TERMS AND CONDITIONS
These Website Standard Terms and Conditions written on this webpage shall manage your use of this website as well as your use of the Monitoring Software as per your Monitoring Agreement. These Terms will be applied fully and affect to your use of Monitoring Equipment, Software and this Website. By using our equipment and this Website, you agreed to accept all terms and conditions written in here.
INTELLECTUAL PROPERTY RIGHTS
Other than the content you own, under these Terms, and/or its licensors own all the intellectual property rights and materials contained in this Website or in Monitoring Software.
You are granted limited license only for purposes of viewing the material contained on website and user reports.
TITLE AND RISK OF LOSS
Title to Hardware Products only, and risk of loss and damage to Hardware Products and Licensed Materials, shall pass to Customer upon delivery. EMS retains title to all Licensed Materials and all copies thereof. Title to all Data forwarded to EMS by Customer passes to EMS upon receipt thereof, with the understanding that EMS will not disclose Customer Confidential Information. EMS shall not be liable for loss of Data. EMS encourages Customer to download and save reports as a backup.
GRANT OF LICENSE:
(a) Upon delivery of Licensed Materials and/or access thereto and subject to the provisions of this Agreement, EMS grants Customer a personal, nontransferable, non-sub licensable and nonexclusive license to use the Licensed Materials on Designated Hardware during the Term and any Renewal Period for Customer’s own internal operations at the Customer’s building. If the Designated Hardware becomes inoperative, Customer must notify EMS as soon as possible for resolution. Customer shall not reverse engineer, decompile or disassemble Licensed Materials furnished as object code to generate corresponding source code, nor shall Customer sublicense or distribute the Licensed Materials. Customer shall not copy Licensed Materials except for backup and archival purposes.
(b) If Customer’s agreement is terminated, or when Customer no longer uses the Licensed Materials, customer shall return or destroy the Licensed Materials and all copies and certify to EMS that it has done so.
(a) The Schedule of Services and Pricing attached hereto as Exhibit B sets forth the hosted services that Gleason Technology, Inc. will provide Customer, on behalf of EMS pursuant to the terms and conditions of this Agreement (the “Hosted Services”). Subject to Customer’s payment of the applicable fees set forth in the Schedule of Services and Pricing attached hereto as Exhibit B, EMS hereby grants Customer during the Term and any Renewal Period and on the terms and conditions set forth herein, a non-exclusive, non-transferable, non-sublicensable, limited right to (i) access the Hosted Services for Customer through Customer’s Internet browser login provided by EMS and (ii) use the Hosted Services in accordance with the terms and conditions of this Agreement. Except for the limited licenses expressly set forth herein, this Agreement does not grant Customer any intellectual property rights in the Hosted Services.
(b) Customer shall be permitted concurrent access and use of the Hosted Services for the number of employee(s) that have been registered by Customer and authorized to access the Hosted Services by EMS (each, a “User”). EMS will assign a username and password to each individual User. Such assigned username and passwords shall be maintained as confidential by Customer and shall not be distributed or disclosed. Customer shall immediately notify EMS and terminate a username and/or password upon its knowledge or belief that such username and/or password is or may be subject to a breach of this Agreement, including without limitation a breach of confidentiality.
(c) Customer shall ensure that its Users shall comply with the terms and conditions of this Agreement. Customer shall not permit User’s to access or use the Hosted Services other than as expressly provided herein, and the unique username and password of each User shall be used only by such User. A breach by any User of any provision of this Agreement shall constitute a breach by Customer. Nothing in this Section 9(c) imposes on EMS an obligation to supervise or monitor use of the Hosted Services.
(d) Customer shall not (i) download or copy the Hosted Services (including without limitation the underlying code) or any portion thereof; (ii) translate, decompile, disassemble, or otherwise reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Hosted Services (except to the extent that the provisions of this clause are expressly prohibited by applicable law); (iii) provide, lease, lend, use for timesharing, outsourcing, hosting or service bureau purposes or allow others to access or use the Hosted Services; (iv) modify, incorporate into or with other software or services or create a derivative work of any part of the Hosted Services; (v) create or disseminate performance information or analysis (including, without limitation, benchmarks) relating to the Hosted Services; (vi) upload or download any software, data or information except as may be expressly permitted under this Agreement; (vii) use, or permit its Users to use the Hosted Services, in ways that violate laws, infringe or violate the rights of others including, but not limited to third party intellectual property rights, privacy, and publicity rights, or interfere with other users of EMS services; (viii) use or rely on the Hosted Services, including any reports generated by the Hosted Services, in connection with the development by Customer of any programs, writings, or works, or in connection with the production of products or the performance of services for third parties; (ix) introduce in or to the Hosted Services any virus or implement a denial of service attack or introduce or implement any other code or routine which results in disruption or damage to the Hosted Services, alter, damage or delete any data or retrieve or record information about the Hosted Services or its uses. Customer will promptly notify EMS of any complaints or objections to Customer’s use of the Hosted Services.
