Client Services Agreement
This Client Services Agreement is applicable to all Equipment, Applications, and Services. Additional terms and conditions specific to the Equipment, Applications, and Services are set forth in the document entitled “Additional Terms and Conditions for Equipment, Applications, and Services”, which is incorporated herein by this reference. This Agreement is effective on the Effective Date (as defined below).
“Affiliate” means any entity that directly or indirectly, owns or controls, is directly or indirectly owned or controlled by, or is directly or indirectly under common ownership or control of or with a Party to this Agreement, now or in the future. “Control” means having the power to direct management or affairs of an entity and “ownership” means the beneficial ownership of more than 50% of the voting equity interests or equivalent interests in an entity.
“Agreement” means this Client Services Agreement and all documents referenced and incorporated herein.
“Application(s)” means the software application(s) and content covered by this Agreement and sold, licensed or offered for sale or license to Client by Service Provider.
“Associated Parties” has the meaning provided in Section 7 (Limitation of Liability).
“Client Data” means Client’s information or data that is shared in connection with the Services or otherwise exchanged between Client and IoT-A or otherwise obtained by IoT-A or its supplier(s) or Service Provider in connection with the provision and use of the Products.
“Effective Date” has the meaning provided in Section 3(a).
“End User Portal” means the online portal operated by IoT-A that is accessible by Client for the purpose of obtaining information about the Products.
“Equipment” means each device or other equipment and related components and accessories which are required to facilitate the Applications and/or Services.
“Laws” means all laws, statutes, ordinances, codes, regulations, rules, directives, and orders (including, but not limited to, requirements for permits, licenses, and approvals) of any federal, state, or local governmental entity, or agency thereof.
“Party” means either IoT-A or Client and together they are referred to as the “Parties.”
“Products” means collectively Applications, Equipment and Services under this Agreement. IoT-A and its suppliers, including but not limited to suppliers of Applications, Equipment manufacturers, and other Third Parties, own and retain all title (unless otherwise expressly agreed in writing between the Parties) and intellectual property rights to all Applications and Equipment Products.
“Service Provider” means the entity authorized by IoT-A to resell the Products to Client.
“Services” means individually and collectively, the services purchased by Client from Service Provider and covered this Agreement, including (i) the proprietary service(s) provided to Client either by IoT-A, its Affiliates or Third Parties; (ii) the hosting, maintenance, operation, delivery and other services in support of such proprietary service, including the End User Portal, and (iii) any other services provided by IoT-A under or in connection with this Agreement.
Third Party” means any person or entity that is not a party to this Agreement.
2. Purchase of Products.
The parties mutually acknowledge that Client shall purchase the Products from Service Provider, an authorized reseller of IoT-A’s Products.
3. Term and Termination.
(a) Term: This Agreement is effective when executed by both IoT-A and Client (“Effective Date”) and will remain in effect until the third anniversary of the Effective Date (“Initial Term”). Thereafter the Agreement shall renew on an annual basis for additional one (1) year periods (each a “Renewal Term”), unless terminated as provided below. The Initial Term, together with any Renewal Term(s), is referred to as the “Term” herein. Either Party may elect not to renew for any Renewal Term by giving the other Party written notice of its desire not to renew at least thirty (30) days prior to the start of the respective Renewal Term.
i. Termination for Default – Either Party may terminate this Agreement following breach by the other Party of any of its representations, warranties, covenants, or other obligations in this Agreement, in the event such breach has not been cured within thirty (30) days after the non-breaching Party provides notice of such breach to the breaching Party. Either Party may terminate immediately with notice to the other Party in the event (a) the other Party files for bankruptcy protection or has an involuntary petition for bankruptcy filed against it and fails to have the petition stayed within sixty (60) days after the petition filing; (b) the other Party makes an assignment for the benefit of creditors; (c) of the appointment of a trustee or receiver or similar officer of any court for the other Party; (d) the other Party becomes insolvent; or (e) the other Party sells or transfers substantially all of its property to creditors, if in any such case termination is permitted by applicable Law. For purposes of this Agreement, “Default” shall mean the occurrence of any of the foregoing that entitles the non-breaching Party to terminate this Agreement.
