These Connected Services Terms of Service apply to provision or performance of Connected Services by Withair® (herein “Company”) to the user, beneficiary, and/or owner (herein “Customer”).
1. Access Grant to Company. Customer hereby grants to Company the right to access, monitor, control and use Customer’s equipment, products, controls, systems, and system elements, including, but not limited to, building automation systems (“BAS”), HVAC equipment, meters, and loggers (each a “Connected System”) and Customer’s network, network infrastructure, telephone line, modem, and other communication equipment (“Communication Systems” and, together with Connected Systems, “Systems”) to perform any of the following services (collectively, the “Connected Services”): (i) view, collect, extract, transmit, process, and use data relating to the performance and condition of Connected Systems (“System Data”) and Customer’s account information (together, “Customer Data”); (ii) diagnose, operate, modify, repair, and service Connected Systems, as requested by Customer; (iii) deliver services to Customer, including, without limitation, services (pursuant to a subscription agreement) through a web-based application hosted by Company, such as, but not limited to, Withair® intelligent services, Energy Assessment, Active Monitoring, Building Performance, and Energy Performance (each and collectively referred to as “Hosted Services”); (iv) perform statistical or other analyses for its own purposes or on behalf of Customer, including, without limitation, analyses, histories, and trends based on metrics relating to engineering, failure, warranty, energy, predictive, service, and product usage; (v) install patches, bug fixes, updates, and other modifications (“Updates”); (vi) back up and/or restore Customer Data; (vii) investigate Security Incidents (as defined in the “Security Breach Notice” section below); (viii) verify compliance with these terms and any other terms applicable to the Connected Services, and (ix) perform other functions reasonably required to provide the contracted services and comply with applicable laws and regulations. Company’s obligation to perform any Connected Services will depend upon products and services purchased from Company.
2. Systems. If Customer has purchased any Connected Services, Customer shall ensure that the Systems are made available, maintained, installed, and configured for the Connected Services and that Customer Data is available for collection. Company may provide Customer with recommended System elements, configurations, installations, and security measures. Customer acknowledges that the Connected Services do not include support of Customer’s computer hardware, internet browsers, or Communication Systems. Company shall have no liability for (i) losses or the inability to perform due to malfunctioning or unavailable Systems; (ii) Customer’s failure to comply with Company recommendations in writing; (iii) the failure to identify performance issues with the Systems or recommend corrective action to Customer; or (iv) any adverse impact to the Systems. Where Customer becomes aware in the ordinary course that Customer Data is not being collected, Customer is responsible for requesting support through the local Company office.
3. Users. Customer may be required to designate User(s) for purposes of accessing certain Connected Services. Customer shall use commercially reasonable efforts to ensure Users maintain the confidentiality of access credentials. Customer is solely responsible for User actions with regard to access to or use of the Connected Services, including from devices and workstations that interface with Connected Services. Customer shall designate a System Administrator to manage Users’ access, including adding and subtracting Users. The System Administrator shall ensure that multiple Users do not share access credentials. Company has the right to terminate or suspend access to the Connected Services at any time if Company believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the Connected Services, Confidential Information, or Company’s network.
4. Availability. Customer acknowledges that the availability, use, and reliability of the Connected Services, in whole or in part, depends on Communication Systems and third-party product vendors and service providers, including, without limitation, Customer’s internet service and telecommunications provider(s) (“Third-Party Vendors”). Customer also acknowledges that Company has no control over the reliability of Third-Party Vendors. Customer acknowledges and agrees that Company shall not be held liable whatsoever for losses or Service, delivery, or performance failures attributable in whole or in part to Third-Party Vendors’ outages or system failures.
5. Customer Data. All Customer Data shall be owned by Customer. Customer hereby grants to Company an irrevocable, perpetual, nonexclusive, worldwide, royalty-free, sublicenseable, and transferable right to process, reproduce, modify, display, distribute, prepare derivative works, and otherwise use Customer Data to perform the Connected Services and for marketing purposes, subject to the limitations applicable to Confidential Information. Customer warrants to Company that its provision of Customer Data will not infringe upon the intellectual property rights or other legal rights of any person and will not breach any applicable law or regulation. Company shall not publicly disclose such data in any way that identifies Customer as the source of the Customer Data without Customer’s prior written consent. Upon Customer’s written request, Company will endeavor to provide Customer with a copy of Customer Data to the extent then available. Customer acknowledges and accepts that Company does not guarantee the availability of Customer Data.
6. Disaster Recovery. In the event Company experiences a problem with the Connected Services that results in or is expected to result in a loss of service in excess of five working days, Company may transfer the Connected Services to an alternative hosting environment. In such event, Customer acknowledges the following: (i) data imported after the most recent database backup may be lost; (ii) Company may use a different IP address to provide the Connected Services; (iii) Customer may be required to access the Connected Services via a different IP address and/or domain name; and (iv) data collection may not be available.
8. Confidential Information. The Parties agree to take, at a minimum, commercially reasonable security precautions to protect Confidential Information at all times, both during the term hereof and for a period of at least 3 years after the Confidential Information was furnished; provided, however, that any proprietary and trade secret information shall be held in confidence in perpetuity. Customer shall not permit any third party to access the Connected Services or physical hardware deployed at Customer’s facilities to enable operation of the Connected Services except as expressly permitted in a written agreement between the parties. Customer acknowledges that, due to the nature of communication via the internet, Company cannot guarantee the security of Confidential Information or electronic communications passing over the internet. Customer therefore acknowledges that by using the Connected Services, Customer accepts all risks associated with access to and storage of Customer Data.
