ConvIOT™ TERMS OF SERVICE
The ConvIOT Terms of Service (the “Agreement“) is entered into by ConvIOT Inc. (“ConvIOT“), a Delaware corporation and the entity or individual executing this Agreement (“You“). This Agreement governs Your use of the Platform (defined below) and associated tools (collectively, the “Service“) with Your Property. BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS TO USE THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. YOU AGREE THAT THESE TERMS ARE ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU.
In consideration of the foregoing, the parties agree as follows:
- “Account” refers to the account for the Service.
- “Confidential Information” means each party’s confidential or proprietary information, including by way of example and not limitation information related to: source code, object code, market share, unpublished patents, patentable ideas, client information, pricing models, current and future marketing ideas and plans, costs, supplier lists, data, client data and client lists, research and testing knowledge and results, trademark information, financial information, competitive analysis, product costs, designs, custom calculations, custom displays specifications, methodologies, and know-how, Personal Information, and information obtained from other persons under agreements to keep such information confidential, trade secrets and other internal secret and proprietary information. Confidential Information does not include information that is publicly available or that becomes known to the general public other than as a result of a breach by an obligation of the recipient of the Confidential Information.
- “Documentation” means the manuals (including technical manuals) and other standard documentation ConvIOT makes available with the Platform.
- “Intellectual Property Right” means any patent, design right, copyright, trademark, service mark (any other application or registration respecting the foregoing), database right, trade secret, software, code, source code, object code, specifications and/or other present or future intellectual property right of any type, wherever in the world possible.
- “MSA” means the master service agreement and any associated statements of work between ConvIOT and You articulating the terms of the relationship between the parties, including fees, services and term.
- “Personal Information” means any PII or PHI or data concerning or relating to a party’s employees, agents, clients or vendors that may be used to uniquely identify or contact such employees, agents, clients or vendors. Personal Information includes the sub-category Personal Sensitive Information (“PSI“). PSI is designated Personal Information that requires additional control and protection, and includes: credit card numbers, debit card numbers, bank account numbers, social security numbers/social insurance numbers, health information, passwords, security challenge information, driver’s license numbers, unique biometric data and Personal Identification Codes.
- “PII” means nonpublic personally identifiable information about You.
- “PHI” means nonpublic personal health information about You.
- “Platform” means any ConvIOT Edge platform compute box combined with or developed with any data processing software to collect and process data from equipment or Your Property and provides configuration management.
- “Third Party” means any third party (i) to which You provide access to Your Account or (ii) for which You use the Service to collect information on the third party’s behalf.
- “Your Data” means any and all information and content that you collect, process or store on Your Property and make accessible to ConvIOT through the Platform or provided to ConvIOT while ConvIOT performs the Services.
- “Your Property” means any web page, application, other property or resource under Your control used to provide data to ConvIOT or the Platform or any servers controlled by You or another third-party other than ConvIOT on which Your Data is stored.
- Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify ConvIOT of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. ConvIOT cannot and will not be liable for any loss or damage arising from Your failure to comply with the above requirements. ConvIOT’s support staff may, from time to time, log into the Platform under Your password in order to maintain or improve service, including to provide You assistance with technical or billing issues.
3. Nonexclusive License.
- License Grant. Subject to this Agreement, ConvIOT grants You a personal, nonexclusive, nontransferable, nonsublicenseable, revocable, limited right and license to install and use the Platform on a device or devices that You own or control solely as necessary for You to use the Platform and Services as set forth in a MSA. This license is valid during the Term.
- Modifications and Updates. ConvIOT reserves the right, at any time, to modify, suspend, or discontinue the Platform (in whole or in part) with or without notice to You if You fail to comply with the terms of this Agreement or the MSA. You agree ConvIOT will not be liable to You or to any Third Party for any modification, suspension, or discontinuation of the Platform or any part thereof. ConvIOT makes no commitment to update the Platform. ConvIOT will make reasonable efforts to keep the Platform operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. ConvIOT reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the Platform with or without notice unless otherwise expressly set forth in a MSA.