(e) Except for the Hardware Product provided hereunder, Customer shall, at its own cost and expense, provide all equipment, operating systems, and software (including Web browser) needed to use and access the Hosted Services in accordance with the technical requirements in EMS’s documentation. Customer shall also provide, at its own cost and expense, all connections from its computer systems to the Hosted Services.
(f) EMS will provide support services under the terms and conditions set forth in the Schedule of Services and Pricing attached hereto as Exhibit B. Any and all bug fixes, updates, upgrades, modifications and new releases of the Hosted Services (collectively, “Improvements”) provided to Customer by EMS will be considered “Hosted Services” subject to the provisions of this Agreement.
(a) During the Warranty Period, EMS warrants to Customer only that (i) Licensed Software produced by Gleason Technology, Inc on behalf of EMS (hereby EMT/GT) will be free from those defects which materially affect performance in accordance with the Specifications; and (ii) Services will be performed in a workmanlike manner and in accordance with good industry practice in the community in which Services are provided. With respect to the provided Hardware Products, which are produced by another third-party, and Licensed Software not produced by EMS/GT, EMS hereby assigns to Customer, to the extent permitted, the warranties given to EMS by its vendors of such items. Customer
agrees to use commercially reasonable efforts to look too and deal with such third-party supplier(s) on all warranty matters.
(b) “Warranty Period” means the applicable period of time that Licensed Software or Service is warranted as set forth herein. For Licensed Software, the Warranty Period begins upon delivery to Customer’s premises and continues for [ninety (90)] days. The Warranty Period for Services begins on the date EMS completes the Services and continues for thirty (30) days.
(c) If, under normal and proper use, a defect or non-conformity appears in Licensed Software during the applicable Warranty Period and Customer promptly notifies EMS in writing of such defect or non-conformance and follows EMS's instructions regarding return of such defective or non-conforming Licensed Software, then EMS will, at no charge to Customer, either (i) repair, replace or correct the same or (ii) if EMS determines that it is unable or impractical to repair, replace or correct the Licensed Software on the affected equipment, provide a refund or credit not to exceed the original purchase price or license fee, less reasonable value received. If Services prove not to be performed as warranted during the applicable Warranty Period, EMS, will either correct or replace such device, service.
(d) No Licensed Software will be accepted for repair or replacement without the written authorization of and in accordance with instructions from EMS. Removal and reinstallation expenses as well as transportation expenses associated with returning Licensed Software to EMS shall be borne by Customer. EMS shall pay the costs of transportation of the repaired or replaced Licensed Software to any United States destination designated by Customer. If Gleason determines that any returned Licensed Software is not defective, Customer shall pay EMS's costs of handling, inspecting, testing and transportation and, if applicable, travel and living expenses. In repairing or replacing any Licensed Software medium under this warranty, EMS may use either new, remanufactured, reconditioned, refurbished or functionally equivalent parts or Licensed Software media.
(e) EMS makes no warranty with respect to defective conditions or non-conformities resulting from any of the following: Customer's modifications, misuse, neglect, accident or abuse; improper wiring, repairing, splicing, alteration, installation, storage or maintenance not performed by EMS; use in a manner not in accordance with EMS's or its vendor's Specifications, or operating instructions; failure of Customer to apply previously applicable EMS's modifications or corrections; or items not manufactured by EMS or purchased by EMS pursuant to its procurement specifications.
(a) Customer will defend and save EMS harmless for any Infringement Claim to the extent that it: (i) arises from adherence to design modifications, specifications, drawings, or written instructions which EMS is directed by Customer to follow; or (ii) arises from adherence to instructions to Customer's Elevator maintenance provider’s maintenance control program (MCP) or other elevator maintenance contract requirements; or (iii) resides in a Hardware Product or Licensed Materials which are not of EMS's origin and which are furnished under this Agreement; (iv) relates to a modification made by Customer of any Hardware Product or Licensed Materials; or (v) relates to Customer’s use of any Hardware Product, Licensed Materials or Hosted Services provided by EMS.
