The “Services” include your access to and usage of one or more of our user interfaces (an “Interface”), which (1) are designed to, among other things, allow you to monitor certain conditions captured by sensor and related hardware (“Hardware”) installed on relevant elevators; and (2) include our standard analytic and notification services.
2.1 2.1 Direct. If you are accessing and using the Services pursuant to an order that you (including the entity on whose behalf you are using the Services) placed directly with us, then that order refers to separate terms and conditions that govern certain aspects of your access to and use of the Services (“Order Terms”), such as the number of authorized users that can access or use the Services (“Users”) and the period for which you are entitled to access and use such Services (“Subscription Term”). The Order Terms control in the event of a conflict with this Agreement.
2.2 Via Provider. If you did not place an order directly with us, you will be using the Services and Hardware through a separate relationship or agreement that you have with an elevator-servicing or facility maintenance company (or similar entity) that ordered Hardware and our Services on your behalf (a “Provider”). You will pay the Provider for such use as agreed between you and the Provider – you will not be paying us. Your access and usage details, such as the specific Services that you are entitled to use, the number of Users you are entitled to, and your Subscription Term, will be as set forth in the order document that your Provider has placed with us. Your Provider is responsible for the accuracy of any such order. Providers are not authorized to modify any terms or conditions of this Agreement or make any promises, commitments, representations, warranties, conditions, or guarantees on our behalf, and we are not bound by any obligations to you except for those expressly set forth in this Agreement. If you believe you are entitled to a refund for any fees you paid to Provider for the Services or Hardware, you must contact the Provider, who is solely responsible for determining and/or providing any refund to you.
We grant you a limited, non-exclusive, non-transferable, and non-sublicensable license to access and use the Services solely: (1) in accordance with these Terms; (2) subject to timely payment of all fees owed to us by you or your Provider (as applicable); (3) during the applicable Subscription Term; and (4) within the United States. In order to use the Services, you are responsible at your own cost to obtain Internet access and any and all software and hardware that meet our general security and minimum system and performance requirements necessary for such use. You must not share your password or any other access credentials with others.
4.1 Installations; Removal. If you receive access to the Services through a Provider, that Provider may need to install Hardware on your elevators. By using the Services, you represent to us that you have consented to such installation. We are not responsible for installing or removing any Hardware. The installation (and eventual removal) does not require any invasive methods (e.g., drilling, cutting, etc.) nor any modifications to the elevator system itself; if you or your Provider elect to use any such invasive methods or make any such modifications, you or your Provider are solely responsible for any resulting damage and required repairs. The Hardware requires power from the electricity grid through a standard power outlet/socket to operate, the availability of which is to be provided for and paid by you or your Provider.
4.2 Title. In certain cases your Provider may allow you to use Hardware owned by us (“Service Hardware”). Title to and ownership of any such Service Hardware will at all times remain with us and will not transfer to you, and possession of the Service Hardware is at all times subject and subordinate to our rights. You agree not to alter or destroy any Service Hardware, or any label thereon, or affix or install any accessory, addition, upgrade, sensor, equipment, or device on or to the Service Hardware. Removal of Service Hardware is the responsibility of you or the Provider.
The Interfaces may display alerts (“Alerts”) if the Hardware senses conditions outside of pre-set operating parameters, which may relate to elevator cabin offset, acceleration, temperature, and other factors. In no event are we responsible for taking any action based on an Alert, including any preventative or remediation actions. You will see Alerts only if you log in to the applicable Interface; Alerts are not sent via text message, push notification, phone call, or any other means. THE HARDWARE AND SERVICES ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM, NOR SHOULD THEY BE USED FOR ANY LIFE SAFETY OR CRITICAL PURPOSES OR AS A SUBSTITUTE FOR REGULAR OR REQUIRED MAINTENANCE OR INSPECTIONS. THE HARDWARE IS NOT EQUIPPED WITH AN AUDITORY OR VISUAL ALERT TO NOTIFY ANYONE IF ANY CONDITIONS OR HAZARDS ARE DETECTED. ANY ALERTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR ANY THIRD-PARTY MONITORED EMERGENCY-NOTIFICATION SYSTEM. NO GUARANTEE IS MADE THAT THE SERVICES OR HARDWARE WILL IDENTIFY, ALERT, OR WARN AGAINST ALL POTENTIAL ISSUES OR HAZARDS, AND THE SERVICES AND HARDWARE WILL NOT, AND CANNOT, PREVENT SUCH ISSUES OR HAZARDS. Under no circumstances will we dispatch services (e.g., a services technician) to a location based on an Alert. The Services and Hardware will not shut off or control elevators in any way.
