Terms of Service

1. Introduction

1.1 Agreement Overview "These Terms of Service ('Terms') form a legal agreement between you, as the 'Customer', 'Administrator', or 'End User', and CELLthium (referred to as 'CELLthium', 'we', 'our', or 'us'). These Terms apply to both Business to Customer (B2C) and Business to Business (B2B) relationships. They govern your use of and access to CELLthium's services, including our website [https://www.cellthium.com or https://www.cellthium.de or https://www.cellthium.xyz] ('Site') and any software, hardware, applications, tools, features, and other products and services provided by us (collectively, 'Services')." These Terms are designed to be compliant with German law and are applicable to our global customer base.

1.2 Acceptance of Terms By executing an order, purchasing Services, clicking to accept these Terms, or by accessing or using the Services, you agree to be bound by these Terms and any additional terms incorporated by reference. If you represent an organization (B2B), such as your employer, you agree to these Terms on behalf of that organization. If you are a consumer (B2C), these Terms also respect your consumer rights as per applicable laws. In this context of B2C, your acceptance of these Terms signifies your acknowledgment of your rights and protections under consumer law, particularly under German jurisdiction, which also respects the consumer protection laws of your locality.

1.3 For Customers If you accept these Terms on behalf of an entity (e.g., your employer) for using the Services ('Customer'), you represent and warrant that you have the authority to bind the entity to these Terms, are 18 years or older, and agree to these Terms on behalf of the entity you represent. You confirm that you are authorized to grant all permissions and licenses provided in these Terms and to bind the entity to the Terms of Service. In B2C scenarios, these Terms respect your statutory consumer rights.

1.4 For End Users As an End User of the Services, you affirm that you are legally competent to agree to these Terms and are 18 years or older. In the context of B2C, you acknowledge your rights under consumer protection laws. In B2B transactions, you acknowledge that CELLthium, the Customer, and Administrators can access and manage your End User account. CELLthium's Services are offered to both businesses and individual consumers. The applicable privacy policies, including GDPR for individuals within the EU, govern the use and sharing of your personal information within our Services.

1.5 Agreement to Arbitrate For Customers and End Users in the European Union, these Terms are governed by local jurisdiction and consumer rights over arbitration. Disputes arising under these Terms shall be resolved in the courts of the Customer's domicile. This clause does not prevent either party from seeking interim injunctive relief in any court of competent jurisdiction

2. General Service Terms

2.1 Provision of Services You may access and use the Services in accordance with these Terms, documentation, and applicable laws, including international trade laws. CELLthium acknowledges that future functionalities of the Services are subject to change and will communicate any significant changes in a timely manner, especially considering the different needs of B2B and B2C customers.

2.2 Customer Support For assistance with the Services, contact CELLthium at support@cellthium.com, chat with our artificial intelligence chatbot (AI-ChatBot) or call our support line. We provide tailored support for both B2B and B2C customers, acknowledging the unique requirements of each, such as e.g. legal and cultural differences in various jurisdictions.

2.3 Telephone Communications By providing phone numbers, you consent to CELLthium contacting you for account management, dispute resolution, debt collection, or as needed to service your account or enforce these Terms. For B2C customers, this consent includes explicit opt-in for marketing communications. Standard charges may apply. You can unsubscribe from marketing communications via provided links.

3. Customer Use of the Services

3.1 Customer Responsibilities Customers, whether businesses or individual consumers, are responsible for all usage of Services through their account, including End Users and Administrators. This includes compliance with laws for data collection and handling. For B2B customers, specific attention should be paid to the General Data Protection Regulation (GDPR) within the EU for handling of personal data. For B2C customers, additional consumer protection laws apply, ensuring fair use and protection of consumer rights.

3.2 Compliance with Laws CELLthium and Customers assume responsibility for compliance with all applicable laws and regulations.

3.3 End User Accounts Customers are responsible for the security of End User accounts and preventing unauthorized use.

3.4 Account Administration Customers must manage Administrator access and account settings responsibly.

3.5 Acceptable Uses CELLthium reserves the right to monitor usage for compliance and legal purposes and may remove or restrict access to non-compliant content.

3.6 Restrictions Customers must not misuse the Services, including reverse engineering, unauthorized sharing, or engaging in prohibited activities.

3.7 Suspension CELLthium may suspend Service access if there's a security risk, legal exposure, or violation of Terms.

4. Intellectual Property Rights

4.1 Reservation of Rights CELLthium retains all rights, title, and interest in its Services and Technology, except for the limited user licenses granted herein. This includes rights relevant to both B2B and B2C use cases.

4.2 CELLthium License CELLthium grants Customers a limited license for business use of the Services in B2B scenarios, and a personal, non-transferable license in B2C scenarios

4.3 Customer License Customers retain rights to their data and grant CELLthium rights for Service operation and improvement. This clause is consistent with data protection regulations, particularly GDPR, and recognizes the different nature of data rights in B2B versus B2C contexts.

