RIMOT SUBSCRIPTION SERVICES AGREEMENT
This Services Agreement (“Agreement”) is entered into as of the Effective Date between RIMOT.IO INC. (“RIMOT”), and Customer.
Capitalized terms not otherwise defined in this Agreement shall have the meaning given to them in the Quote provided by RIMOT to Customer.
1. BINDING AGREEMENT
The Quote is an offer for the purchase of the Equipment, the Software and the Service in accordance with the terms of this Agreement. The Quote and this Agreement, together with any documents incorporated by reference in them, constitute the sole and entire agreement between the parties with respect to the subject matter of the Quote, and supersedes all prior and contemporaneous understandings, agreements, negotiations, representations and warranties and communications, both written and oral, with respect to the subject matter of the Quote. This Agreement prevails over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. In the event of any conflict of inconsistency between the Quote and this Agreement, the terms of the Quote govern.
Subject to the provisions of this Agreement, RIMOT licenses and authorizes Customer to resell the Service to its customers who agree to create an account with RIMOT (the “Client”). Customer accepts the appointment and will fulfill its obligations under this Agreement in good faith, using industry standard means. Subject to the provisions of this Agreement, the appointment and authorization are non-exclusive, non-transferable and non-sublicensable except to the Client.
3. DESCRIPTION OF THE SERVICE
The RIMOT Monitoring Service (the “Service”) consists of the Equipment which, among other things, continuously monitors the operational performance, weather conditions, and site-specific environmental conditions of remote radio systems, and the web based software (the “Software”) which, among other things, alerts of a fault occurrence or decline in performance of the equipment monitored by the Equipment. The Software is licensed under the terms of the End User License Agreement attached as Schedule “A” (the “EULA”).
Notwithstanding anything to the contrary contained in this Agreement, RIMOT may, from time to time change the Service without the consent of Customer provided that such changes do not materially affect the nature or scope of the Service, or the fees.
Equipment will be delivered within a reasonable time after the receipt of Customer’s acceptance of the Quote. RIMOT shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, RIMOT shall deliver the Equipment to the address specified in the Quote (the using RIMOT’s standard methods for packaging and shipping such Equipment. These terms apply to any replacement Equipment provided by RIMOT.
5. CONDITIONS OF THE SERVICE
The information provided by the Service is intended to assist End Users in the commercial operation and maintenance of remote networks and facilities. The Service is not intended to replace industry best practices, and the End User shall use the Service with other tools and information to make any related operational decisions. Although RIMOT attempts to provide continuous availability, use of the Service is for informational purposes only and delivered using commercially reasonable efforts.
Customer acknowledges and agrees that the weather data and lightning data supplied to End Users as part of the Service is based on both public and private weather models and are available as estimates only. Actual conditions may vary from these estimates.
Experience has shown that the resolution, timeliness, and format which lightning data are presented within various displays and products, does not provide a total solution with regard to addressing concerns regarding the presence of convective activity and/or lightning and their potential impact on the safety of personnel and/or safeguarding of facilities, whether it be of immediate or short term concern. Interpretation and application of the data, as well as any comparative analysis and/or prognosis or similar activities done by any End User, is done so solely at the End User’s risk and have not directly or indirectly been implied, condoned or recommended by RIMOT, and/or its data suppliers.
Customer acknowledges that RIMOT uses third party hosting partners to provide technology required to run the Service and that the technical processing and transmission of data and information, including content provided by End Users, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changed to conform and adapt to technical requirements of connecting networks or devices.
Customer, the Client and End Users shall not: (i) take any action that imposes or may impose (as determined by RIMOT in its sole discretion) an unreasonable or disproportionately large load on RIMOT’s (or its third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) bypass any measures RIMOT may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) run any form of autoresponder or “spam” on the Service; or (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any portion of the Service.
