedence
In the event of any inconsistency between the Agreement, these General Terms or other schedules to the Agreement, the order of precedence in descending order is as follows: (i) the Agreement; (ii) these General Terms; and (iii) other Agreement schedules.
17. Governing Law and Dispute Resolution
The Agreement (and these General Terms) are governed by and construed in accordance with the Laws of Finland excluding the application of its conflict of law rules.
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or validity thereof, will be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shall be one. The seat of arbitration shall be Helsinki, Finland. The language of the arbitration shall be English.