Terms of Service
Last Updated: 9 September 2022
This Terms of Service Agreement (the “Agreement”), governs access to and use of the ControlRooms Solution and is entered into by and between you and Controlrooms.ai, Inc. (“ControlRooms”). By clicking on the “I Agree” button, completing the registration process, or otherwise accessing or using any portion of the ControlRooms Solution, you represent that (a) you have read, understand, and agree to be bound by the Agreement, (b) you are of legal age to form a binding contract with ControlRooms, and (c) you have the authority to enter into the Agreement personally or on behalf of the legal entity identified during the account registration process, and to bind that legal entity to the Agreement. If you do not agree to be bound by the Agreement, you may not access or use any portion of the ControlRooms Solution.
If you are using the ControlRooms Solution as an employee, contractor, or agent of a corporation, partnership or similar entity, then you must be authorized to sign for and bind the entity in order to accept the terms of this Agreement, and you represent and warrant that you have the authority to do so. The rights granted under this agreement are expressly conditioned upon acceptance by such authorized personnel. The term “Customer” refers to such individual or legal entity, as applicable. All other capitalized terms will have the meanings set forth in Section 10 (Definitions), or in the section where they are first used.
This Agreement is subject to change by ControlRooms in its sole discretion at any time. When changes are made, ControlRooms will make a copy of the updated Agreement available at this website and update the “Last Updated” date at the top of this Agreement. If ControlRooms makes any material changes to the Agreement, ControlRooms will provide notice of such material changes on this website and attempt to notify Customer by sending an email to the email address provided in Customer’s account registration. Any changes to the Agreement will be effective immediately for new users of the ControlRooms Solution and will be effective for existing Registered Users (defined in Section 1.1 (Registering an Account)) upon the earlier of (a) thirty (30) days after the “Last Updated” date at the top of this Agreement, or (b) Customer’s consent to and acceptance of the updated Agreement if ControlRooms provides a mechanism for Customer’s immediate acceptance in a specified manner (such as a click-through acceptance), which ControlRooms may require before further use of the ControlRooms Solution is permitted. If Customer does not agree to the updated Agreement, Customer must stop using the ControlRooms Solution and all features thereof upon the effective date of the updated Agreement. Otherwise, Customer’s continued use of any portion of the ControlRooms Solution after the effective date of the updated Agreement constitutes Customer’s acceptance of the updated Agreement. Customer agrees that ControlRooms’ continued provision of the ControlRooms Solution is adequate consideration for the changes in the updated Agreement.
ACCOUNT REGISTRATION
Registering an Account. In order to access certain features of the ControlRooms Solution, Customer may be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account with ControlRooms through the website (“Account”) or has a valid account on a third-party service (“Third-Party Service”) through which the user has connected to the ControlRooms Solution (each such account, a “Third-Party Service Account”).
Access Through a Third-Party Service. If Customer accesses the ControlRooms Solution through a Third-Party Service as part of the functionality of the ControlRooms Solution, Customer may link its Account with Third-Party Service Accounts by allowing ControlRooms to access Customer’s Third-Party Service Account, as is permitted under the applicable terms and conditions that govern such Third-Party Service Account. Customer represents that Customer is entitled to grant ControlRooms access to Customer’s Third-Party Service Account (including, but not limited to, for use for the purposes described herein) without breach by Customer of any of the terms and conditions that govern such Third-Party Service Account and without obligating ControlRooms to pay any fees or making ControlRooms subject to any usage limitations imposed by such Third-Party Service. By granting ControlRooms access to any Third-Party Service Accounts, Customer acknowledges that ControlRooms may access and store (if applicable) any Third-Party Service Content for purposes of registration for an Account. Depending on the Third-Party Service Accounts chosen by Customer and subject to the privacy settings in such Third-Party Service Accounts, personally identifiable information available within Customer’s Third-Party Service Accounts may be available on and through Customer’s Account on the ControlRooms Solution. In the event a Third-Party Service Account or associated service becomes unavailable, or ControlRooms’ access to such Third-Party Service Account is terminated by such Third-Party Service, then Third-Party Service Content will no longer be available on and through the ControlRooms Solution. Customer may disable the connection between Customer’s Account and Customer’s Third-Party Service Accounts at any time by accessing the “Settings” section of the ControlRooms Solution. CUSTOMER’S RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH CUSTOMER’S THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY CUSTOMER’S AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND CONTROLROOMS DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT CUSTOMER HAS SELECTED IN SUCH THIRD-PARTY ACCOUNTS. ControlRooms makes no effort to review any Third-Party Service Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and ControlRooms is not responsible for any Third-Party Service Content.