9. Security. Company has implemented various security measures for the purpose of protecting User’s data against accidental or unlawful access, unauthorized disclosure, loss, destruction, and alteration. Customer and Users are responsible for maintaining the confidentiality of User name(s) and password(s). Customer and Users are responsible for all uses of password(s), whether or not authorized by Customer or Users. Customer must inform Company immediately of any unauthorized use of User name(s) or password(s). Transmission of data over the Internet by its nature entails the use of systems under the control of third parties, and as a result Company cannot ensure total control of the security of such systems. Company will take commercially reasonable efforts to ensure that data and other configuration parameters are not visible or accessed by other customers. Customer and Users acknowledge that the very nature of communication via the Internet restricts Company from offering any guarantee of the privacy or confidentiality of information relating passing over the Internet. In gaining access via the Internet, Customer and Users also acknowledge and accept that electronic communication may not be free from interference by unauthorized persons and may not remain confidential and accept that access and storage of data is at Customer’s and Users’ own risk. Customer shall immediately notify Company in writing of any actual or suspected unauthorized use of any Customer account or disclosure of Confidential Information (“Security Incident”). Customer shall cooperate with reasonable Company requests to investigate Security Incidents, regain possession of Confidential Information, and prevent further Security Incidents.
10. Maintenance Services. Depending on the type of Connected Service, Company may, but is not obligated to, automatically install Updates without providing additional notice or obtaining additional consent from Customer. Company may also provide Updates to Customer to install on its Connected Systems. Customer acknowledges that Updates may result in the Connected Services being unavailable from time to time. Company shall have no liability for any losses resulting from Customer’s failure to install or to permit Company to install an Update or from the periodic unavailability of the Connected Services due to Updates.
11. Third-Party Products. The Connected Services may provide links to third-party websites and enable Customer to access content, products, and services of third parties (“Third-Party Products”). Customer acknowledges that Third-Party Products are not under Company’s control, and Company does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Products. COMPANY HEREBY DISCLAIMS AND CUSTOMER HEREBY DISCHARGES, WAIVES AND RELEASES COMPANY AND ITS LICENSORS AND SUPPLIERS FROM ANY PAST, PRESENT, AND FUTURE CLAIMS, LIABILITIES, AND DAMAGES, KNOWN OR UNKNOWN, ARISING OUT OF OR RELATING TO CUSTOMER INTERACTIONS WITH THIRD-PARTY PRODUCTS. CUSTOMER HEREBY WAIVES ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
12. Company Liability. Customer agrees that Company, its affiliates and their respective directors, officers, employees and agents, and its licensors and suppliers shall not be liable for any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of Customer’s and each User’s (i) use of the Connected Services and any associated deliverables; (ii) violation of the terms applicable to Connected Services; (iii) Company’s possession or use of data, information or articles supplied by Customer to Company; and (iv) violation of any law or the rights of any third party, including, but not limited to, the infringement of intellectual property rights resulting from the use or possession by Company of Customer Data. Notwithstanding the foregoing, Customer shall not be liable for the negligent acts or omissions of Company. Company reserves the right to assume, at Customer’s expense, the exclusive defense and control of any matter for which Customer is required to indemnify Company, and Customer agrees to cooperate with Company’s defense of such claims. Customer agrees not to settle any such claim without Company’s prior written consent. Company will use reasonable efforts to notify Customer of any such claim, action or proceeding upon becoming aware of it.
13. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS LICENSORS AND SUPPLIERS PROVIDE THE CONNECTED SERVICES “AS IS” AND DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM COMPANY OR THOUGH THE CONNECTED SERVICES SHALL CREATE ANY WARRANTY. COMPANY AND ITS LICENSORS AND SUPPLIERS DO NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE CONNECTED SERVICES, OR AS TO THE TIMELINESS, EFFICACY, OPERABILITY, COMPLETENESS, ACCURACY, RELIABILITY OR CONTENT OF THE CONNECTED SERVICES, OR OF ANY DESIGN, FUNCTION, PROCESS, INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH OR BY THE CONNECTED SERVICES.
14. Customer acknowledges that complex software applications are never entirely free from defects, errors, bugs, or vulnerabilities, and that the use of a remote connection is never entirely secure or free from interruption. NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT THE CONNECTED SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT COMPANY WILL CORRECT ALL ERRORS.
15. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS) ARISING FROM OR RELATING TO THE CONNECTED SERVICES, EVEN IF COMPANY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) COMPANY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE CONNECTED SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY FOR THE PORTION OF THE CONNECTED SERVICES AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
16. Definitions. The following definitions apply to these Connected Services Terms:
16.1. “Confidential Information” means information including, without limitation, Customer Data, computer programs, software, code, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information that Customer or Company know or should reasonably know based on the circumstances of disclosure is confidential to the disclosing party. Confidential Information excludes information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party; (iii) is independently developed by the receiving party without the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or that (v) the receiving party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.
16.2. "User" means an individual who has been authorized by Customer to use, and who has been supplied user identification and a password to access, the Connected Services by Customer (or by Company at Customer's request). Users may include but are not limited to Customer's employees, consultants, contractors and agents; or third parties with which the Customer transacts business.