- Proprietary Rights Notice. Title to the Service, which includes the Platform and all Intellectual Property Rights therein are and will remain the property of ConvIOT. Except as set forth in this Agreement, neither this Agreement nor any disclosure made hereunder grants any license or usage rights to You under any ConvIOT Intellectual Property Rights. You will not: (1) make available nor distribute all or part of the Platform to any Third Party by assignment, sublicense or by any other means; (2) copy adapt, reverse engineer, decompile, disassemble, work around or modify, in whole or in part, any of the Platform; (3) disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters Your use of the Platform; or (4) rent, lease, lend, resell, transfer or host the Platform, or any portion thereof, to or for Third Parties except as expressly stated in this Agreement or a MSA.
4. Your Data.
- Your License Grant. You grant ConvIOT a personal, nonexclusive, nontransferable, non-sublicensable, irrevocable, royalty-free and fully paid, worldwide license to use or exploit Your Data, solely for purposes of using Your Data in the Platform to use or exploit the Your Data for the sole purposes of (i) performing and improving the Platform, (ii) complying with obligations under this Agreement or a MSA, and (iii) preparing data analytics using de-identified information from You.
- Ownership of Your Data. You own any Your Data and Your Property and You are solely responsible for Your Data and Your Property. You assume all risks associated with use of Your Data and Your Property, including any reliance on its accuracy, completeness or usefulness by others. You hereby represent and warrant that Your Data does not violate our Acceptable Use Policy (defined in Section 4(c)). You alone are responsible for Your Data. You may expose yourself to liability if, for example, Your Data violates the Acceptable Use Policy. ConvIOT may, but is not obligated to, backup any of Your Property, and Your Data may be deleted from the Platform at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of Your Data if You desire. ConvIOT will not share Your Data with any Third Party unless ConvIOT (i) has Your consent for any of Your Data; or (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of Your Data is reasonably necessary to protect the rights, property or safety of ConvIOT, its users or the public; or (iii) provides Your Data in certain limited circumstances to Third Parties to carry out tasks on ConvIOT’s behalf (e.g. billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by ConvIOT in order to provide the Services to You.
- Enforcement. ConvIOT reserves the right (but has no obligation) to review any of Your Data on the Platform, and to investigate and/or take appropriate action against You in our sole discretion if You violate the Acceptable Use Policy or any other provision of these Agreement or otherwise create liability for ConvIOT. Such action may include suspension or terminating Your Account, and/or reporting You to law enforcement authorities. If ConvIOT suspends access to Your Account, ConvIOT will suspend only to the extent reasonably necessary. Unless ConvIOT believes an immediate suspension or termination is required, ConvIOT will provide reasonable notice before suspending or terminating the Platform for the reasons stated above.
- Feedback. If You provide ConvIOT with any feedback or suggestions regarding the Platform (“Feedback“), You hereby assign to ConvIOT all rights in such Feedback and agree ConvIOT shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. ConvIOT will treat any Feedback You provide to ConvIOT as nonconfidential and nonproprietary. You agree that You will not submit to ConvIOT any information or ideas that You consider to be confidential or proprietary.
5. Fees. You agree to pay all subscription fees or charges to your account for the Product Subscriptions and Services according to terms defined in your subscription agreement.
6. Term and Termination.
- This Agreement is effective the day You create an Account (“Start Date“) and continues unless terminated according to this Section 6 or as set forth in the Subscription Agreement (the “Term“). ConvIOT may terminate the Product Subscriptions if You fail to comply with any term(s) of this Agreement or if You use the Platform for any illegal conduct. ConvIOT reserves the right to terminate this Agreement or suspend your account at any time in case of unauthorized, or suspected unauthorized use of the Platform whether in contravention of this Agreement or otherwise.
- Effect of Termination. Upon the effective date of the termination, all legal rights and licenses granted to You hereunder shall terminate immediately and You shall cease all use of the Platform. If ConvIOT terminates this Agreement or suspends your account for any reason set out in this section, ConvIOT shall have no liability or responsibility to you. Upon termination of this Agreement, ConvIOT may, at its sole discretion delete any of Your Data.
