Please review these Terms and Conditions of Use (the “T&Cs”). All defined terms provided in the applicable Order Form (defined below) are incorporated into these T&Cs by this reference. These T&Cs apply to and govern your access and use of the Services. Please note that your use of the Services constitutes your unconditional agreement to follow and be bound by these T&Cs.
1. Definitions. In addition to the capitalized terms defined in these T&Cs, the following terms when used in these T&Cs will have the respective meanings assigned to them below:
“Account” refers to Customer’s account used to manage Customer’s Subscriptions and all Users.
“Agreement” refers to these T&Cs and the Order Form.
“Data” refers to all data, information and or Work that results from your use of the Product, whether now existing or created in the future.
“Device” refers to a wireless machine adapter (WMA) that is installed on a particular piece of equipment.
“Documentation” means the documentation provided regarding the access and use of the Product.
“Order Form” refers to the document executed by you and us to identify Customer and describe, amongst other things, the Services, Fees, Initial Term and Start Date.
“Product” means, collectively, the Services, Documentation, Devices and Data.
“Services” has the meaning provided in the Order Form and includes any upgrades, additions or replacements.
“Site” refers to the website located at smart.conairgroup.com and any successor website.
“Subscription” refers to Customer’s action of making or agreeing to order a license for a particular Device to connect to and interact with the Services.
“User” refers to an individual that Customer has authorized to access and use the Product under Customer’s Subscriptions.
“you” or “your” has the meaning provided in the Order Form and when the context does not otherwise require, includes your Users.
2. License. Subject to all applicable terms and conditions in this Agreement, we grant to you, and you accept, a limited, nonexclusive, non-transferable, non-sublicensable, revocable worldwide license to access and use the Product during the Term (defined below) only, solely for Customer’s own internal business purposes (the “License”). The License includes the right for Customer to create and use reports, presentations and or assessments using information from or regarding the Product (“Work”), provided such Work is for Customer’s internal use only. All rights not expressly granted to you are reserved by us and our licensors.
3. Quantity. Customer may request an increase to its Subscriptions. The quantity of Customer’s Subscriptions, however, may not be decreased without our prior written consent regardless of the number of Devices utilized by Customer.
4. License Restrictions. You may use the Product only in accordance with this Agreement. All other uses of the Product are prohibited.
Without our prior written approval, you will not, nor will you request or allow any User or third party to (or attempt to): (i) license, sublicense, give, sell, resell, rent, transfer, assign, distribute, time share or otherwise commercially exploit or make available to any third party any part of the Product in any way; (ii) use the Product to provide services to third parties as a service bureau or in any way that violates applicable law; (iii) modify, copy, publish, republish, distribute, adapt or translate any part of the Product, or make derivative works based upon any part of the Product; (iv) create internet “links” to the Services or “frame” or “mirror” any part of the Product on any other server or wireless or internet-based device; (v) reverse engineer, disassemble, reverse compile or otherwise reduce to human perceivable form any part of the Product, except to the extent that applicable law permits it despite these limitations; (vi) apply any other process or procedure to derive the source code of any software included with or available through the Product; (vii) circumvent or disable any security or other technological features or measures of the Product, or attempt to probe, scan or test the vulnerabilities of a network or system, or to breach security or authentication measures, and or (viii) access or use the Product in order to (a) attempt to gain unauthorized access to the Product or the related systems and networks, (b) build a competitive product or service, (c) build a service or product using similar ideas, features, functions or graphics of the Product, or (d) copy or make derivative works of any ideas, features, functions or graphics of the Product.
Customer may make a reasonable number of copies of any Documentation, provided that all such copies include all legends, copyright and other proprietary notices that appear on the original. The License is conditional on your continued compliance with all of the above restrictions in this Section and will immediately and automatically terminate if you do not so comply.
5. Customer Responsibilities. Customer is responsible for all actions and omissions of Users related to the Product. Customer is responsible to provide non-public credentials to each User to authentic the User’s access to the Services under the Account. You must maintain the confidentiality of all User login credentials. No User login credential may be shared or used by more than one individual. Customer may replace former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. You must abide by all applicable local, state, and national laws in connection with your use of the Product, including those related to data privacy and the transmission of technical or personal data.
You must: (i) notify us immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to us immediately and use reasonable efforts to stop immediately any copying or distribution of any part of the Product that is known or suspected by you. Customer is responsible for obtaining and maintaining all communications facilities, internet connectivity, third-party equipment, hardware and software necessary to allow you to access and use the Product (the “Customer Equipment”). In the event that the Customer Equipment does not meet the minimum requirements, Customer is solely responsible for correcting all deficiencies.
