Terms Of Service Agreement

1.1. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures as may be necessary to allow Customer or any Authorized Users to access the ControlRooms Solution.

1.2. “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the ControlRooms Solution pursuant to Customer’s rights under this Agreement.

1.3. “ControlRooms Solution” means the ControlRooms software-as-a-service critical infrastructure monitoring application further described in any Order Form and all incorporated software that allows Authorized Users to access certain features and functions through a web interface.

1.4. “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.

1.5. “Documentation” means the technical materials provided by ControlRooms to the Customer in hard copy or electronic form describing the use and operation of the ControlRooms Solution.

1.6. “Effective Date” means the date both parties sign the Order Form that references this Agreement or the Date the Customer starts using the Service.

1.7. “Error” means a reproducible failure of the ControlRooms Solution to substantially conform to the Documentation.

1.8. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

1.9. “Output” means results, reports, materials and documentation made available by ControlRooms to Customer as part of the Services.

1.10. “Order Form”refers to this Agreement and describes the ControlRooms business terms and services subscription.

1.11. “Professional Services” means professional services provided by ControlRooms to Customer as described in any Order Form (as may be further elaborated in any SOW).

1.12. “Services” means any services provided by ControlRooms to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the ControlRooms Solution [and Professional Services].

3.1. License Grant. Subject to the terms and conditions of this Agreement, ControlRooms grants to Customer a non-exclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the ControlRooms Solution and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the ControlRooms Solution. Customer may permit any Authorized Users to access and use the features and functions of the ControlRooms Solution as contemplated by this Agreement.mer.

3.2. Restrictions. Customer will not, and will not permit any Authorized User or other party to:

(a) allow any third party to access the ControlRooms Solution, Output or Documentation, except as expressly allowed herein;

(b) modify, adapt, alter or translate the ControlRooms Solution, Output or Documentation;

(c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the ControlRooms Solution or Documentation for the benefit of any unauthorized third party;

(d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the ControlRooms Solution, except as permitted by law;

(e) interfere in any manner with the operation of the ControlRooms Solution or the hardware and network used to operate the ControlRooms Solution;

(f) modify, copy, or make derivative works based on any part of the ControlRooms Solution or Documentation;

(g) access or use the ControlRooms Solution to build a similar or competitive product or service;

(h) attempt to access the ControlRooms Solution through any unapproved interface; or

(i) otherwise use the ControlRooms Solution, Output, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the ControlRooms Solution will not be used, and is not licensed for use, to enable any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of ControlRooms or its licensors on the Output or any copies thereof.

3.3. Ownership. The ControlRooms Solution, Output and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing are the exclusive property of ControlRooms and its suppliers. All rights in and to the ControlRooms Solution and Documentation not expressly granted to Customer in this Agreement are reserved by ControlRooms and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the ControlRooms Solution, Documentation, or any part thereof.

3.4. License to Output. Subject to the terms and conditions of this Agreement, ControlRooms grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)), non-sublicensable license to use the Output solely for Customer’s internal business purposes.

3.5. Open Source Software. Certain items of software may be provided to Customer with the ControlRooms Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 (Ownership) or 11 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under or grants Customer rights that supersede the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, ControlRooms makes such Open Source Software, and ControlRooms’ modifications to that Open Source Software, available by written request at the notice address specified below.

3.6. Feedback. Customer hereby grants to ControlRooms a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users relating to the Services. ControlRooms will not identify Customer as the source of any such feedback without Customer’s express prior written consent.

5.1. License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. The customer will obtain all third-party licenses, consents and permissions needed for ControlRooms to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for ControlRooms to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement.

Customer grants ControlRooms a non-exclusive, worldwide, royalty-free and fully-paid license during the Term

(a) to use the Customer Content as necessary for purposes of providing and improving the Services,

(b) to use the Customer trademarks, service marks, and logos as required to provide the Services, and

(c) use the Customer Content in an aggregated and anonymized form to:

(i) improve the Services and ControlRooms’ related products and services; (ii) provide analytics and benchmarking services; and

(iii) generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Content, and all worldwide Intellectual Property Rights in it, is the Customer's exclusive property. All rights in and to the Customer Content not expressly granted to ControlRooms in this Agreement are reserved by Customer.