7. Other Users, Release.
- Other Users. You are solely responsible for any and all of Your Data and Your Property. Because we do not control Your Data or Your Property, You acknowledge and agree ConvIOT is not responsible for any of Your Data or Your Property, whether provided by You or by others. ConvIOT makes no guarantees regarding the accuracy, currency, suitability, or quality of any of Your Data.
- Release. You hereby release and forever discharge ConvIOT (and its officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Platform (including any interactions with, or act or omission of, other Platform users). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
8. Data Protection, Confidentiality.
- Confidentiality. Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement, providing services under the MSA, or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information.
9. Your Representations to ConvIOT. You represent and warrant that:
- You have the authority to bind Yourself to this Agreement;
- You provided and will maintain accurate, complete and current registration information with ConvIOT, and will promptly provide updated information to ConvIOT in the event such information changes;
- Your use of the Platform will be solely for purposes that are permitted by this Agreement or MSA; and agree not to use the Platform in a manner not covered by this Agreement or the MSA;
- You agree not to infringe upon any Third Party’s intellectual property rights in using the Platform;
- Your use of the Platform will comply with all local, state and federal laws, rules, and regulations.
10. Indemnity. You agree to indemnify, hold harmless and defend ConvIOT, any of its licensors, affiliates or subsidiaries and any members, officers, employees and agents of the foregoing, from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person or entity, arising out of or relating to: (a) Your breach of any term or condition of this Agreement, (b) Your violations of applicable laws, rules or regulations in connection with the Service, (c) any representations and warranties made by You concerning any aspect of the Service or the Platform to any Third Party; (d) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service or the Platform; (e) violations of Your obligations of privacy to any Third Party; and (f) any claims with respect to acts or omissions of any Third Party in connection with the Service or the Platform. ConvIOT will provide You with written notice of any claim, suit or action from which You must indemnify ConvIOT. You will cooperate as fully as reasonably required in the defense of any claim. ConvIOT reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
11. Disclaimers of Warranty; Liability.
- Accuracy of Information. ConvIOT does not guarantee the accuracy or the correctness of the material generated on the Platform because the Platform’s calculations and materials are based in part, on information input by You, Your Data and Your use of the most current version of the Platform. Therefore, the materials appearing on Platform could include technical, typographical, or photographic errors. ConvIOT does not make any sort of warranty or guarantee to the accuracy, suitability, completeness, or reliability of the Platform. If You become aware of any such malfunctioning, kindly inform us, so that we can make arrangements to correct the flaws for the benefits of other Platform users.
- Disclaimer of Warranties and Indemnification. ConvIOT DOES NOT WARRANT THAT YOUR OR USER’S USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES ConvIOT MAKE ANY WARRANTY AS TO THE ACCURACY OF ANY DATA OR AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE PLATFORM. ConvIOT PROVIDES THE PLATFORM “AS IS” WITHOUT WARRANTY OF ANY KIND, (EXPRESS IMPLIED, OR STATUTORY) TO CLIENT OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; 3) EFFORT TO ACHEIVE PURPOSE; 4) QUALITY; OR 5) ACCURACY. NO EMPLOYEE, CONSULTANT, AGENT OR OTHER REPRESENTATIVE OF ConvIOT HAS AUTHORITY TO BIND ConvIOT TO ANY ORAL REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES, THE PRODUCTS, OR THE SOFTWARE. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN IN RELIANCE ON THE PLATFORM OR ANY INFORMATION THEREIN, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE INFORMATION. ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY, AND OTHER LEGAL RIGHTS MAY BE GRANTED IN SUCH JURISDICTIONS.