6. Intellectual Property; Ownership; Licenses. We (and our licensors, where applicable) will exclusively own all right, title, and interest, including all related intellectual property rights, in and to the Product and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by you or any other party relating to the Product. This Agreement is not a sale of any part of the Product and does not convey to Customer any rights of ownership in or related to any part of the Product, or the technology or our intellectual property rights in the Product. Our name, our logo, and the names associated with the Product are trademarks of Company or third parties and no right or license is granted to use them.
We reserve the right, from time to time, to improve, add to, remove or otherwise modify the functionality, features and services offered as part of the Product. We and our licensors, as applicable, retain all ownership, intellectual property rights and all other right, title and interest in and to the Product and the software and technology underlying the Product, and in all copies, improvements, enhancements, modifications and derivative works thereof, including without limitation, all patent, copyright, trade secret and trademark rights.
Regardless of the source from which it derives, upon its creation or compilation, we are automatically deemed the sole author and owner of all Data. You acknowledge and agree that we have full discretion regarding any and all use of the Data. In the event that applicable law does not authorize us to be deemed the owner of any Data, without additional compensation, you agree to and hereby do assign and, upon creation thereof, automatically assign to us all rights, titles and interests you may have in and to all Data.
In the event that applicable law does not authorize us to be deemed the owner of Data and does not permit you to assign to us all rights, titles and interests in the Data, without additional compensation, you hereby grant us an exclusive, transferable, royalty-free, fully paid, perpetual, irrevocable, worldwide license, with right of sublicense through multiple levels of sublicense, under all of your intellectual property rights in and to any and all Data to: (i) reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Data or other work product in any medium or format, whether now known or hereafter discovered, (ii) use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived from the Data or other work product, and (iii) exercise any and all other present or future rights in the Data and other work product.
7. Fees. All Fees for Subscriptions are based on one-Device per Subscription. At all times, you may use the Services with only those Devices that you have subscribed to interact and communicate with the Services. The initial Fees due to us are stated in the Order Form. All Fees must be paid in accordance with the terms provided in the Order Form. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Customer is responsible for paying for all Subscriptions ordered for the entire Term, whether or not such Subscriptions are actively used. All additional or substitute Subscriptions (a “New Subscription”) will be subject to the following: (i) each New subscription will have an initial subscription period of twelve (12) months, commencing on the date it is added or substituted to the Account; and (ii) the license fee for the New Subscription will be the then current, generally applicable annual per-Device Subscription fee and will be due in advance of your use of the New Subscription. All pricing terms are confidential, and you agree not to disclose them to any third party.
8. Billing and Renewal. We charge and collect in advance for use of the Services. In each event of a renewal of a Subscription, the Fees due for the renewal period will be equal to the number of Subscriptions that are then renewing times the then current, generally applicable annual per-Device Subscription fee. Fees are exclusive of all applicable taxes, levies, or duties imposed by taxing authorities, and Customer is responsible for payment of all such taxes, levies, or duties, excluding only U.S. (federal or state) taxes that are based solely on our income.
9. Nonpayment and Suspension. In addition to any other rights granted to us in this Agreement, we reserve the right to suspend or terminate this Agreement and your access to the Product if the Account becomes delinquent. Delinquent invoices and Accounts are subject to interest of one and one-half percent (1.5%) per month on any outstanding balance, or the maximum permitted by applicable law, whichever is less, plus all expenses of collection. Customer will continue to be charged for Subscriptions during any period of suspension. If we initiate termination of this Agreement, Customer will be obligated to pay the balance due on the Account. Customer agrees that Company may bill Customer for such unpaid Fees. We reserve the right to impose a reconnection fee in the event your access to any part of the Product is suspended due to a breach and you thereafter request access to the Product.
10. Term. This Agreement commences on the Start Date indicated on the Order Form. The Initial Term will be as indicated on the Order form. Upon the expiration of the Initial Term and each renewal period, this Agreement will automatically renew for successive terms of equal duration as the prior term (collectively, the “Term”). Either Customer or us may terminate this Agreement, effective only upon the expiration of the then current Term, by notifying the other in writing at least thirty (30) days prior to the expiration of the then current Term.
11. Termination for Convenience. Customer may terminate this Agreement without cause on ninety (90) days’ prior written notice to us. Customer will be responsible for the payment of all Fees due through the termination date. No Fees will be refunded.
12. Termination for Cause. Any breach of Customer’s payment obligations, unauthorized use of the Product, or breach of the T&Cs will be deemed a material breach of this Agreement. We, in our sole discretion, may terminate or suspend your use of the Product and this Agreement if you breach or otherwise fail to comply with this Agreement.