Except as otherwise expressly set forth in this Agreement, you shall not: (1) sell, rent, lease, license, make available, permit access to, or distribute the Hardware or Services to any third party; (2) use the Services in a timeshare or service bureau arrangement; (3) copy, modify, disassemble, reverse engineer, decompile, create derivative works of, or attempt to derive the object or source code of, the Hardware or Services; (4) use the Hardware or Services in conjunction with or to develop any competing service or product; (5) circumvent, disable, or otherwise interfere with security-related features of the Hardware or Services; (6) interfere with the Services or take any action that imposes or may impose a disproportionately large load on our infrastructure; (7) remove, deface, obscure, or alter any copyright notices, trademarks, or other proprietary rights (including logos) affixed to or provided as part of the Hardware or Services; (8) upload or transmit any Data to or via the Hardware or Services unless all necessary rights and consents, including from data subjects, have been obtained; (9) use the connectivity and communication features embedded in the Hardware or Services to send communications or messages that are unlawful, inappropriate, or in violation of a third party’s intellectual property rights; and/or (10) otherwise use the Hardware or Services in an unlawful manner or in breach of this Agreement.
If you are accessing and using the Services pursuant to an order that you (including the entity on whose behalf you are using the Services) placed directly with us, then we will provide you with the support set forth in such order. If you receive access to the Services through a Provider, your Provider is responsible for providing you support related to the Services. If you require support (technical or otherwise) in connection with the Services or need to report any malfunction or failure of the Services or Hardware, contact the Provider.
8.1 Generally. To provide the Services we will have access to (1) data collected by or from the Hardware (“Sensor Data”); (2) account data collected as part of registration processes or otherwise (“Account Data”); and/or (3) data that may, for example, identify behaviors or provide context or additional information about you, which are collected by the Hardware, an Interface(s), the Sensor Data, and/or the Account Data (collectively, “Metadata”). Account Data and Metadata may contain personally identifiable information (“PII”) including name, address, email address, and/or phone number. “Data” includes Sensor Data, Account Data, and Metadata. Data will be considered “Anonymized” if it has had all personally identifying information about you removed such that any recipient thereof is incapable of identifying you.
8.3 Use of Data. We may use Data in any form in connection with the Services, or as otherwise required by applicable law (e.g., to respond to legal process). We also may share Data with third party service providers who need to access and use such Data in connection with the provision of Services, or as otherwise required by applicable law. In addition, you grant us a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licenseable, and transferable license to use, store, or otherwise process the Data to perform analytics and derive, compile or otherwise create aggregated or Anonymized data from such Data (collectively “Derived Data”). All right, title, and interest in and to Derived Data is and will be owned solely and exclusively by us. For the avoidance of doubt and without limitation of the foregoing, we may use the Derived Data for any and all purposes we deem appropriate, including but not limited to, sharing it with third parties.
All right, title, and interest in and to (1) the Services (including for the avoidance of doubt, Interfaces, and any and all software embedded in any of the foregoing; (2) any intellectual property in the foregoing and in any Hardware, as well as any intellectual property, ideas, know-how, or techniques developed, conceived, or reduced to practice by us (including Hardware and software developments, packages, or combinations; analyses; marketing materials; methodologies, including without limitation those related to alerting or notification; features; and installation methods); (3) any user or instructional materials provided by us; and (4) any modifications, enhancements, and improvements to any of the foregoing, are and at all times shall remain the sole and exclusive property of us or our licensors. Except as expressly set forth in this Agreement, no rights of any kind whatsoever (whether implied or otherwise) in the Services or Hardware are granted to you. This Agreement does not grant any rights of ownership. Nothing in this Agreement shall be construed to restrict our rights in our intellectual property or to distribute our intellectual property, including Services, to other commercial and non-commercial entities.
This Agreement is effective on the Effective Date and expires on the earlier of the date of expiration or termination of your Subscription Term or the earlier termination of the Services pursuant to this Agreement. We will terminate your access to the Services upon the expiration of your Subscription Term. We also may terminate or suspend your access to the Services without liability if you breach this Agreement, if your Provider breaches the terms of its agreement with us (including if we do not receive payment from the Provider, even if you paid the Provider), or if we reasonably believe that continuing the Services could result in business, reputational, or legal liability for us or our affiliates or other end users. We also may suspend the Services upon the occurrence of a Force Majeure Event, which are events outside of our reasonable control, including acts of God; earthquakes; wars; epidemics, pandemics; terrorism; communication failures; power failures; strikes or shortages of materials; inadequate cellular coverage in an installed location; any computer, communications, internet service, cloud, or hosting facility failures or delays involving hardware, software, power or other systems; and denial of service attacks. We will have no liability for any such termination or suspension. Upon termination or suspension, you must immediately cease use of the Services. Sections 2.2, 4 through 6, and 8 through 12 of this Agreement will survive any expiration or termination.