Notwithstanding anything contained herein to the contrary, IoT-A reserves the right, upon notice to Client, to suspend any Services purchased by Client, and/or suspend delivery of any Application(s) and/or Equipment, in the event Client is in breach of its obligations under this Agreement (or any Documentation or requirements associated with the Products) and such suspension may remain in effect for so long as Client remains in breach.
ii. Effect of Termination –In the event of termination due to Default, the non-defaulting Party shall have all rights and remedies available at Law or in equity, subject to the limitations contained in this Agreement. Sections 3(b)(ii), 4, 6, 7, 8, 10, 11, 15, and 16 and any other provision that should naturally extend beyond the termination or expiration of this Agreement shall survive termination or expiration of this Agreement for any reason.
Upon the expiration or termination of this Agreement for any reason: (i) IoT-A shall discontinue all Services; (ii) IoT-A may delete all Client Data; and (iii) the provisions of the Additional Terms and Conditions for Equipment, Applications, and Services with respect to expiration or termination as to the Applications, Equipment and Services shall apply.
(c) Early Termination by Client: If Client chooses to terminate this Agreement for any reason other than a Default by IoT-A prior to the expiration of the Initial Term, Client agrees to: (A) arrange for return to IoT-A, at Client’s expense, all Equipment requested by IoT-A to the location specified by IoT-A within thirty (30) days following IoT-A’s request; and (B) pay to IoT-A within thirty (30) days of the effective date of termination the “Early Termination Fee.” The Early Termination Fee is an amount equal to multiplied by a fraction, (i) the numerator which is the number of months in the Initial Term minus the number of full calendar months from the Effective Date until the month in which the date of termination occurs, and (ii) the denominator which is the number of months in the Initial Term.
For example, if the total dollar amount for the three-year Initial Term were $36,000 and Client terminated after 15 months, Client would owe IoT-A $21,000 based on the following:
$36,000 x (36-15)/36=$21,000
All charges for the Products shall be paid by Client to Service Provider in accordance with the terms agreed to between Client and Service Provider.
5. Representations and Warranties.
Client represents and warrants to IoT-A that: (i) it has the full and unrestricted right, power and authority to enter into this Agreement; (ii) its execution, delivery, and performance of this Agreement has been duly authorized by all necessary action, and this Agreement will be a valid and legally binding obligation of Client, enforceable in accordance with its terms upon execution; (iii) it does not have as of the Effective Date, and will not enter into, any agreements or understandings of any kind that conflict with this Agreement or would prohibit or restrict Client’s performance of its obligations under this Agreement, and (iv) it will comply with all Laws applicable to its performance under this Agreement (including but not limited to Client’s use of all Products which shall be in compliance with all Laws).
6. DISCLAIMER OF WARRANTIES.
THE EXPRESS, BUT LIMITED, WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT. IOT-A, FOR ITSELF AND ON BEHALF OF ITS SERVICE PROVIDER (FOR PURPOSES OF THIS SECTION 6, COLLECTIVELY “IOT-A”), HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY CONTENT, APPLICATIONS OR OTHER SOFTWARE, EQUIPMENT OR SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, WHICH ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IOT-A EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. IOT-A FURTHER DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE APPLICATIONS (AND ANY OTHER SOFTWARE), EQUIPMENT OR SERVICES DEVELOPED, MARKETED OR SOLD BY THIRD PARTIES, ANY FAILURE OR INTERRUPTON OF THE INTERNET CONNECTIVITY OR CELLULAR CONNECTIVITY, AS THE CASE MAY BE, AND ANY FAILURE OF THE PRODUCTS TO OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, OR SYSTEM PROVIDED OR USED BY CLIENT. IOT-A DOES NOT WARRANT THAT THE PRODUCTS (INCLUDING BUT NOT LIMITED THE SERVICES) ARE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES OR WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS. ONLY DISCLAIMERS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY AND IOT-A’S WARRANTY LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT ALLOWED BY LAW.
