Last updated: February 21, 2018
The Internet of Team LLC (“IofTeam”) offers a self-service software platform (“DigiMEP”) that allows users to survey HVAC equipment in the field, take photos of work performed, and record readings. User wishes to access DigiMEP, and IofTeam is willing to provide to User, access to use the DigiMEP Platform on the terms and conditions described in this Agreement.
This agreement is entered into between The Internet of Team LLC (“IofTeam”) and the Entity Agreeing to this Agreement (the “User”). This Agreement is effective as of the date User signs up for an account (the “Effective Date”). User and IofTeam may each be referred to herein as “Party” or collectively as the “Parties”
The following terms, when used in this Agreement shall have the following meanings:
“DigiMEP” means The Internet of Team’s self-service platform (in object form only), which IofTeam makes available to User as a download-and-install application and/or via an Internet Browser.
“Confidential Information“ means, by way of example, but not limited to, any information, data, know-how, techniques, applications, routines, specifications, inventions, methods, algorithms, specifications, software, or renderings whether tangible or intangible, and including any derivatives thereof, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement or any other confidentiality agreement by the Receiving Party; or (d) is developed through independent research by the Receiving Party.
“User Content” means any content created, developed, submitted or otherwise made available by or on behalf of User using the DigiMEP Platform.
2. ACCESS TO DIGIMEP PLATFORM; LICENSES.
2.1 Access to DigiMEP Platform. Subject to the terms and conditions of this Agreement, The Internet of Team hereby grants User a non-exclusive, revocable right to access and use the DigiMEP Platform for its internal business purposes. User shall not license, sublicense, sell, resell, lease, transfer, distribute, time share, or otherwise commercially exploit or make the DigiMEP Platform available to any third party or reproduce, redistribute, perform, display, reverse-engineer, decompile, translate or create derivative works of the DigiMEP Platform in any manner. All ownership rights, title, and interest in and to the DigiMEP Platform, as such may be modified, upgraded, and/or enhanced from time to time (together with all intellectual property rights therein) will remain with and belong exclusively to The Internet of Team. The Internet of Team reserves all right, title and interest in and to the DigiMEP Platform not expressly granted to User herein.
2.2 User Responsibilities. User:
(a) shall agree to abide by all laws, rules, and regulations that are applicable to it and its use of the DigiMEP Platform and shall use the DigiMEP Platform solely for its legitimate business purposes as contemplated by this Agreement and shall not interfere with or disrupt the integrity or performance of the DigiMEP Platform or the data contained therein or attempt to gain unauthorized access to the DigiMEP Platform or its related systems or networks.
(b) Shall not include in any User Content any content that is obscene, defamatory, illegal, deceptive, gambling-related, or hateful, as decided by IofTeam in its discretion.
The Internet of Team reserves the right to discontinue any use of the DigiMEP Platform (or any components thereof) by User for any breach of this Section 2.2 or that is subject to a good faith complaint, until the complaint is resolved to IofTeam’s reasonable satisfaction. The Internet of Team reserves the right to review all User Content and to reject or suppress certain User Content, or request modifications to such User Content.
2.3 Data. As between the parties, User shall own the data it submits via the DigiMEP Platform and the data generated therefrom that is provided by IofTeam to User (the “Data”), except that IofTeam may: (i) copy, use, modify, distribute, display and disclose Data solely to the extent necessary to provide the Platform to User pursuant to the terms and conditions of this Agreement; (ii) copy, modify and use Data in connection with its business operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions, and archival purposes; and (iii) copy, modify and use Data on an aggregate and de-identified basis, stripped of any personally identifiable information, for marketing purposes and internal business purposes and analytics, provided that such use or disclosure does not identify User or User’s products, services, segments, attributes, or search criteria, or consist of data solely attributable to User.
2.4 Feedback. User may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to IofTeam with respect to the DigiMEP Platform. IofTeam shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. User hereby grants IofTeam a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
3.1 Payment. If payment of any applicable fees is not made after it becomes due and payable, User access to the DigiMEP Platform will be suspended.
4. OWNERSHIP AND CONFIDENTIALITY
4.1 The Internet of Team Ownership Rights. User hereby grants The Internet of Team a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to copy, distribute, transmit, display, perform, and create derivative works of the User Content solely to perform its obligations hereunder, including without limitation, to provide User with the DigiMEP Platform in accordance with this Agreement.