5.2. Customer Warranty. Customer represents and warrants that any Customer Content will not

(a) infringe any copyright, trademark, or patent;

(b) misappropriate any trade secret;

(c) be deceptive, defamatory, obscene, pornographic or unlawful;

(d) contain any viruses, worms or other malicious computer programming codes intended to damage ControlRooms’ system or data; and

(e) otherwise violate the rights of a third party. ControlRooms is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at the Customer’s sole cost and expense before submitting such Customer Content to the ControlRooms Solution. Customer agrees that any use of the ControlRooms Solution contrary to or in violation of the representations and warranties of Customer in this Section 5.2 (Customer Warranty) constitutes unauthorized and improper use of the ControlRooms Solution.

5.3. Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required to access the ControlRooms Solution. Customer is encouraged to make its own back-ups of the Customer Content. Customer will be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. Before any use of the ControlRooms Solution, Customer shall ensure its equipment and systems comply with the minimum system and equipment requirements set forth in the Documentation.

5.4. Customer Responsibility for Operational Decisions. Customer is solely responsible for any decisions or actions based on the Output or the ControlRooms Solution. Customer acknowledges that the ControlRooms Solution is not a safety protocol system or equipment control system, and Customer agrees it will not rely on the Output or ControlRooms Solution for any operational decisions related to Customer’s equipment, facilities, or business. Under no circumstances can the ControlRooms Solution replace professional judgment rendered by Customer and its employees and/or contractors.

10.1. Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party based on the nature of the information and circumstances of disclosure. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of ControlRooms.

10.2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to ControlRooms).

In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.

10.3. Exceptions. The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information.

In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

11.1. By ControlRooms. ControlRooms will defend at its expense any suit brought against Customer and will pay any settlement ControlRooms makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the ControlRooms Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the ControlRooms Solution becomes, or in ControlRooms’ opinion is likely to become, the subject of a claim of infringement, ControlRooms may, at ControlRooms’ option:

(a) procure for Customer the right to continue using the ControlRooms Solution;

(b) replace the ControlRooms Solution with non-infringing software or services which do not materially impair the functionality of the ControlRooms Solution;

(c) modify the ControlRooms Solution so that it becomes non-infringing, or

(d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the ControlRooms Solution and Documentation. Notwithstanding the foregoing, ControlRooms will have no obligation under this section or otherwise with respect to any infringement claim based upon

(i) any use of the ControlRooms Solution not in accordance with this Agreement or as specified in the Documentation;

(ii) any use of the ControlRooms Solution in combination with other products, equipment, software or data not supplied by ControlRooms; or

(iii) any modification of the ControlRooms Solution by any person other than ControlRooms or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of ControlRooms, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.

11.2. By Customer. Customer will defend at its expense any suit brought against ControlRooms and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to

(a) an Exclusion, or

(b) Customer’s breach or alleged breach of Sections 5.2 (Customer Warranty). This section states the sole and exclusive remedy of ControlRooms and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.

11.3. Procedure. The indemnifying party’s obligations as set forth aboveare expressly conditioned upon each of the foregoing:

(a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit;

(b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and

(c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

13.1. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Santa Clara County, California, for any lawsuit filed there against Customer by ControlRooms arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

13.2. Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from ControlRooms or any products utilizing such data in violation of the United States export laws or regulations.

13.3. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

13.4. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or such provision on any other occasion.

13.5. No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.

13.6. Compliance with Law. Customer shall comply with all international and domestic laws, ordinances, regulations, and statutes that apply to its purchase and use of the Services, Output and Documentation.ns.

13.7. Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

13.8. Independent Contractors. Customer’s relationship with ControlRooms is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of ControlRooms.

13.9. Notices. All notices required or permitted under this agreement must be delivered in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.

13.10. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

13.11. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the ControlRooms.

Terms Of Service Agreement

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