Registration Data. In registering an Account, Customer agrees to (a) provide true, accurate, current and complete information as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Customer agrees not to create an Account using a false identity or information, or on behalf of a third party. If Customer provides any information that is untrue, inaccurate, not current or incomplete, or ControlRooms has reasonable grounds to suspect that any information provided by Customer is untrue, inaccurate, not current or incomplete, ControlRooms has the right to suspend or terminate Customer’s Account and refuse any and all current or future use of the ControlRooms Solution (or any portion thereof). Customer is responsible for all activities that occur under its Account, including but not limited to activities by all Authorized Users. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the ControlRooms Solution, and notify ControlRooms promptly of any such unauthorized use known to Customer. Customer agrees that it shall not have more than one (1) Account at any given time, and Authorized Users may not share Account login information or passwords. Customer agrees not to create an Account or use the ControlRooms Solution if Customer has been previously removed by ControlRooms, or if Customer has been previously banned from the ControlRooms Solution.
Customer’s Account. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Customer shall have no ownership or other property interest in its Account, and Customer further acknowledges and agrees that all rights in and to its Account are and shall forever be owned by and inure to the benefit of ControlRooms. ControlRooms reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.
Necessary Equipment and Software. Customer is solely responsible for any fees, including Internet connection fees, that are incurred by Customer when accessing the ControlRooms Solution. Nothing herein will be construed to require ControlRooms to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access and use the ControlRooms Solution from the Internet.
INTELLECTUAL PROPERTY
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 9.6 (No Assignment)) license during the Term (as defined in Section 8.1 (Term)), solely for Customer’s internal business purposes, (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.
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 for Customer’s internal business purposes 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 2.1 (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.
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.
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 9.6 (No Assignment)), non-sublicensable license to use the Output solely for Customer’s internal business purposes.
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 2.1 (Ownership) or 7 (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.
Feedback. Customer hereby grants to ControlRooms a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the ControlRooms Solution any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the ControlRooms Solution. ControlRooms will not identify Customer as the source of any such feedback without Customer’s express prior written consent.
CUSTOMER CONTENT AND RESPONSIBILITIES
License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for ControlRooms to use the Customer Content to provide the ControlRooms Solution. 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 ControlRooms Solution, and (b) to use the Customer trademarks, service marks, and logos as required to provide the ControlRooms Solution. Customer grants ControlRooms a non-exclusive, worldwide, royalty-free and fully paid license during and after the Term to use the Customer Content in an aggregated and anonymized form to: (i) improve the ControlRooms Solution and ControlRooms’ related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the ControlRooms Solution, 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 exclusive property of Customer. All rights in and to the Customer Content not expressly granted to ControlRooms in this Agreement are reserved by Customer.
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 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 3.2 (Customer Warranty) constitutes unauthorized and improper use of the ControlRooms Solution.
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 in order to access the ControlRooms Solution. Customer is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. Prior to 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.
Customer Responsibility for Operational Decisions. Customer is solely responsible for any decisions made or actions taken 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.
Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, OUTPUT AND DOCUMENTATION ARE PROVIDED “AS IS,” AND CONTROLROOMS MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. CONTROLROOMS DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE CONTROLROOMS SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE. CONTROLROOMS MAKES NO WARRANTY OR GUARANTEES REGARDING RESULTS, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF ANY OUTPUT. WITHOUT LIMITING THE FOREGOING, CONTROLROOMS TAKES NO RESPONSIBILITY FOR AND DOES NOT GUARANTEE AGAINST CUSTOMER SYSTEM FAILURES, POWER SURGES, CUSTOMER SYSTEM OR EQUIPMENT DOWNTIME, THIRD-PARTY HARDWARE, CUSTOMER HARDWARE, ACCIDENTS, FIRE, EXPLOSIONS, EQUIPMENT FAILURE OR ANY OTHER PROBLEMS WITH CUSTOMER’S SYSTEMS AND EQUIPMENT AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF THE FOREGOING OR ANY SIMILAR SUCH EVENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE CONTROLROOMS SOLUTION, DOCUMENTATION, OUTPUT, OR CONTROLROOMS WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT.