Customer will be responsible where Hardware Products and Licensed Materials will be delivered and installed and where Services will be performed according to EMS’s written requirements. Customer shall allow EMS’s personnel access to the site and to the Hardware Products and Licensed Materials as necessary for EMS to perform its obligations hereunder. EMS’s personnel shall comply with Customer’s reasonable site and security regulations and procedures of which EMS has received written notice prior to arrival at the site. Customer will provide EMS with such technical information, data, technical support and assistance as reasonably required by EMS to fulfill its obligations hereunder. Customer will obtain all necessary and applicable governmental permits for installation, operation and maintenance of Hardware Products and Licensed Materials furnished hereunder, except for applicable permits EMS must have to conduct business in the ordinary course. Customer will fulfill the foregoing obligations without charge to EMS. If Customer fails to prepare the sites or to provide the above-described permits, information, support or assistance, EMS will be excused from performing its obligations until Customer provides what EMS requires to perform. Customer shall reimburse EMS for any costs and expenses incurred due to Customer’s failure to prepare the sites or to provide any of such items.
USE OF CONFIDENTIAL INFORMATION
All Confidential Information shall belong to the Party disclosing it. The disclosing Party grants the receiving Party the right to use Confidential Information only for purposes expressly permitted in this Section. EMS shall use Customer’s Confidential Information only to perform EMS’s obligations under this Agreement. Customer shall use EMS’s Confidential Information only to, use, and maintain the Hardware Products, Licensed Materials, Services and Hosted Services furnished hereunder. The receiving Party (i) shall hold the Confidential Information in confidence; (iv) shall disclose Confidential Information only to those employees who have a need to know and use the Confidential Information for the permitted purposes, provided that they have agreed in writing to maintain the confidentiality of the information and are not employees of any competitor of EMS. The foregoing restrictions and obligations shall not apply to information that the receiving Party can demonstrate: (a) was independently developed by or for the receiving Party without reference to the disclosing Party’s Confidential Information; (b) has become publicly known through acts not attributable to the receiving Party; (c) was in the receiving Party’s possession or was known by the receiving Party at the time of disclosure; or (d) was received without restriction from another party.
INDEMNIFICATION; LIMITATIONS OF LIABILITY AND EXCLUSIVE REMEDIES
(a) Customer will indemnify and defend EMS from all third party claims and damages (including without limitation reasonable costs and expenses incurred in connection with investigating, preparing or defending, or providing evidence in or preparing to serve or serving as a witness with respect to such claims) (each, collectively, a “Claim”) arising from or related to EMS’s provision of goods and services hereunder; provided, however, that Customer will not be required to indemnify EMS to the extent a Claim arises from the gross negligence, bad faith, willful misconduct or violation of law of/by EMS as determined in a final judgment by a court of competent jurisdiction.
(b) EMS will not be responsible or liable with respect to this agreement under any theory of liability including but not limited to, contract, negligence, or strict liability: (I) For interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology; (II) For any special, indirect, incidental, consequential, or punitive damages, including, but not limited to, loss of profits; or (III) for any amounts in excess of the aggregate fees paid to EMS for the then current calendar year which are attributable to the complaint associated with a particular claim.
(c) Our respective obligations set out herein are the sole and exclusive remedies for any breach or default under or arising out of this Agreement and for any other claims related to any Hardware Products, Licensed Materials, Services or Hosted Services obtained by Customer from Gleason.
(a) Termination shall occur upon mutual agreement of the Parties.
(b) Either Party may elect to terminate the Agreement if the other Party files for protection under the bankruptcy laws, makes an assignment for the benefit of creditors, or a trustee or similar officer is appointed for the other Party or its assets.
(c) Termination shall occur upon notice of termination given by one Party to the other six (6) months prior to the expiration of the Term or any Renewal Period.
(d) The Parties acknowledge that their rights and obligations under this Agreement shall survive the termination or expiration of this Agreement; provided that Customer’s rights under “Grant of License”, “Hosted Services” or “Use of Confidential Information” shall not survive if Customer’s material breach of any of those Sections gave rise to the termination.
Except for payment obligations, neither Party shall be responsible for any delay or failure in performance to the extent such delay or failure is caused by fire, strike, embargo, explosion, earthquake, flood, war, terrorist activity, water, the elements, labor dispute, government requirements, acts of God, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond a Party’s reasonable control.
