Terms & Conditions
- General
1.1 This Agreement sets forth the terms and conditions that govern (a) provision and use of Company’s proprietary Platform to deliver software, hosting, and information services (the “Platform Service”) and (b) the set-up, implementation, configuration, training, consulting and other services provided by Company in accordance with a Statement of Work, if attached as Exhibit A or incorporated into this Agreement (the “Professional Services”). The term "Services" means the Platform Service and Professional Services. The Platform Service includes the Customer’s ability to store the Customer Data, subject to the provisions in this Agreement. Company reserves the right to add, change, remove and/or modify the Services, including modifications to functionality, presentation and companion products. To the extent Company includes third party services in the Services, Company will have no responsibility or liability with respect to such third party services.
1.2 Capitalized terms used in this Agreement are defined in Section 12, or elsewhere in this Agreement.
- Services
2.1 Subject to the terms and conditions of this Agreement, Company will provide Customer the Professional Services set forth on the Order Form, and Company will use commercially reasonable efforts to provide Customer, and Customer's employees, consultants, contractors, and agents who are authorized by Customer ("Authorized Users"), the non-exclusive, non-transferable right to access and use the Platform Service during the Term of this Agreement in the manner permitted hereunder and solely for Customer’s internal business purposes. The foregoing right is contingent upon Customer’s and each Authorized User’s compliance with the terms and conditions set forth in this Agreement and the applicable Order Form.
2.2 As part of the registration process for the Platform Service, Customer will identify an administrative user name and password for Customer’s company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Customer shall ensure that only Permitted Users may access and use the Services as provided hereunder
2.3 Subject to the terms hereof, as part of the Professional Services provided hereunder, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit C.
2.4 Nothing in this Agreement grants to Customer any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, whether expressly, by implication, estoppel, or otherwise. As between Company and Customer, all right, title, and interest in and to the Services will remain with Company.
- Use restrictions
3.1 Except as expressly permitted herein or in an applicable Order Form, Customer and it’s Authorized Users will not directly or indirectly: (a) sell, publish, transmit, distribute, transfer, sublicense, lease, rent, copy, adapt, create derivative works of, translate, localize, port, or otherwise modify or commercially exploit the Services; (b) modify, reproduce, translate, copy or create derivative works based on, reverse engineer, decompile, decrypt, disassemble, circumvent or disable any security or technological measures of, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software related to the Services, or any component thereof; (c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove , delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Services; (e ) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement; or (f) access the Services for the purpose of building a similar or competitive product or service.
3.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s policies set forth in these Terms and Conditions and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
- Customer responsibilities
4.1 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). In some cases, Customer will be provided with Company-provided industrial computer to collect data. Customer agrees to return any Company Equipment in accordance with Term and Termination (8.3). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Customer shall provide Company with such access to Customer’s premises and Customer Equipment as is necessary for Company to perform the Services, and provide all cooperation and assistance as Company may reasonably request to enable Company to perform its obligations under and in connection with this Agreement.
4.2 Customer shall be solely responsible for providing all information and data needed from Customer for Company to provide the Services, as well as all information and data needed from Customer for Customer to use the Services. Customer shall ensure that is has obtained all necessary rights to upload, use, transfer and provide any such data and information. Unless otherwise expressly provided in the applicable SOW, Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption during the performance of Services and for any necessary reconstruction thereof.
- Confidentiality
5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized dissemination and use with the same standard of care that it uses to protect its own Confidential Information, but at a minimum reasonable care. Except as required by law, the Receiving Party will not use or disclose the Disclosing Party’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement and as may be required to report to its legal and financial advisors, and regulators, without prior written consent of the Disclosing Party. Confidential Information of Company includes non-public information regarding features, functionality and performance of the Services and Software, and Company Processes (defined below). Confidential Information of Customer includes non-public Customer Data.
5.2 The Receiving Party may disclose the Disclosing Party’s Confidential Information when and to the extent required by law, regulation or court order, but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the Disclosing Party; and (b) gives the Disclosing Party an opportunity to challenge the disclosure.
5.3 The parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief without the necessity of showing actual damages.
5.4 The Receiving Party acknowledges that the disclosure of Confidential Information to it does not transfer any ownership rights therein to it.
- Proprietary rights
6.1 As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Company to exercise Company’s rights and perform Company’s obligations hereunder, including but not limited to the right to (a) post, store, transmit and use the Customer Data in connection with providing the Services herein, (b) modify and create derivative works from the Customer Data in connection with providing the Services, and (c) to create Aggregated Data.
6.2 Unless otherwise set forth in an applicable SOW to the contrary, all Deliverables, ideas, modifications, improvements, concepts, and inventions conceived, developed or reduced to practice, solely or jointly, by Company, its employees, or independent contractors of Company, or other parties, including Customer, in contemplation of or relation to, or in the course of, or as a result of the Services provided hereunder, whether patentable or non-patentable ("Work Product"), shall become the exclusive property of Company, subject to the rights grant pursuant to Section 2.1 above. Customer hereby assigns all right, title and interest in and to all Work Product to Company, including all Intellectual Property Rights contained therein.