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL IOT-A, ITS AFFILIATES, SERVICE PROVIDER OR THEIR RESPECTIVE DIRECTORS, OFFICERS, CONTRACTORS, SUPPLIERS, AGENTS (WHICH INCLUDES WITHOUT LIMITATION THE INSTALLER OF THE PRODUCTS IF IOT-A IS RESPONSIBLE FOR INSTALLATION) OR EMPLOYEES (COLLECTIVELY, IOT-A’S “ASSOCIATED PARTIES”), BE LIABLE TO CLIENT UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR EXEMPLARY, PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR SIMILAR DAMAGES, WHETHER OR NOT IOT-A HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE, INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST PROFITS, LOST OR DAMAGED DATA, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, OR COSTS TO PROCURE REPLACEMENT SOFTWARE, EQUIPMENT OR SERVICES.
IN NO EVENT SHALL IOT-A OR IOT-A’S ASSOCIATED PARTIES BE LIABLE TO CLIENT FOR ANY REASON, WHETHER IN CONTRACT OR IN TORT, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, FOR ANY DIRECT DAMAGES ARISING OUT OF OR BASED UPON THIS AGREEMENT IN EXCESS OF $5,000.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY. ONLY LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY AND IOT-A’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT ALLOWED BY LAW.
Client hereby agrees to indemnify, defend, and hold harmless IoT-A, and IoT-A’s Affiliates, and their respective employees, officers, directors, and agents (the “Indemnified Party”) from and against all losses, damages, liabilities, settlements, judgments, demands, fines, penalties, awards, costs, and expenses (including reasonable attorneys’ fees and court costs) for any third-party claims, actions, suits, or proceedings arising out of or in connection with a breach of this Agreement (or any EULA, Documentation, or other requirement(s) of Third Parties to which Client is bound in connection with one or more of the Products), negligent acts or omissions, or willful misconduct relating to this Agreement by Client, its employees, officers, directors, contractors, subcontractors, or agents (each a “Claim”); provided, however, that Client shall not be responsible to the extent a Claim arises out of a breach of this Agreement by, or the negligence or willful misconduct of, IoT-A, or its employees, officers, directors, contractors, subcontractors, or agents. The Indemnified Party will give notice to Client within ten (10) days after learning of a Claim, provided, however, the failure to notify within ten (10) days will not relieve Client of its obligations herein except, and only to the extent that, such failure to notify, or delay in notification, materially prejudices the defense. Client may take over the defense of a Claim by giving notice to the Indemnified Party, in which case the Indemnified Party will not admit liability or settle the Claim. In the event that Client does not elect to take over a Claim, then it will be bound by the actions of the Indemnified Party and shall pay the Indemnified Party’s reasonable attorneys’ fees and expenses in addition to its other obligations hereunder. Client will pay all amounts due in connection with Claims within thirty (30) days of notice of such amounts being due.
9. Restrictions on Use.
Client agrees not to:
i. resell, copy or otherwise exploit the Products;
ii. modify or make derivative works based on the Applications or the Services;
iii. decompile, disassemble or reverse engineer any of the software or content used in the Products; and
iv. use the Products to infringe the copyrights or intellectual property rights of others.
10. Governing Law and Dispute Resolution.
This Agreement will be governed by and construed in accordance with the laws of the State of Illinois, without regard to its principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
Client or IoT-A shall provide notice to the other Party of any dispute, controversy, or claim arising out of, under, in connection with, or relating to this Agreement or breach of this Agreement (“Dispute”). The Parties shall resolve Disputes as follows:
(i) Informal. The Parties shall first attempt to resolve Disputes informally, by engaging in good faith negotiation. If such negotiations do not result in a successful conclusion of the Dispute within thirty (30) days from the date of the initial notice, either Party may initiate more formal proceedings described below.
(ii) Formal: Arbitration. If the above informal efforts do not resolve the Dispute, such Dispute will be resolved solely by confidential binding arbitration by a single arbitrator (unless the amount in Dispute is $100,000 or more, in which case the panel shall be comprised of three arbitrators unless the Parties mutually agree otherwise) in accordance with the commercial arbitration rules of JAMS/ENDISPUTE in effect at the time the arbitration commences. Each Party shall bear its own expenses in connection with such arbitration. The award of the arbitrator shall be final and binding.
The Parties will cooperate with JAMS/ENDISPUTE and with one another in selecting an arbitrator from JAMS/ENDISPUTE’s panel of neutrals, and in scheduling the arbitration proceedings. The arbitrator may in his sole discretion award to the prevailing Party reimbursement of reasonable attorney’s fees and costs associated with the arbitration proceedings. To the maximum extent practicable, the arbitrator(s) and the Parties will take all action required to conclude any arbitration proceeding within one hundred eighty (180) days of the filing of the Dispute. No arbitrator or other party to an arbitration proceeding may disclose the existence, content or results thereof, except for disclosures of information by a Party as required by Laws.