Except as provided in this Section, neither Party shall assign this Agreement or any right or interest, or delegate any work or obligation to be performed, under this Agreement without the other Party's prior written consent. Any attempted assignment in contravention of this Section shall be void and ineffective. EMS may assign this Agreement or assign its rights or delegate its duties under it, in whole or in part, at any time and without Customer’s consent, to any present or future affiliate or in connection with a merger or sale of all or substantially all of its assets. EMS shall give Customer prompt written notice of the assignment. Nothing shall preclude a Party from employing a subcontractor in carrying out its obligations under this Agreement. A Party's use of such subcontractor shall not release the Party from its obligations under this Agreement.
Any notice required or permitted under this Agreement shall be in writing and shall be sent by certified United States mail (return receipt requested), by guaranteed overnight delivery or by courier to the other Party at the address first written in this Agreement and to the attention of the individual or department set out below:
To: Elevator Management Solution’s, Inc.,
Attention: Corporate .
A notice shall be effective when received as shown on the delivery receipt. A Party may change its designated representative or address by giving notice to the other as provided above.
Each Party is an independent contractor and is not an agent of the other. This Agreement does not create an agency, partnership, joint venture, or similar business relationship. Neither Party shall require releases or waivers of any personal rights from representatives or employees of the other to visit the Party’s premises, nor shall a Party plead such a release or waiver in any action or proceeding. If any portion of this Agreement is found to be invalid or unenforceable, the remaining portions shall remain in effect. If either Party fails to enforce any right or remedy available under this Agreement, that failure shall not be construed as a waiver of any right or remedy with respect to any other breach or failure by the other Party.
CHOICE OF LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.
This Agreement constitutes the entire agreement, and supersedes all prior oral and written understandings, between the parties regarding the subject matter hereof. Any modification or addition to this Agreement shall be in writing and signed by authorized representatives of both Parties. In case of any conflict between the provisions of this Agreement (including the Exhibits) and of an addendum (including its attachments), the provisions of the addendum shall take precedence.
A. “Confidential Information” means all Customer Data and all nonpublic information in whatever form, including, without limitation, specifications, drawings, documentation, know-how, pricing, and Licensed Materials and Hosted Services, which may be disclosed by either Party to the other Party and which bears a legend or notice regarding its proprietary or confidential nature or, if not in tangible form, which the disclosing Party describes as proprietary or confidential at the time of disclosure and subsequently send a written summary to the receiving Party within 30 days of disclosure. Licensed Materials and Hosted Services shall be considered Confidential Information even if not marked “Confidential”.
B. “Customer Data” means all information about Customer’s premises gathered during inspection tours by Customer’s elevator contractor employees utilizing Hardware which is subsequently transmitted to EMS for storage and processing into management reports.
C. “Designated Hardware” means the hardware, at the location indicated on the Schedule of Services and Pricing provided initially as Exhibit B, upon which Customer is authorized by EMS to operate Licensed Software.
D. “Documentation” means all user manuals, handbooks, written reports and other written or on-line materials, which are supplied by EMS in connection with the operation of the Licensed Hardware Products.
E. “Hardware Product” means equipment hardware, and parts thereof listed on the Schedule of Services and Pricing attached hereto as Exhibit B, but does not include Software whether or not such Software is part of firmware.
F. “Infringement Claim” means a claim, action, proceeding or suit brought by a third party alleging an infringement of any United States patent, United States copyright or United States trademark, or a violation in the United States of any trade secret by reason of the use, in accordance with EMS’s Specifications, of any Hardware Product manufactured by EMS or Licensed Materials developed by EMS and furnished under this Agreement.
G. “Licensed Materials” means the Licensed Software, Documentation, enhancements, revisions, updates and upgrades thereof, modifications and/or derivative works thereto, custom programming, and all other items delivered by EMS to Customer product pursuant to this Agreement, and all copyright, patent, and other intellectual property rights therein.
H. “Licensed Software(s)” means the computer programs which are included in the product.
I. “Services” means certain activities or functions set out on the Schedule of Services and Pricing provided initially as Exhibit B that are to be performed by EMS which relate to engineering, installation, training, or consulting activities that relate to Hardware Products, Software or Licensed Materials.
J. “Software” means a computer program, in machine-readable or object-code form, consisting of a set of logical instructions and tables of information that guide the functioning of a processor. Such program may be contained in any medium whatsoever, including firmware, representing such program, but does not include such medium.
K. “Specifications” means EMS’s or its vendor’s written technical description of how a particular Hardware Product or Licensed Software furnished under this Agreement is designed and its performance characteristics and capabilities.