Customer, the Client and End Users will not will not (a) process third party data (as a service provider), provide commercial hosting services, sell, sublicense, rent or lease the Service to another party, (b) decompile, disassemble, reverse engineer or modify in any manner, any aspect of the Service (except to the extent such prohibition is expressly prohibited by law), (c) use the Service in violation of any applicable laws or regulations, and (d) disclose, transfer or otherwise make available the results of any performance or functionality tests of the Service, to any third party without the prior written consent of RIMOT.
Information provided through the use of the Service is intended to assist the Client in the commercial operation and maintenance of remote networks and facilities. The Service is not intended to replace industry best practices, and the Client shall use the Service with other tools and information to make any related operational decisions. Although RIMOT attempts to provide continuous availability, use of the Service is for informational purposes only and delivered using commercially reasonable efforts.
6. CONTRACT TERM AND PRICING
RIMOT provides licenses to use the Service and the right Customer and the Client to grant sublicenses to End Users during term specified in the Quote (the “Initial Term” and together with any renewal of the Initial Term, the “Term”). Prices for the Service will remain in effect only for the Initial Term. During the Initial Term RIMOT reserves the right to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. If RIMOT discontinues the Service during the Initial Term, Customer will be credited for any pre-paid amounts for the balance of the Initial Service Term. RIMOT shall not be liable for any changes it makes to the Service beyond the refund of any pre-paid fees for the balance of the Initial Term.
7. CONTRACT RENEWALS
This Agreement will automatically renew on the expiration of the Initial Term for a 1 year period on same terms and conditions unless 60 days written notice is given by RIMOT or the Customer notifying of termination of the Agreement.
8. CANCELLATION AND TERMINATION
Customer may terminate this Agreement upon thirty (30) days prior written notice but shall not be entitled to a refund of any fees paid for the balance of the Term and shall be responsible for paying any fees for the balance of the Term. In the case of a cancellation of this Agreement, all content uploaded, transmitted and stored using the Service may be immediately deleted. RIMOT in its sole discretion, has the right to suspend or terminate Client and End User’s access and use of the Service if the Customer breaches this Agreement or does not pay any fees when due or if an End User violates the terms of the EULA. Such suspension or termination of the right to use the Service will result in the deactivation or deletion of all End User Accounts, and the forfeiture and relinquishment of all content in such End User Accounts. Any pre-paid fees for the Service for the balance of the Initial Term will be refunded to Customer.
In addition to any remedies that may be provided under this Agreement, RIMOT may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
9. INTELLECTUAL PROPERTY
Customer acknowledges that RIMOT and its licensors own all right, title and interest in and to the Service and all data generated by through the use of the Service, including without limitation all intellectual property rights. Except for the Open Source License Acknowledgement (OSLA) found at https://www.rimot.io/eula-oss, all rights in and to the Service and all data generated by Client and End Users through the use of the Service are reserved, and no implied licenses are granted by RIMOT.
10. PAYMENT AND BILLING
RIMOT shall invoice Customer for the Service Fees and the Equipment Fee (together, the “Fees”) in the manner set out on Quote. In addition to any other rights granted to RIMOT herein.
RIMOT makes no representation or warranty that the Service will be accessible or available at all times, or that the Service will be uninterrupted. Interruptions can and do occur on communications and monitoring systems for many reasons. RIMOT shall not be liable to Customer or to any third party claiming under Customer for any failure or interruption of the Service. Without limiting the generality of the foregoing, RIMOT shall not be liable to the Customer or any third party claiming under the Customer for any interruptions of service, for loss revenues, lost business or lost profits, missed opportunities or wasted expenditures incurred or suffered as a result of any such failure or interruptions, nor shall the Customer be entitled to any credit or refund as a result thereof. RIMOT MAKES NO WARRANTIES WITH RESPECT TO THE SERVICE OF ANY KIND WHATSOEVER, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT. THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE ARE HEREBY DISCLAIMED AND EXCLUDED. RIMOT SHALL NOT BE LIABLE TO ITS CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES EVEN IF MADE AWARE OF SAME.
