Service Agreement

IMPORTANT – READ CAREFULLY: This Software as a Service Agreement (this “Agreement”), constitutes a legal agreement, which governs the relationship between Criticallabs, LLC, an Iowa limited liability company (“Provider”), and you (“Customer”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” By checking the box indicating your agreement, clicking accept on the terms and conditions, or downloading and using Provider’s software solutions (“Software”), Customer agrees to accept and be bound by the terms of this Agreement, including all those that related to the connection of the Software to Customer’s on-premises devices and equipment that allow Provider to remotely monitor its customers’ commercial and industrial property and provide reports and information related to the same (collectively, the “Services”). This Agreement shall be effective as of the date of such acceptance by Customer (the “Effective Date”). If Customer does not agree with any terms and conditions of this Agreement, it should not check the box, click accept, or download the Software, any of which indicate its acceptance. The terms and conditions of this Agreement may, from time to time, be amended by Provider. To the extent that Provider makes any material changes to the terms and conditions of this Agreement, it will use its best efforts to notify Customer within thirty (30) days of such change taking effect. By accepting this Agreement and contining to use the Software and Services after Provider notifies Customer of material changes to the Agreement, Customer agrees to be bound by any subsequent changes to the Agreement. In consideration of your use and access to the Software and Services, you acknowledge and agree that you have read and understand this Agreement and agree to be bound by the following terms and conditions:

  1. Access and Use.
    1. Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Services during the term of this Agreement, solely for use by Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access the Software and use the Services under the rights granted to Customer pursuant to this Agreement and [(ii) for whom access has been purchased hereunder] (“Authorized Users”). Such use is limited to Customer’s internal use. Customer will maintain [separate user accounts for all Authorized Users with unique account identifications and password, as well as] the network links or connections to allow Authorized Users to access the Services. [The total number of Authorized Users will not exceed the number set forth in the purchase order, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.] Customer acknowledges and agrees that it is consenting to the automatic updating of the Software and the devices connected to the Software.
    2. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable license to use any user manuals, handbooks, or guides relating to the Services provided by Provider to Customer either electronically or in hard copy form (“Documentation”) during the term of this Agreement solely for Customer’s internal business purposes in connection with its use of the Services.
    3. Use Restrictions. Customer shall not access or use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any component of the Software; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
    4. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software, Services, Documentation, and any intellectual property related to the foregoing.
    5. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s or any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on the Software or Services; (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to the Software or Services or to any other third party; (C) Customer, or any Authorized User, is using the Services for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor or licensor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) for Customer’s nonpayment of Fees due. Provider shall use commercially reasonable efforts to provide written notice of any suspension to Customer and to provide updates regarding resumption of access to the Services following any suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a suspension.
    6. Customer Data. Customer shall retain all right, title, and interest in and to all information and data the Customer inputs into the Services, or which Customer’s property, or the monitoring devices attached thereto, automatically generate through the Services (“Customer Data”). Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Data (as defined below). Customer acknowledges that it is responsible for complying with any applicable data privacy and security laws when using the Software and sharing Customer Data.
    7. Aggregated Data and Analytics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect, compile and utilize data related thereto; provided that such data is aggregated with other customer data and anonymized (“Aggregated Data”). As between Provider and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Provider. Provider may utilize Aggregated Data (i) to benchmark the performance of the property of each of Provider’s customers; (ii) to analyze Customer’s historical property performance; (iii) to market the Services; and (iv) for Provider’s other internal business uses.
    8. Amazon Web Services. Customer acknowledges that the Software, Services, and all Customer Data will be hosted and stored on Amazon Web Services (“AWS”). In no event will Provider be liable for any data breaches, service disruptions, or unavailability of the Services due to issues with AWS or any other third party. In the event of any such breaches, interruptions or unavailability, Customer’s sole and exclusive remedy will be any remedy that AWS may provide.
  2. Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
  3. Fees and Payment. Customer shall pay Provider the fees (“Fees”) as set forth [on a the applicable purchase order] without offset or deduction. Customer shall make all payments on or before the due date set forth [on a the applicable purchase order]. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for [ten (10)] days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
  4. Confidential Information. Either Party may disclose or make available to the other Party information about its business affairs, products, intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether oral, written, electronic, or other form or media (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure as evidenced in writing; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of the other Party’s Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, agents, or representatives who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall, if legally permitted, have given written notice to the other Party and made a reasonable effort to obtain a protective order. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.