The provisions of this Section 10 may be enforced by any Court of competent jurisdiction, and the Party seeking enforcement of this provision shall be entitled to reimbursement for all attorneys’ fees and costs associated with such enforcement. The arbitration shall be held in Chicago, Illinois.
11. GRANT OF RIGHTS.
THE PARTIES AGREE THAT IOT-A HAS THE UNCONDITIONAL RIGHT DURING THE TERM AND THEREAFTER TO USE, COLLECT, POSSESS, REPRODUCE, MODIFY, AGGREGATE, PROCESS, COMBINE AND ANALYZE CLIENT DATA FOR THE PURPOSES OF USING ANONYMIZED AGGREGATED DATA TO ANALYZE AND PERFORM MARKET RESEARCH AND DEVELOP AND MODIFY INSIGHTS, GENERATE REPORTS FOR CLIENTS OF IOT-A AND OTHER THIRD PARTIES, DEVELOP MARKETING RECOMMENDATIONS AND IDENTIFY OPPORTUNITIES FOR ENHANCED AND FUTURE SOLUTIONS TO SERVE IOT-A’S BASE OF CLIENTS, AND FOR ANY OTHER LAWFUL PURPOSE, PROVIDED THAT AT ALL TIMES IOT-A AGGREGATES AND ANONYMIZES ANY SUCH CLIENT DATA.
12. Client Support.
IoT-A will use reasonable efforts to provide Client with the support for the Products as described in the Additional Terms and Conditions for Equipment, Applications, and Services.
13. User Accounts.
Client agrees that it is Client’s sole responsibility to safeguard all usernames and passwords and other access credentials for Client’s personnel who have access to the Applications, Services and the End User Portal and to limit access to its authorized personnel. Client agrees to accept responsibility for all activities that occur using Client’s usernames or passwords.
15. Monitoring and Enforcement.
IoT-A reserves the right, but not the obligation, to monitor Client’s access and use of the Products or the End User Portal without notification to Client. IoT-A may record or log Client’s use. IoT-A reserves the right, but does not assume the obligation, to investigate any violation of this Agreement or misuse of the Products or the End User Portal. IoT-A may:
i. with or without notice to Client, remove, disable access to, or modify any content or resource that violates this Agreement or any other agreement IoT-A has with Client for use of the Products;
ii. take any lawful steps to enforce this Agreement or any other agreement IoT-A has with Client for use of the Products;
iii. report any activity that IoT-A suspects violates any Law or regulation to appropriate law enforcement officials, regulators, or other appropriate Third Parties; and
iv. IoT-A may also cooperate with law enforcement agencies, regulators or other appropriate Third Parties to help with investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Agreement.
(d) Force Majeure. The obligations of each Party under this Agreement shall be suspended while such Party is unable to perform due to any act of God, fire, casualty, flood, earthquake, war, epidemic, riot, insurrection, or any other cause beyond the reasonable control of the Party invoking this Section 16(d), but not due to such Party’s fault or negligence (“Force Majeure Event”).In such case, the affected Party shall give written notice of such suspension to the other Party, specifying in reasonable detail the nature of the Force Majeure Event causing such suspension.The affected Party will use reasonable efforts to mitigate the effects of the Force Majeure Event and to resume performance as soon as practicable.
. IoT-A reserves the right to (i) change the URL for any document referenced and incorporated into this Agreement; and (ii) change or update any document referenced and incorporated into this Agreement by posting such revisions to the online document. Changes to the online documents will become effective upon posting.
(o) Publicity. Each Party agrees not to make public announcements regarding this Agreement or the transaction(s) contemplated by this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld; provided, however, Client authorizes IoT-A to use Client’s name and logo in IoT-A’s promotional, advertising and marketing materials and on its website solely for the purpose of identifying Client as a customer of IoT-A’s. In addition, IoT-A shall be entitled to use, without any compensation, any feedback about the Products provided to IoT-A or Service Provider by or on behalf of Client.