All rights, title and interests, including, but not limited to, all worldwide patent, copyright, trademark, trade secret and any other rights in and to the DigiMEP Platform and any other IofTeam product or service are retained by The Internet of Team. User agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of The Internet of Team or its licensors in and to such intellectual property rights.
4.3 Nondisclosure and Use Restrictions. Each Party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a Party, and each Party agrees that it shall use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder. Nothing in this Section 4.3 is intended to restrict or otherwise limit the exercise by a Party of the rights and licenses granted to it under this Agreement; provided that such Party uses reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information. Notwithstanding any provision of this Agreement, either Party may disclose this Agreement, in whole or in part (a) to its employees, officers, directors, attorneys, auditors, financial advisors and/or subcontractors who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as reasonably deemed by a Party to be required by law (in which case each Party shall provide the other with prior written notification thereof, shall provide such Party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 4.3, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each receiving Party agrees to promptly return to disclosing Party or destroy all Confidential Information of the disclosing Party that is in the possession of receiving Party and to certify the return or destruction of all such Confidential Information and embodiments.
5. REPRESENTATIONS, WARRANTIES AND EXCLUSIONS
5.1 Representations and Warranties of Each Party. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when accepted by User.
5.2 Representations and Warranties of User. User further represents and warrants that User has the full legal authority to grant the rights in and to the User Content granted in this Agreement.
5.3 Exclusions. Except as expressly set forth herein, the DigiMEP platform is provided on an “as-is” basis and The Internet of Team disclaims any and all warranties, including, but not limited to implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose. User acknowledges that The Internet of Team does not warrant that the DigiMEP Platform will be provided in an uninterrupted or error free fashion at all times.
6.1 Indemnification by User. User shall indemnify, defend and hold harmless The Internet of Team against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) directly or indirectly brought against IofTeam by any third party arising from (a) the use of the DigiMEP Platform in violation of the terms of this Agreement, or (b) the exercise of any rights granted by User to IofTeam in or to the User Content in accordance with this Agreement; provided that: (i) IofTeam shall promptly notify User of such claim, (ii) User shall have the sole and exclusive authority to defend and/or settle any such claim and (iii) IofTeam reasonably cooperates with User in connection therewith.
7. LIMITATION OF LIABILITY
7.1 Limitations on Remedy. Under no circumstances and under no legal theory, whether in tort, contract, or otherwise, shall The Internet of Team be liable to the User for any indirect, special, incidental, consequential, or punitive damages of any character, including, without limitation, damages for loss of goodwill, lost profits, lost sales or business, work stoppage, computer failure or malfunction, lost data, or for any and all other damages or losses, even if a representative of a Party has been advised, knew, or should have known of the possibility of such damages. IofTeam shall not be liable for any direct damages, costs or liabilities in excess of the amounts paid or properly payable by User during the twelve months preceding the incident or claim or, if no fees apply, one hundred ($100) U.S. Dollars. Monetary damages, as limited by this section 7, will be User’s sole and exclusive alternative remedy (at law or in equity) in the event that any exclusive remedy hereunder is found to fail its essential purpose. The provisions of this section 7 allocate the risks under this Agreement between the Parties, and the Parties have relied on the limitations set forth herein in determining whether to enter into this Agreement.
8. APPLE-ENABLED SOFTWARE APPLICATIONS
The Internet of Team offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for User in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
- IofTeam and User acknowledge that this Agreement is concluded between IofTeam and User only, and not with Apple, and that as between IofTeam and Apple, IofTeam, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
• User may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
• User’s license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that User owns or controls, as permitted by the Usage Rules set forth in the App Store Terms of Service.
• Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
• Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, User may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to User, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be IofTeam’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
• IofTeam and User acknowledge that IofTeam, not Apple, is responsible for addressing any claims of User or any third party relating to the Apple-Enabled Software or User’s possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between IofTeam and Apple, IofTeam, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
• User represents and warrants that (i) User is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) User is not listed on any U.S. Government list of prohibited or restricted parties.