4.4 CELLthium Data CELLthium may use aggregated data for service improvement and lawful purposes, in compliance with applicable privacy and data protection laws, especially considering the global nature of our customer base.

4.5 Suggestions Feedback and suggestions become CELLthium's property and may be used without restriction or compensation. However, in B2C contexts, any intellectual property rights in customer feedback will be acknowledged as per consumer protection laws.

4.6 Publicity CELLthium may use the Customer's name and logo in marketing, subject to the Customer's revocation rights. This applies differently in B2B and B2C contexts, with specific attention to the rights of individual consumers.

5. Data Security & Disclosure

5.1 Security Measures CELLthium implements safeguards for data protection but is not liable for data transmission risks.

5.2 User Connections CELLthium is not liable for data shared between Customers and third parties.

5.3 Compelled Disclosure CELLthium may disclose data when legally required or to prevent illegal activities.

5.4 International Transfers Customer data, including personal data of individual consumers (B2C), may be transferred outside the Customer's jurisdiction, including outside of the European Economic Area. For such transfers, CELLthium ensures compliance with the GDPR and other relevant data protection laws. This includes using approved mechanisms such as Standard Contractual Clauses for lawful data transfers.

6. Service-Specific Terms & Conditions

6.1 General Hardware Terms Installation: Unless explicitly agreed upon, the Customer is solely responsible for installing CELLthium's hardware according to our written instructions and documentation. CELLthium is not liable for any costs, expenses, or damages resulting from the installation of the hardware if it is not installed by CELLthium or its authorized contractors. Battery Drain: CELLthium's hardware, when connected to a vehicle's battery, may consume a minimal amount of power. CELLthium is not responsible for any adverse effects on the vehicle's battery due to this power consumption. Compatibility: The Customer is responsible for ensuring that CELLthium's hardware and services are compatible with their vehicles or equipment. CELLthium is not liable for any costs, expenses, or damages arising from compatibility issues.

6.2 Additional Service-Specific Terms Google Maps Features: If CELLthium's services incorporate Google Maps features, the use of these features is subject to the current Google Maps/Google Earth Additional Terms of Service and Google Privacy Policy. Wi-Fi Hotspot Service: For subscriptions that include Wi-Fi Hotspot services, specific terms apply regarding data allotment, over-usage, and security. CELLthium may provide a specific amount of Wi-Fi data per month, with no rollover of unused data. Over-usage or misuse may result in reduced connection speeds or additional charges. CELLthium ensures the security of Wi-Fi Hotspot services but is not liable for any security breaches or damages resulting from the use of these services. Apple Store Apps: If CELLthium offers applications through the Apple App Store, the customer acknowledges that these Terms are between CELLthium and the customer, not with Apple. Apple is not responsible for the content, maintenance, or support of these apps. The customer agrees to use the apps only with Apple devices they own or control, and Apple has no liability for any claims related to the apps. Smart Load Board: CELLthium may provide a Smart Load Board service for logistics and transport facilitation. However, CELLthium is not a freight broker and is not involved in the transactions facilitated by the Smart Load Board. Customers are responsible for verifying the credentials and legal compliance of parties they engage with through this service. Face Match Technology: If CELLthium offers Face Match technology, customers are responsible for complying with all applicable laws, including obtaining necessary consents from individuals whose images or data might be captured.

6.3 Additional Terms for Financed Equipment Customers who finance the purchase of CELLthium's services or hardware through a third party must adhere to the terms of their financing agreement. CELLthium is not responsible for any obligations between the customer and the lender.

7. Fees & Payment

7.1 Fees Customers agree to pay fees as outlined in the Order Form. All fees are due in the currency specified and are non-refundable.

7.2 Invoicing & Payment Invoices are issued according to the Order Form and are payable within the specified period. CELLthium may charge late payment fees and reserves the right to suspend services for overdue payments.

7.3 Credit Card Payments For customers paying by credit card, CELLthium may charge the card for agreed fees according to the Order Form. CELLthium uses a third-party payment processor, and the customer's use of this service is subject to the processor's terms, which are in compliance with the EU Payment Services Directive 2 (PSD2), including requirements for strong customer authentication.

7.4 Taxes Customers are responsible for all applicable taxes related to their purchase of CELLthium's services, excluding taxes on CELLthium's income.

7.5 Late Payments Late payments incur finance charges. CELLthium may recover expenses incurred in collecting overdue amounts.

7.6 Billing Disputes Customers must notify CELLthium of any billing disputes within a specified timeframe for resolution.

7.7 Free Trials and Promotions Terms for free trials or promotional offers are specified, including obligations post-trial and the procedure for trial cancellation.

8. Term and Termination

8.1 Contract and Subscriptions Term The Terms come into effect upon acceptance and remain valid until terminated as outlined herein. Subscription terms are defined in the Order Form and, unless stated otherwise, will automatically renew under the terms specified therein. CELLthium will notify the Customer prior to renewal. The Customer is accountable for all fees until the end of the current Contract Term.