- Limitation of Liability. IN NO EVENT SHALL ConvIOT BE LIABLE TO YOU FOR ANY REASON FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY YOU TO ConvIOT FOR SERVICES AND/OR PLATFORM PROVIDED HEREUNDER IN THE LAST (12) MONTHS. YOU AGREE THAT ANY EFFORTS BY ConvIOT TO MODIFY THE SERVICES OR PLATFORM SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY ConvIOT WARRANTIES SHALL NOT BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR OTHER ECONOMIC LOSS ARISING UNDER THIS AGREEMENT OR FOR DESTRUCTION OF OR INJURY (INCLUDING DEATH) TO PROPERTY OR PERSONS CAUSED BY OR ARISING AS A RESULT OF OR IN CONNECTION WITH THE SERVICES OR PLATFORM. THIS LIMITATION OF LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE AND INDEPENDENT OF ANY FAILURE OF ESSENTIAL PURPOSE OF THE REMEDIES PROVIDED HEREUNDER, AND SHALL APPLY WHETHER A PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO: (i) ANY BREACH BY A PARTY OF CONFIDENTIALITY, AND/OR NON-DISCLOSURE PROVISIONS HEREUNDER, (ii) INTENTIONAL MISCONDUCT, (iii) GROSS NEGLIGENCE; AND (iv) ANY SECTION IN THIS AGREEMENT THAT EXPRESSLY STATES THAT LIMTATIONS ON LIABILITY DO NOT APPLY.
- Third Party Liability. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE ConvIOT SHALL NOT BE LIABLE FOR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING IS BORNE SOLELY BY YOU. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, AND OTHER LEGAL RIGHTS MAY BE GRANTED IN SUCH JURISDICTIONS.
- Limit on Claims. No action, regardless of form, whether in court or through arbitration, arising out of any transaction under this Agreement, may be brought by You more than one year after You have knowledge of the occurrence which gives rise to the cause of such action.
12. Miscellaneous Provisions.
- Survival. All sections that may be reasonably interpreted to or are intended to survive this Agreement will survive this Agreement.
- Governing Law. This Agreement shall be governed by the laws of the State of Kansas in the United States without regard to conflicts of laws principles. All parties to and disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in or serving Johnson County, Kansas.
- Entire Agreement. This Agreement with the MSA is the complete agreement between ConvIOT and You and supersedes all proposals, representations or prior agreements, oral or written, and any other communications between ConvIOT and You only as it relates to the subject matter of this Agreement.
- Severability. You agree that the terms and conditions stated in this Agreement are severable. If any paragraph, provision, or clause in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction, the remainder of this Agreement shall be valid and enforceable.
- Assignment and Transfer. ConvIOT may assign, transfer, or sell this Agreement, in whole or in part, at any time without notice to You. You may not assign this Agreement or any part of it or any rights to use the Platform, in whole or in part, either temporarily or permanently, to any other party.
- Attorney’s Fees. If any action in law or in equity or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
13. Force Majeure. Notwithstanding any other provision of this Agreement, each party will be excused from the performance of its obligations under this Agreement, except for any payment obligations accruing prior to the event, for any period to the extent that it is prevented from performing, in whole or in part, as a result of delays caused by the other party or any act of God, natural disaster, war, civil disturbance, court order or other events beyond the reasonable control of a party, except where such delay was caused by the act or omission of the non-performing party. Such non-performance will not be a default or a ground for termination as long as reasonable means are taken by the non-performing party to expeditiously remedy the problem causing such non-performance.
14. Amendment. ConvIOT reserves the right to modify or amend this agreement on a continual basis without notice for each update. Your continued use of the Platform following the posting of changes to the Agreement means You accept those changes.
15. Independent Contractor. ConvIOT is an independent contractor and no partnership, joint venture, or agency relationship exists between ConvIOT and You.
16. United States Only. All materials on this Platform are provided solely for the purpose of promoting our operations and services in the United States and its territories. ConvIOT makes no representation that the materials on the Platform are appropriate or available for use in other locations. If despite these conditions, You use the Platform from outside the United States, You are solely responsible for compliance with any applicable local laws.
17. Export. The Platform may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from ConvIOT, or any products utilizing such data, in violation of the United States export laws or regulations.
18. Notices. Any notices to ConvIOT must be sent to: ConvIOT IoT Inc.,7560 West 135th Street, Overland Park, KS 66223, via first class or air mail or overnight courier, and are deemed given upon receipt.
19. Wavier. A waiver of default is not a waiver of any subsequent default.
BY USING THIS PLATFORM, YOU ACCEPT AND AGREE TO THE ABOVE TERMS AND CONDITIONS