  5. Feedback. If Customer or any of its employees, contractors, agents, or Authorized Users sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors, agents, and Authorized Users all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
  6. Warranty Disclaimer. THE SERVICES ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. PROVIDER ALSO SPECIFICALLY MAKES NO WARRANTIES RELATED TO THE HOSTING AND STORAGE OF THE SOFTWARE, SERVICES, AND CUSTOMER DATA WITH AWS.
  7. Indemnification.
    1. Provider Indemnification.
      1. Provider will indemnify, defend and pay any judgment against Customer from any third party claims brought against Customer for infringement of U.S. intellectual property rights arising from Customer’s use of the Services in accordance with the terms and conditions of this Agreement. Notwithstanding the foregoing, this indemnity shall not apply to any claim of an intellectual property violation arising from or due to (A) the integration or combination of the Services with products or services not provided by Provider; (B) any modification to the Services by any party other than Provider; or (C) unauthorized use of the Services. Provider shall have sole control of the defense of any claim.
      2. In lieu of Provider’s indemnification obligation above, if the Services are, or in the opinion of Provider may become, the subject of a valid indemnifiable claim, then Provider may, at its option and expense (A) procure for the Customer the right to use the Services in their then-current form; (B) replace the Services with substantially similar solutions; (C) provide Customer with a modified version of the Services such that they no longer infringe a third party’s intellectual property rights; or (D) restrict access to the Services and/or terminate this Agreement. Customer agrees to cooperate with Provider and take such further steps as are necessary to effectuate Provider’s decision above. If Provider elects to utilize this alternative remedy, this Section 7(a)(ii) will be Customer’s sole remedy and Provider’s exclusive liability for infringement of intellectual property.
    2. Customer Indemnification. Customer agrees to indemnify, defend and hold Provider, its affiliates, directors, officers, employees, independent contractors and agents harmless from and against any and all liability, claim, loss, damage or expense, including but not limited to reasonable attorney’s fees (“Loss”), with respect to any claim by any third party arising from (i) Customer’s use of the Services in any manner outside of, or not in accordance with the Documentation or this Agreement; (ii) the information contained in the Customer Data; or (iii) Customer’s breach of its representations and warranties contained in this Agreement.
  8. Limitations of Liability.
    1. Provider cares about the security of the Customer Data, and although Provider may implement commercially reasonable technical and organizational measures to protect the security and privacy of the Customer Data, Customer acknowledges that the transmission of information via Wi-Fi networks and the Internet is not completely secure and that no security measures are perfect or impenetrable. Provider cannot guarantee that unauthorized third parties will never be able to defeat those measures or use the Customer Data for improper purposes. Customer acknowledges that all Customer Data is provided at Customer’s sole risk and Provider is not responsible for circumvention of any privacy settings or security measures contained in the Software.
    2. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNT PAID TO PROVIDER UNDER THIS AGREEMENT IN THE THREE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  9. Term and Termination.
    1. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for [one (1) year] from such date (the “Initial Term”). This Agreement will automatically renew for additional successive [one (1) year] terms unless either Party gives the other Party written notice of non-renewal at least [sixty (60)] days prior to the expiration of the then-current term (each a “Renewal Term”).
    2. Termination. In addition to any other express termination right set forth in this Agreement:
      1. Provider may terminate this Agreement, effective on written notice to Customer, if Customer breaches any of its obligations hereunder Section 1(c) or Section 4;
      2. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
      3. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Services. No termination will affect Customer’s obligation to pay all Fees that may have become due before such termination, or entitle Customer to any refund.
    4. Survival. This Section 9(d) and Sections 3 – 8, 10, and 11 survive any termination or expiration of this Agreement.
  10. Third Party Products and Interfaces. In the event Provider allows the Software to interface with any third party products or devices or services, Customer will be fully responsible for the decision to utilize the Software with such third party products and services. Any Customer Data shared with third parties as a result of Customer’s decision to have the Software interface with any third party product or services shall be governed solely by the privacy and security obligations of such third party. Provider makes no representation or warranty about the quality or safety of any third party product or service and Customer will remain solely liable for its use of such third party product or service, and any claims resulting therefrom.
  11. Miscellaneous.
    1. Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
    2. Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. Notwithstanding the generality of the foregoing, the acts, omissions, or delays of Customer or any third party shall also be considered a force majeure event under this Section.
    3. Waiver. No waiver of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    4. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    5. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Iowa without giving effect to its conflict of law provisions. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder will be instituted exclusively in the federal and state courts located in the state of Iowa, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    6. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    7. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
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