LIMITATION OF LIABILITY
Types of Damages. EXCEPT FOR A PARTY’S BREACH OF ITS OBLIGATIONS SET FORTH IN SECTION 6 (Confidentiality) AND SECTION 7 (Indemnification), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
Amount of Damages. EXCEPT FOR A PARTY’S BREACH OF ITS OBLIGATIONS SET FORTH IN SECTION 6 (Confidentiality) AND SECTION 7 (Indemnification), THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE SUM OF FEES PAID AND PAYABLE BY CUSTOMER TO CONTROLROOMS DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL CONTROLROOMS’ SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO ANY AND ALL LOSSES AS THE RESULT OF ANY ONE OR MORE DATA SECURITY EVENT(S).
Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 4 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
CONFIDENTIALITY
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 ControlRooms Solution, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of ControlRooms.
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 have a 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.
Exceptions. The confidentiality obligations set forth in Section 6.2 (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 the 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.
INDEMNIFICATION
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 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.
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 3.2 (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.
Procedure. The indemnifying party’s obligations as set forth above are 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.
TERM AND TERMINATION
Term. This Agreement commences on the date when accepted by Customer (as described in the preamble above) and remain in full force and effect while Customer uses the ControlRooms Solution, unless terminated earlier in accordance with the Agreement (the “Term”).
Termination by Customer. Customer may terminate this Agreement upon written notice to ControlRooms by (a) notifying ControlRooms at any time using the contact information set forth in Section 9.1 (Questions and Complaints), or (b) closing Customer’s Account within the ControlRooms Solution by accessing the “User Preferences” menu of the ControlRooms Solution.
Termination by ControlRooms. ControlRooms may terminate this Agreement upon written notice to Customer. Without limiting the foregoing, ControlRooms has the right to, immediately and without notice, suspend or terminate Customer’s use of any ControlRooms Solution upon any actual or suspected breach by Customer of Section 2.2 (Restrictions). Further, ControlRooms may immediately terminate this Agreement in the event ControlRooms is required to do so by law (e.g., where the provision of the ControlRooms Solution is, or becomes, unlawful). Customer agrees that all terminations by ControlRooms shall be made in ControlRooms’ sole discretion and that ControlRooms shall not be liable to Customer or any third party for any termination of Customer’s Account.
Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than five (5) days after receipt of written notice of such breach.
Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 6 (Confidentiality); and (c) any amounts owed to ControlRooms under this Agreement will become immediately due and payable. Sections 2.2 (Restrictions), 2.3 (Ownership), 2.5 (Open Source Software), 4 (Disclaimer), 4 (Limitation of Liability), 6 (Confidentiality), 7 (Indemnification), 8.2 (Termination for Breach), 8.5 (Effect of Termination), 9 (Miscellaneous), and 10 (Definitions), will survive expiration or termination of this Agreement for any reason.
MISCELLANEOUS
Questions and Complaints. Customer may direct any Account requests, questions, or complaints with respect to the ControlRooms Solution to: [email protected]
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.
Export. Customer may not use, export, import, or transfer any portion of the ControlRooms Solution except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the ControlRooms Solution, and any other applicable laws. In particular, but without limitation, the ControlRooms Solution may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the ControlRooms Solution, Customer represents and warrants that (i) Customer 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) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer also will not use the ControlRooms Solution for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. Customer acknowledges and agrees that products, services or technology provided by ControlRooms are subject to the export control laws and regulations of the United States. Customer shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer ControlRooms products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
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.
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 of such provision on any other occasion.
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.
Compliance with Law. Customer shall comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the ControlRooms Solution, Output and Documentation.
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.
Independent Contractors. Customer’s relationship to 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.
Notices. Where ControlRooms requires that Customer provide an email address, Customer is responsible for providing ControlRooms with its most current email address. In the event that the last email address provided to ControlRooms by Customer is not valid, or for any reason is not capable of delivering to Customer any notices required by the Agreement, ControlRooms’ dispatch of the email containing such notice will nonetheless constitute effective notice. Customer may give notice to ControlRooms at the following address: 600 Congress Avenue, Austin, TX 78701. Such notice shall be deemed given when received by ControlRooms by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
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.
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.
DEFINITIONS.
“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.
“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.
“ControlRooms Solution” means the ControlRooms software-as-a-service critical infrastructure monitoring application that allows Authorized Users to access certain features and functions through a web interface.
“Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the ControlRooms Solution.
“Documentation” means the technical materials provided by ControlRooms to Customer in hard copy or electronic form describing the use and operation of the ControlRooms Solution.
“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.
“Output” means results, reports, materials and documentation made available by ControlRooms to Customer as part of the ControlRooms Solution.
“Third-Party Service Content” means any information, data, text, and other materials accessible through the ControlRooms Solution that Customer has provided to and stored in its Third-Party Service Account. All Third-Party Service Content shall be considered to be Customer Content for all purposes of this Agreement.