CUSTOMER WILL NOT MAKE OR GIVE ANY REPRESENTATIONS, WARRANTIES, CONDITIONS, PROMISES, OR GUARANTEES REGARDING THE SERVICE OR THE USE THEREOF EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICE EXPRESSLY SET FORTH IN THIS AGREEMENT. RIMOT IS NOT RESPONSIBLE TO CUSTOMER OR TO ANY THIRD PARTTY CLAIMING UNDER CUSTOMER FOR ANY BREACH BY CUSTOMER OF THE PREVIOUS SENTENCE.
CUSTOMER ACKNOWLEDGES THAT RIMOT HAS NO CONTROL OVER, AND NO DUTY TO TAKE ANY ACTION REGARDING USE OF THE SERVICE BY END USERS.
CUSTOMER UNDERSTANDS AND AGREES THAT CLIENT’S USE OF THE SOFTWARE AND SERVICE, AND ALL THIRD PARTY SOFTWARE OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR SERVICE, IS AT ITS OWN DISCRETION AND RISK AND THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE.
12. LIMITATION OF LIABILITY
WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF RIMOT ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY CUSTOMER TO RIMOT FOR THE SOFTWARE OR SERVICE IN THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM ARISING.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SERVICE, FROM INABILITY TO USE THE SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
CUSTOMER AGREES, AT ITS EXPENSE, TO DEFEND, INDEMNIFY AND SAVE RIMOT HARMLESS FROM AND AGAINST ALL LOSSES, LIABILITIES, ACTIONS, PROCEEDINGS, DAMAGES AND OTHER CLAIMS BY THE CUSTOMER OR ANY THIRD PARTY, INCLUDING REASONABLE LEGAL FEES (HEREAFTER “CLAIMS”), ARISING OUT OF OR IN ANY MANNER RELATING TO USE OR MISUSE OF THE SERVICE BY THE CUSTOMER OR ANY PERSON CLAIMING UNDER IT (OR BY ANY PERSON WHO OTHERWISE GAINED UNAUTHORIZED ACCESS TO THE SERVICE), WITHOUT CONTRIBUTION BY RIMOT. IN THE EVENT RIMOT RECEIVES A CLAIM BY A THIRD PARTY, RIMOT MAY ELECT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO DEFEND AGAINST THE CLAIM ITSELF OR TO PROVIDE NOTICE TO THE CUSTOMER UNDER THIS SECTION. IF RIMOT ELECTS TO DEFEND AGAINST THE CLAIM ITSELF, RIMOT SHALL HAVE SOLE CONTROL OF THE ACTION, PROCEEDING AND/OR SETTLEMENT NEGOTIATION, AND SHALL HAVE THE RIGHT TO FULL INDEMNIFICATION BY THE CUSTOMER FOR ALL LOSSES, LIABILITIES, DAMAGES OR OTHER COSTS THAT ARE ULTIMATELY INCURRED BY RIMOT AS A RESULT OF THE CLAIM OR THE DISPOSITION THEREOF. THE CUSTOMER SHALL PROVIDE FULL COOPERATION AND ASSISTANCE TO RIMOT AS REQUIRED, AT ITS EXPENSE, FOR THE PURPOSES OF ACHIEVING FINAL RESOLUTION OF THE CLAIM.
14. COMPLIANCE WITH LAW
Customer, Client and End Users shall comply with all applicable laws, regulations and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
No waiver by RIMOT of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by RIMOT. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16. FORCE MAJEURE
RIMOT shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of RIMOT including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of RIMOT. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
18. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. THIRD-PARTY BENEFICIARIES
This Agreement is intended for the benefit of RIMOT hereto and its respective, suppliers, resellers, partners and their affiliates, successors and permitted assigns and this Agreement is intended to and shall confer upon any such other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
20. GOVERNING LAW/FORUM
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, shall be instituted in the courts of the Province of Nova Scotia, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Quote or to such other address that may be designated by the receiving party in writing. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) when sent, if by email, if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Quote including, but not limited to Sections 9, 12 and 13.
24. AMENDMENT AND MODIFICATION
This Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by an authorized rep