8.2 Termination for Cause Either Party may terminate the agreement if the other Party materially breaches these Terms and fails to rectify the breach within a specified timeframe or if the other Party ceases its business operations or faces insolvency proceedings. CELLthium may also terminate the agreement to comply with legal obligations. In the event of termination due to CELLthium's breach, the Customer is entitled to a pro-rata refund for any services not received as of the termination date.

8.3 Customer Early Termination If the Customer opts to terminate the Services or these Terms prior to the end of the Subscription Term, they must provide timely notice. In the context of B2C, customers have the right to terminate their contract under consumer protection laws and may be subject to different conditions than B2B customers. Early termination may result in liability for the balance due for the remaining Subscription Term, subject to fair and transparent practices in line with EU consumer law.

8.4 Effect of Termination Upon termination, rights granted under these Terms cease immediately. CELLthium is not obliged to maintain any Customer Data post-termination. Specific sections, including intellectual property rights, indemnity, and limitations of liability, will survive the termination of these Terms.

9. Disclaimers

CELLthium disclaims all warranties to the fullest extent permitted by law, providing the Services on an 'as is' and 'as available' basis. However, this disclaimer does not extend to mandatory consumer warranty rights under German and EU law for B2C transactions. CELLthium does not guarantee that the Services will be uninterrupted or error-free, but it acknowledges the mandatory consumer rights to warranty and remedies.

9.1 General Disclaimer CELLthium disclaims warranties to the fullest extent permitted by law and provides services "as is".

9.2 Service Limitations CELLthium is not liable for service interruptions or data inaccuracies.

9.3 IFTA Reporting Customer is responsible for verifying the accuracy of fuel tax reports.

9.4 Wireless Providers CELLthium is not responsible for services provided by third-party wireless carriers.

10. Indemnity

10.1 Customer Indemnity The Customer, whether a business or individual consumer, agrees to indemnify CELLthium against liabilities arising from their use of the Services, breach of these Terms, or negligent acts, to the extent allowed by law. This indemnity for B2C customers will be consistent with consumer protection laws, ensuring that it does not unfairly burden the consumer beyond the legal requirements.

10.2 CELLthium Indemnity CELLthium agrees to indemnify the Customer against liabilities arising from CELLthium’s gross negligence, misconduct, or infringement of intellectual property rights. This indemnity is subject to specific conditions and exclusions as outlined.

11. Limitation of Liability

CELLthium's total liability under these Terms is limited to the fees paid by the Customer within the 12 months preceding the liability event. This limitation does not apply to indemnification obligations or payment obligations in the event of breach or early termination by the Customer. Furthermore, this limitation does not extend to liability for gross negligence, willful misconduct, or any liability for death or personal injury caused by CELLthium’s negligence.

12. Arbitration

12.1 Agreement to Arbitrate These Terms encourage the use of arbitration for resolving disputes, except where prohibited by consumer protection laws. B2C customers in the EU retain their right to seek resolution in their local jurisdiction and are not mandated to use arbitration. The process for arbitration shall align with the principles of fairness and due process, and the option for opting out of arbitration is available to all Customers.

12.2 Informal Dispute Resolution Encourages resolving disputes informally before proceeding to arbitration.

12.3 Arbitration Procedures Outlines the arbitration process and related terms.

12.4 Non-Appearance-Based Arbitration Option for resolving smaller claims without in-person hearings.

12.5 Exceptions and Opt-Outs Specifies exceptions to arbitration and the process for opting out.

12.6 Class Action Waiver Prohibits class actions in dispute resolution.

13. Miscellaneous

13.1 Integration Describes the hierarchy and integration of various documents and terms.

13.2 Severability Invalidity of one part does not affect the rest of the terms.

13.3 Modifications CELLthium’s right to modify terms and notification procedures.

13.4 Assignment Conditions under which these terms may be assigned or transferred.

13.5 Governing Law Jurisdiction and governing law for these terms.

13.6 U.S. Embargo Compliance The Customer agrees to comply with all applicable U.S. and EU embargo regulations and trade laws. This includes not using the Services in any manner that would violate such embargo laws and regulations.

13.7 Causes of Action Time limit for initiating legal action related to these terms.

13.8 Confidentiality Confidentiality obligations of both parties.

13.9 Notices Procedures for sending notices under these terms.

13.10 Force Majeure Liability exemptions for events beyond reasonable control.

13.11 Relationship of the Parties Specification of the independent contractor relationship.

13.12 Export Compliance Customer's responsibility for export compliance.

13.13 Waiver Conditions for waiver of terms.

13.14 Construction Interpretation rules for ambiguities in the terms.

13.15 Third-Party Beneficiaries No third-party beneficiaries under these terms.

13.16 Counterparts Acceptance of electronic and counterpart signatures.

14. Definitions

Detailed definitions of various terms used throughout the agreement. Customer “Customer” means all authorized users of Motive Services including End Users, Administrators, entities which are paying for and/or utilizing Motive Services (can include End Users and/or Administrators).