13. Effect of Termination. The License for each Subscription, and any and all other rights that you may have to access or use the Product, will automatically terminate at the expiration or termination of the Term. Thereafter, subject to Customer’s full payment of all Fees then due, Customer may access the Data, to the extent we have it, for an additional thirty (30) days. You agree and acknowledge that we have no obligation to retain the Data but may do so in our sole discretion.
14. Representations and Warranties. Customer and us both represent and warrant to the other that it has the legal power and authority to enter into this Agreement. You acknowledge that we are not providing legal advice and make no representation or warranty that the Products are compliant with any local, state or national rules, regulations, ordinances or statutes.
15. Indemnification. You will indemnify, defend and hold us, our licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim brought by a third party arising from your negligence or misconduct, including a breach by you of this Agreement. We will indemnify, defend and hold Customer and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out or in connection with a claim brought by a third party alleging personal injury, including death, or tangible property damage and such claim stems from our negligence or a breach of our obligations under this Agreement.
16. Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, WE AND OUR LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, MERCHANTABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS OF ANY PART OF THE PRODUCT. WE AND OUR LICENSORS DO NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE PRODUCT WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR INFORMATION; (II) THE PRODUCT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (III) ANY DATA WILL BE ACCURATE OR RELIABLE; (IV) ERRORS OR DEFECTS WILL BE CORRECTED; (V) THE PRODUCT IS COMPLIANT WITH APPLICABLE LAWS; OR (VI) THE PRODUCT OR THE SERVER(S) THAT MAKE THE PRODUCT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PRODUCT, INCLUDING THE SERVICES, IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY US AND OUR LICENSORS.
17. Internet Delays. THE PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
18. Limitation of Liability. IN NO EVENT WILL OUR AND/OR OUR LICENSORS’ AGGREGATE LIABILITY EXCEED FIFTY PERCENT (50%) OF THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO US IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT WILL WE AND/OR OUR LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY PART OF THE PRODUCT, THE USE OR INABILITY TO USE THE SERVICES, OR INACCURACY OF ANY CONTENT OBTAINED OR DERIVED FROM OR THROUGH THE PRODUCT, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, EVEN IF SUCH PARTY HAD PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS ABOVE WILL NOT APPLY TO OUR INDEMNIFICATION OBLIGATIONS.
19. Laws and Export Control. We and our licensors provide goods, services and use software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. Customer is solely responsible for compliance with all applicable laws, regulations and statutes, including without limitation all requirements of the United States Department of Transportation and the State of California.
20. Notice. We may give notice by means of a general notice on the Services, email to Customer address on record in our account information, or by written communication sent by first class mail or pre-paid post to the Customer address on record in our account information. Such notice will be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). Customer may give notice to us (such notice will be deemed given when received by us) at any time by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us at the address on the Order Form.
21. Modification to T&Cs. We may from time to time make modifications (by amendment, replacement, and/or adding new provisions) to these T&Cs at any time. Unless a later effective date is stated, the modified version of these T&Cs will be effective once notice is completed. We will provide notice of changes to the T&Cs by: (i) posting the amended version of the T&Cs on the Site; (ii) posting a notice on the Site; or (iii) emailing notice to the email account associated with Customer’s Account. You are responsible to check the Site and Services regularly for modifications of these T&Cs. Your continued use and/or access of any part of the Product after the effective date of a modification to these T&Cs will be conclusive proof that you agree to be bound by the modified version of these T&Cs. Provided that you did not use or access any part of the Product after you received notice of changes to these T&Cs and that the changes are materially detrimental to Customer, Customer may elect to terminate the Term due to the changes to these T&Cs and will be entitled to a pro rata refund of all prepaid Fees if Customer’s request for cancellation clearly states that the cancellation is due to the changes to these T&Cs. Except as detailed in this Section or a mutually agreed written amendment, these T&Cs may not be modified or amended.
22. Assignment; Change in Control. This Agreement may not be assigned by you, by operation of law, change of control, merger, acquisition of all or substantially all of the Customer’s assets or otherwise, without our prior written approval, which we may withhold in our sole discretion. Any purported assignment in violation of this Section will be void.
23. Confidential Information. All non-public, confidential or proprietary information of the disclosing party, including but not limited to specifications, designs, plans, documents, business operations, pricing, discounts or rebates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the disclosing party. Upon the disclosing party’s request, the receiving party must promptly return all documents and other materials received from the disclosing party. The disclosing party will be entitled to injunctive relief for any violation of this Section. This Section does not apply to (i) use or disclosure of the Data by us, our licensors or our agents, or (ii) information that is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by the receiving party on a non-confidential basis from a third-party. Notwithstanding anything else in this Agreement, we may monitor your use of the Product in an aggregate or de-identified manner, including to compile statistical and performance information related to the provision and operation of the Product.