Any questions, complaints or claims with respect to the Apple-Enabled Software should be directed to The Internet of Team as follows:
9. TERM, TERMINATION
9.1 Term. User has the right to terminate its account and these Terms at any time by written notification to DigiMEP@iofteam.com. IofTeam also reserves the right to terminate User’s account (or the access privileges of any User) and these Terms at any time for any reason, or no reason, without prior notice or liability. Upon termination of any User account, IofTeam will have no obligation to maintain or provide User’s Data, and may delete or destroy all copies of User’s Data in its possession or control, in a reasonably expedient way, unless legally prohibited. However, all accrued rights to payment and the terms of Sections 4.1, 2.3, 2.4, and 4 through 10 shall survive termination of these Terms. In the event of account deletion for any reason, content that User submitted may no longer be available. IofTeam shall not be responsible for the loss of such content.
9.2 Obligations on Termination. Upon termination or expiration of the Term or other termination of this Agreement all rights granted hereunder and all obligations of IofTeam to provide the DigiMEP Platform shall immediately terminate. Termination of this Agreement or expiration of the Term shall not relieve User from paying all fees accruing prior to termination.
10. Arbitrations and Small Claims Proceedings
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS
Most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing the IofTeam Customer Service Department at email@example.com.
(i) EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL.
(ii) IF A DISPUTE IS ARBITRATED, YOU AGREE TO GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN ANY CLASS CLAIM YOU MAY HAVE AGAINST US IN STATE OR FEDERAL COURT INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.
(iii) DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.**
Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. The arbitrator shall apply governing substantive law and the applicable statute of limitations. The arbitration hearing shall be conducted at a location reasonably accessible to you and in accordance with the rules of the chosen arbitration organization. We will pay the filing, administration, service, case management, arbitrator, and hearing fees that we are required to pay as set forth in the Consumer Arbitration Rules for the American Arbitration Association or as set forth in the applicable rules of the chosen organization, unless the law requires us to pay more. The amount we pay may be reimbursed in whole or in part by decision of the arbitrator if the arbitrator finds that any of your claims is frivolous under applicable law. Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law. If the chosen arbitration organization's rules conflict with this Arbitration Provision, then the provisions of this Arbitration Provision shall control. Any arbitration under this Arbitration Provision shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and not by any state law concerning arbitration. Any award by the arbitrator shall be in writing and will be final and binding on all parties, subject to any limited right to appeal under the Federal Arbitration Act.
NOTWITHSTANDING THE ARBITRATION PROVISION IN THIS SECTION, USER AND IOFTEAM ALSO RETAIN THE RIGHT TO SEEK REMEDIES IN SMALL CLAIMS COURT FOR DISPUTES OR CLAIMS WITHIN THAT COURT'S JURISDICTION, UNLESS SUCH ACTION IS TRANSFERRED, REMOVED OR APPEALED TO A DIFFERENT COURT IN WHICH CASE THE ARBITRATION PROVISIONS HEREIN SHALL APPLY.
YOUR USE OF THE PLATFORM SPECIFICALLY CONSTITUTES CONSENT TO THE PROVISIONS OF SECTION 10.
11.1 Publicity. Neither Party will make any separate public announcement regarding this Agreement or any of the contents contained herein without the prior written consent of the other Party, which will not be unreasonably withheld. Notwithstanding the foregoing, during the Term, IofTeam may (i) issue mutually agreed upon press releases announcing and/or describing the relationship between IofTeam and User; provided that IofTeam gives User a reasonable opportunity to review and comment on the proposed disclosure prior to its public release, (ii) use User’s name and marks in any general listing of customers of IofTeam in marketing and promotional materials, including on the IofTeam website, (iii) use User’s name in connection with proposals to third parties, and (iv) otherwise refer to User in print or electronic form for marketing, reference and other business purposes.
11.2 No Assignment. User may not assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of IofTeam, which consent may be withheld at its sole discretion. Notwithstanding the foregoing, User may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with the User or that acquires all or substantially all of the assets and business of User to which this Agreement relates by merger or purchase, provided that such person or entity assumes in writing all of the terms and conditions of this Agreement. Any attempt by User to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be null and void.
11.3 Waiver. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
11.4 Relationship. Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
11.5 Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date. If any provision or part of this Agreement will, to any extent, be or become invalid, illegal or unenforceable, the remainder of this Agreement will continue in effect, and every other provision of this Agreement will remain valid and enforceable to the full extent permitted by applicable law. In such event, the invalid or unenforceable provision shall be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.
11.6 Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of Texas without regard to its rules of conflict of laws.
11.7 Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the Cover Page or such other addresses designated pursuant to this Section
11.8 Entire Agreement. This Agreement constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both Parties.