11.1 Limitations. We aim for the Service to be highly reliable and available. However, the Services, including data transmission, monitoring, and alerting, and access thereto may be interrupted or malfunction due to factors outside of our control, including improper Hardware installation; hindrance or obstruction of Hardware; human error or negligence; insufficient coverage; power outages; termination or interruption of internet, wi-fi or cellular service; communications networks; environmental conditions and interference, among others. The Services rely on or inter-operate with third-party products and services; these third-party products and services may not operate in a 100% reliable manner and are beyond our control, but their operation may directly impact the use and reliability of the Services. We cannot and do not guarantee that the Services or Alerts will be 100% available or displayed at any given time or at all. You acknowledge these limitations and agree that we are not responsible or liable for any damages or losses related to the failure or delay of the Services, including any decision by you as to whether, when, or what extent to service a particular elevator.
11.2 Disclaimers. THE SERVICES AND HARDWARE ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS AND WE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, GUARANTEES, OR CONDITIONS OF ANY KIND, WHETHER STATUTORY, ORAL, WRITTEN, EXPRESS, OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTY, CONDITION, OR GUARANTEE THAT THE SERVICES OR HARDWARE WILL MEET YOUR REQUIREMENTS, WILL PROVIDE AN ALERT FOR ALL POTENTIAL ISSUES OR HAZARDS, OR BE ON AN UNINTERUPTED, SECURE, ERROR-FREE, AND/OR ACCURATE BASIS. NO ADVICE OR INFORMATION PROVIDED WILL CREATE ANY ADDITIONAL WARRANTY, NOR SHALL IT BE CONSIDERED OR USED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE OR INSPECTION. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY FAILURE OF THE SERVICES OR HARDWARE, INCLUDING FAILURES TO DETECT ANY CONDITIONS OR PROVIDE AN ALERT OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ANY LOSS OF PROFITS OR REVENUE; LOSS OF USE; LOSS OF OPPORTUNITY; LOSS OF GOOD WILL; COST OF SUBSTITUTE FACILITIES, GOODS OR SERVICES; COST OF CAPITAL; GOVERNMENTAL AND REGULATORY SANCTIONS; OR CLAIMS OF THIRD PARTIES FOR SUCH DAMAGES. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES, HARDWARE, AND THIS AGREEMENT EXCEED THE GREATER OF (1) THE AMOUNT ACTUALLY PAID BY YOU TO US (IF APPLICABLE) FOR SUCH SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM; OR (2) ONE HUNDRED DOLLARS ($100).
11.3 Liability. You are fully responsible for all liabilities and expenses of any type that may arise in connection with your access to and use of the Services and you shall indemnify, hold harmless, and (at our option) defend us and our affiliates and our officers, directors and employees (collectively, “Our Entities”) from and against all damages, costs, fees, and expenses (including reasonable attorney’s fees) relating to any claim, action, suit or other proceeding (collectively “Claims”) to the extent arising from your use of the Services and/or breach of these Terms.
12.1 Changes. We may make changes to the Services from time to time to reflect changes in technology, industry practices, and patterns of use; however, our changes to the Services will not result in a material reduction in the level of Services provided for the duration of the Subscription Term. The Services may be temporarily interrupted due to the implementation of such changes or for general maintenance or upgrades. We also may modify these Terms from time to time by posting the modified Terms on our website. Your access to or use of the Services after any such changes by us indicates your express acceptance of the Terms as amended.
12.2 Feedback. We will own and be entitled to use and commercialize, with no accounting to you, any and all suggestions, ideas, enhancement requests, feedback, and any related intellectual property rights thereof provided by you regarding the Services or Hardware (“Feedback”). By providing Feedback, you represent and warrant that you have the right to provide such Feedback in accordance with these Terms.
12.3 Construction. The headings of the Sections in these Terms are provided for convenience only and will not affect their construction or interpretation. All references to “Sections” refer to the corresponding Sections in these Terms. You represent that you have read and understood these Terms, and acknowledge and agree that any construction of these Terms shall not be made against the drafter. Unless expressly stated otherwise, in these Terms “including” (and with correlative meaning “include”) means “including without limitation”, and “or” is used in the inclusive sense of “and/or”.
12.4 Waiver. No failure or delay in exercising any right hereunder shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise of that right. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver.
12.5 Entire Agreement. Unless you are accessing and using the Services pursuant to an order that you (including the entity on whose behalf you are using the Services) placed directly with us, these Terms are the entire agreement between you and us relating the Services.
12.6 Independent Contractors. The parties are acting solely as independent contractors, and neither party is an agent or partner of the other.
12.7 No Third Party Beneficiaries. Nothing herein, whether express or implied, will confer upon any third party any legal or equitable right to enforce any provision of these Terms.
12.8 Miscellaneous. You may not assign these Terms without our written consent. These Terms constitute the entire agreement regarding the Services and supersedes all prior understandings or agreements, whether oral or written, concerning the subject matter hereof. If any provision of these Terms is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms will remain in full force and effect. These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to conflict of laws provisions.