24. Service Level Agreement. We are committed to the efficient delivery and performance of the Services and detail the Acceptable Service Level for the Services in the Service Level Agreement (“SLA”). Please see Schedule 1 below for the SLA. We may change, amend, add to, replace, and/or discontinue the SLA from time to time in our sole discretion.
25. Survival. The provisions of Sections 4, 5, 6, 9, 13, 15, 16, 18, 19, 20, 23 and 26 of these T&Cs will survive the termination or expiration of this Agreement for any reason.
26. General. This Agreement will be governed by laws of the Commonwealth of Pennsylvania, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in Pittsburgh, Pennsylvania. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and us as a result of this Agreement or use of the Product. Any failure by us to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. The Agreement supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. No text or information set forth on any other purchase order, preprinted form, or document (other than an Order Form, if applicable) will add to or vary the terms and conditions of this Agreement.
Service Level Agreement (“SLA”) for SmartService
All defined terms provided in the applicable Order Form and the T&Cs are incorporated into this SLA by this reference.
A. Acceptable Service Level. We will use commercially reasonable efforts to make the Services associated with the Account available to you with a Monthly Uptime Percentage (defined below) of at least 99.7% during each calendar month (the “Acceptable Service Level”) of the Term. In the event that we do not meet the Acceptable Service Level for a particular calendar month, Customer will be eligible to receive a Service Credit (defined below) as described in this SLA.
B. Monthly Uptime Percentage. As used in this SLA: (i) “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the applicable calendar month in which the Service was in a state of Unavailability (defined below); and (ii) “Unavailability” means when all running instances of a Service within our control have no external connectivity for one (1) minute or longer and the lack of such connectively is not a result of or during Excluded Downtime (defined below). As applicable, the Services will be assumed to have been 100% available during any period of time that you did not have an Account or your Account was suspended.
C. Excluded Downtime. As used in this SLA, “Excluded Downtime” refers to Service downtime or performance issues: (i) that result from maintenance or updates of the Services or any of our networks or servicers used to provide the Services, but limited to no more than one (1) hour of such maintenance in a calendar month; (ii) that result from any maintenance or updates which you request and/or preapprove; (iii) that result from a suspension or termination of Services, in accordance with the terms of the Agreement; (iv) caused by an Uncontrollable Event (defined below); (v) that result from any actions or inaction of you or any third party; and/or (vi) that result from your use of the Product, third party equipment, Customer Equipment or other technology (other than third party equipment within our direct control). As used in this SLA, “Uncontrollable Event” refers to any of the following: circumstances beyond our reasonable control, including acts of God, fire, explosion, earthquake, flood, storms or other elements of nature, blockages, embargoes, riots, acts of civil or military authority, war, terrorism (including cyber terrorism), labor disputes, strikes, acts or omissions of internet traffic carriers, internet service disruptions; utility failures, systemic electrical, telecommunications or other industrial disturbances, or actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services).
D. Service Credits. Your exclusive remedy for all matters stemming from or relating to the Acceptable Service Level will be eligibility for Service Credits pursuant to this SLA. The Service Credits are based on the pro-rata Fees that Customer paid for the Services that failed to meet the Acceptable Service Level during the subject calendar month (“Paid Fees”). In each event that Service Credits are owed to Customer, the “Service Credit” will be an amount that is equal to the mathematical product of (i) Paid Fees multiplied by (ii) five (5) percent (5%).
E. Request for Service Credits. To receive Service Credits due to our failure to meet the Acceptable Service Level for a particular calendar month, Customer must notify us of the Customer’s eligibility for Service Credits by the 15th day of the following month. A notice must be sent by Customer and include: (i) the words “Service Credit Claim” in the subject line; (ii) a summary of the incident(s) of Unavailability and those Users which were impacted; and (iii) a copy of screen shots, logs and lists of dates and times, if any, to substantiate incidents of Unavailability. All notices must be made in good faith and you agree to provide us reasonable cooperation and assistance in our efforts to research the incidents and duration of reported Unavailability. If a failure to meet the Acceptable Service Level is confirmed by us following your notice, we will immediately issue you the eligible Service Credits. Absent manifest error, our internal records, logs and calculation of Monthly Uptime Percentage will be deemed accurate and conclusive.
F. Use of Service Credits. Issuance of Service Credits will not entitle Customer to a refund. Instead, issued Service Credits will be first applied and credited against Fees as they become due. If Customer’s Account is terminated before all Service Credits are exhausted, no refund will be issued.
G. Application. This SLA applies separately to each Account.