Cormit Terms and Conditions
Digital Sensing and Control LLC
Digital Sensing and Control LLC
These Cormit Terms and Conditions (these "Terms") govern the Cormit System and Services described in an invoice (the "Invoice") issued by Digital Sensing and Control LLC ("DSC") to the Customer, and are effective as of the earlier of (i) DSC's receipt of Customer's payment on the Invoice and (ii) any Customer account registration. Together, the Invoice and these Terms are the "Agreement".
The "System" means any hardware Customer has ordered from DSC as described on the Invoice and "Services" mean the software services Customer has elected to receive from DSC as described on the Invoice. The System may consist of (i) field nodes and other DSC supplied hardware and ancillary parts (together, the "DSC Equipment") and/or (ii) third-party supplied sensors, hardware and ancillary parts (together, the "Third-Party Equipment") resold by DSC to Customer, in each case as further described in the Invoice. For the avoidance of doubt, DSC Equipment remains DSC-owned equipment, and DSC retains title to all DSC Equipment at all times.
Subject to the terms of this Agreement, DSC will (i) deliver the System to the Customer shipping address specified on the Invoice and (ii) use commercially reasonable efforts to provide Customer the Services during the term.
Subject to the terms hereof, DSC will provide Customer with reasonable technical support services in accordance with DSC's standard practice.
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, firmware or underlying structure, ideas, know-how or algorithms relevant to the System, Services or any software, documentation or data included with the System or Services ("Software"); modify, translate, or create derivative works based on the System, Services or any Software (except to the extent expressly permitted by DSC or authorized within the Services); or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on the DSC Equipment, DSC hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the System and Services. Customer will not, directly or indirectly use the DSC Equipment with any services or software other than the DSC-provided Service and Software. Customer represents, covenants, and warrants that Customer will use the System and Services only in compliance with DSC's standard documentation then in effect (the "Documentation") and all applicable laws and regulations.
Other than with respect to the System, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the System and Services, including, without limitation, sensors modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Customer Equipment"). Customer shall also be responsible for maintaining the security of the System, Customer Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account, System or the Customer Equipment with or without Customer's knowledge or consent.
Customer acknowledges and agrees that the DSC Equipment belongs to DSC and will not be deemed fixtures. Customer may not sell, lease, abandon or give away the DSC Equipment.
Customer shall be responsible for the correct installation and configuration of the System in accordance with the Documentation. DSC is not responsible for the performance of installation or configuration services of Customer or third parties, even if the DSC provides contact information for or lists such third party as a party available for System installation and configuration services.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of DSC includes non-public information regarding features, functionality and performance of the System and Services. Proprietary Information of Customer includes non-public data provided by Customer to DSC to enable the provision of the Services ("Customer Data").
Customer shall own all right, title and interest in and to the Customer Data. DSC shall own and retain all right, title and interest in and to (a) the DSC Equipment, Services and Software, all improvements, enhancements or modifications thereto, and (b) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, DSC shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the System, Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and DSC will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the System, Services and for other development, for diagnostic and corrective purposes in connection with the System, Services and other DSC offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
Customer will pay DSC the fees described in the Invoice for the System and Services in accordance with the terms therein (the "Fees"). DSC reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Services term or then-current renewal term, upon forty-five (45) days prior notice to Customer (which may be sent by email).
Payment for the Invoice is due upon presentment. DSC may subject overdue amounts to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and overdue amounts may result in immediate termination of Service. Customer shall be responsible for all taxes associated with the System and Services other than U.S. taxes based on DSC's net income.
Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the Invoice, and shall be automatically renewed for additional periods of the same duration as the initial service term (collectively, the "Term"), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days' notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Upon any termination, Customer shall promptly return the DSC Equipment to DSC in accordance instructions provided by DSC.
DSC warrants to Customer that the DSC Equipment will be free from defects in materials and workmanship under normal use and service during the Term. This limited DSC Equipment warranty is non-transferrable. DSC's sole obligation shall be limited to accepting return of the defective DSC Equipment or DSC Equipment component and providing replacement with a substantially functional equivalent product or component to replace the defective DSC Equipment or DSC Equipment component.
Any warranty for Third-Party Equipment is provided by DSC's third-party suppliers of such Third-Party Equipment. DSC agrees to pass through to Customer any and all warranties provided by such third-party suppliers of Third-Party Equipment, to the extent permitted by the terms of such warranties.
DSC shall use reasonable efforts consistent with prevailing industry standards to maintain Services in a manner which minimizes errors and interruptions in Services. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance.
DSC DOES NOT WARRANT THAT THE SYSTEM OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SYSTEM OR SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SYSTEM AND SERVICES ARE PROVIDED "AS IS."
DSC shall hold Customer harmless from liability to third parties resulting from infringement by the DSC Equipment or Service of any United States patent or any copyright or misappropriation of any trade secret, provided DSC is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, DSC AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND DSC'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO DSC FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
At DSC's sole and reasonable discretion, DSC may make available certain System, component and/or Software updates or replacements (i) that are needed to maintain reliable performance of Customer's System and/or Software or any components thereof or (ii) to improve the Customer's System and/or Software (collectively, "Updates & Replacements"). Upon notice from DSC requesting Customer to implement such Updates & Replacements, the Customer agrees to take reasonable steps and follow provided instructions to effectuate such Updates & Replacements.
DSC may include the name and logo of Customer in lists of customers, regardless of format or media (including in product literature, press releases, social media and other marketing materials). Customer permits the receipt of marketing communications from DSC.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with DSC's prior written consent. DSC may transfer and assign any of its rights and obligations under this Agreement without consent.
This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
Digital Sensing and Control LLC
11650 Graton Rd, Sebastopol, CA 95472, USA
Email: info@cormit.com