6.3 Company and its suppliers shall own and retain all right, title and interest in and to (a) the Platform, (b) the Services, including any and all ideas, concepts, inferences, techniques, inventions, optimizations, processes or works of authorship relating to or derived from the Services, other than the Customer Data, (c) the Software, all derivative works, and all updates, improvements, enhancements or modifications thereto, and (c) all Intellectual Property Rights relating to the foregoing, subject to any applicable rights of their third-party providers in any third party content or technology included therein or provided in connection therewith. All other rights in and to the foregoing are expressly reserved by Company. Company may use the Platform Service with Company’s other customers or in any other manner in Company’s sole discretion. Customer acknowledges and agrees that all Services (including any Software contained therein) are licensed, not sold, by Company to Customer, and nothing in this Agreement or the applicable Order Form or SOW shall be interpreted or construed as a sale or purchase of such Services, any components thereof or data contained therein. Company shall own the Aggregated Data, subject to Customer’s rights in the Customer Data. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Company an assignment of all right, title, and interest in and to the Aggregated Data, including all Intellectual Property Rights relating thereto.
- Payment of fees
7.1 Customer will pay Company the then applicable fees described in the Order Form for access to the Services, Software and Professional Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
7.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (45) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with the Services other than U.S. taxes based on Company’s net income.
- Term and termination
8.1 Subject to earlier termination as provided below, the term of this Agreement is for the Initial Service Term as specified in the Order Form, which shall automatically renew for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party gives notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term.
8.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Processes, Models, Analytics and Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company is obligated to delete stored Customer Processes, Models, Analytics and Data . All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
8.3 When specified in the Order Form, Company will provide Customer with a three-month, no-risk observation period after Equipment (Fitlet industrial PC) is deployed. Company will use Equipment to collect Customer data, enabling estimated savings calculations. At the end of the three month period, Company will provide Customer a proposal with calculated value and SaaS license price. If Customer decides not to move forward, they must return the Equipment immediately.
- Warranty and disclaimer
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform Professional Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Limitation of liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES AND PROFESSIONAL SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
- Definitions
In addition to the terms defined elsewhere in this Agreement, as used herein or in any Schedule, the following terms have the meanings ascribed to them as follows:
12.1 “Aggregated Data” means data and information resulting from the aggregation, calculation, analysis or compilation of Customer Data and/or data from other sources, or related to Customer’s use of the Services, including statistical and performance information related to the provision and operation of the Services; provided that such resulting data does not identify Customer as the source of any such data.
12.2 “Company Processes” means all trade secrets, technology, templates, software, workflows, including technical information, inventions, information, data, materials, discoveries, works of authorship, documents, documentation, tools, models, computer programs, software (including source code and object code), firmware, designs, drawings, specifications, processes, procedures, techniques, skills, know-how, algorithms, diagrams, methodologies, and all tangible embodiments of each of the foregoing (in whatever form or media), Confidential Information of Service Provider, and all Intellectual Property Rights in each of the forgoing used, conceived, developed, or licensed by Company in connection with the Services performed hereunder.
12.3 “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Aggregated Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
12.4 “Deliverables” means all information, data, materials, documents, documentation, models, computer programs, software (including source code and object code), firmware, designs, drawings, specifications, processes, procedures, techniques, algorithms, diagrams, methods, and all tangible embodiments of each of the foregoing (in whatever form or media) specifically prepared by or for Company pursuant to a SOW for the provision of Services under this Agreement, and all Intellectual Property Rights therein. Deliverables specifically exclude Company Processes and any Intellectual Property Right therein.
12.5 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise in existence, now or in the future, under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property or industrial property laws, and all similar or equivalent rights or forms of protection, in any part of the world, that may provide an intangible legal right, title or interest In and to any ideas, discoveries, creations, designs, plans, models, forms, formulae, algorithms, data, procedures, methods, processes, techniques, concepts, inventions, developments, improvements, know-how, technology, source code, object code, and proprietary or confidential information.
12.6 “Platform” means the information technology infrastructure, including computers, servers, hardware, databases, database management systems, networks, communications infrastructure, devices, websites, Software, and third party software used by Company to provide the Services.
12.7 “Software” means the computer program code (including the code’s underlying structure, ideas, know-how and algorithms) used as part of the Platform, both in connection with the Services rendered under this Agreement, together with all related and accompanying documentation and data, provided by Company via the Platform Service, all documentation associated therewith, and any updates and enhancements thereto.
12.8 “Completed Installation” means the hardware is fully installed and transmitting required data points with the ability to receive and implement recommendations.
12.9 “Observation Period” means the period of time where Tagup collects data from a site in order to determine potential value for the Customer.
