TERMS AND CONDITIONS

These Terms and Conditions constitute an agreement (this “Agreement”) by and between Zia for Buildings LLC (Provider) and the user of the software as a service (Recipient)

  1. Definitions
    • “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.
    • “Recipient Data” refers to data in electronic form input or collected through the Service by or from the recipient.
    • “Service” refers to the Provider’s software as a service. The Provider may change such features from time to time, in its sole discretion.
  2. Service & Payment
    • Service. Provider will provide the Subscription Service to Recipient pursuant to its standard policies and procedures then in effect.
    • Payment. Recipient will pay Provider such monthly Service fees as are required in Recipient’s Account, due on the day before the start of the calendar month of Service. If Provider does not receive the required payment before the start of the next calendar month then Provider will charge a 10 % late fee and such fee shall be added to the next payment due. If Recipient fails to pay the required fees for three (3) months, then Provider shall be permitted (at Provider’s sole discretion) to terminate this agreement. Provider shall have no further duties to Recipient in law or in equity, but this shall not relieve Recipient’s responsibility for all outstanding payments due to Provider.
  3. Service Level Agreement.
    • In the event of any “Service Failure,” Provider will issue the Recipient credits. Credits issued apply to outstanding or future payments only and are forfeited upon termination of this Agreement. Provider is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation termination of this Agreement.
    • Credits are Recipient’s sole remedy for the Service Failure in question.
    • The service will be available 95% of the time.
    • Credits will be applied based for any downtime in excess of 5%.
  4. Materials, Software, & IP.
    • Materials. Recipient recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by trade secrets, copyright, trademark, and other intellectual property laws; and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Recipient’s use of the Service.
    • IP in General. Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components.
    • Recipient acknowledges that certain ideas, feedback, and processes, including enhancement and customization requests, are shared with Provider throughout the term of this agreement. Such ideas, feedback, and processes, including enhancement and customization requests, will be used by Provider to accommodate Recipient’s needs. RECIPIENT AGREES THAT SUCH ideas, feedback, and processes, including enhancement and customization requests, DO NOT BECOME PROPERTY OF THE RECIPIENT AND RETAIN THE PROTECTIONS DESCRIBED IN THIS SECTION 4A AND B IN FAVOR OF PROVIDER. IF RECIPIENT VIOLATES THIS UNDERSTANDING IN ANY WAY, THEN PROVIDER SHALL HAVE ALL REMEDIES IN LAW OR IN EQUITY AGAINST RECIPIENT.
  5. Online Policies.
    • Acceptable Use Policy. Recipient will use this service as part of managing sustainable practices for facilities.
    • Privacy Policy. The Privacy Policy applies only to the Service and does not apply to any third party site or service linked to the Service or recommended or referred to through the Service or by Provider’s employees.
  6. Warranties.
    Disclaimers. Except for the express warranties specified in this Section 6, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, (i) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (ii) Provider does not warrant that the Service will perform without error or immaterial interruption.
  7. Limitation of Liability
    IN NO EVENT: (a) WILL PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $10,000.00. AND (b) WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF RECIPIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 7, Provider’s liability will be limited to the maximum extent permissible. (c) In no event will Provider be liable for any damage to Recipient’s system or data as a result of events including but not limited to hackers, breach of security, or viruses, whether or not such events are foreseeable.
  8. Data Management
    • Access, Use, & Legal Compulsion. Unless it receives Recipient’s prior written consent, Provider: (i) will not access or use Recipient Data other than as necessary to facilitate the Service; and (ii) will not give any third party access to Recipient Data, unless required to facilitate the service. Notwithstanding the foregoing, Provider may disclose Recipient Data as required by applicable law or by proper legal or governmental authority. Provider will give Recipient prompt notice of any such legal or governmental demand when practical and reasonably cooperate with Recipient in any effort to seek a protective order or otherwise to contest such required disclosure, at Recipient’s expense.
    • Recipient’s Rights. Recipient possesses and retains all right, title, and interest in and to Recipient Data, and Provider’s use and possession thereof is solely as Recipient’s agent.
    • Provider’s Rights. Except as provided in Section 8b immediately above, Recipient acknowledges that certain ideas, feedback, processes, treatment … are shared with Provider throughout the term of this agreement. Such ideas feedback…, including enhancement and customization requests, will be used by Provider to accommodate Recipient’s needs pursuant to this agreement. RECIPIENT AGREES THAT SUCH IDEAS…DO NOT BECOME PROPERTY OF THE RECIPIENT AND RETAIN THE PROTECTIONS DESCRIBED IN THIS SECTION 4A AND B IN FAVOR OF PROVIDER. IF RECIPIENT VIOLATES THIS UNDERSTANDING IN ANY WAY, THEN PROVIDER SHALL HAVE ALL REMEDIES IN LAW OR IN EQUITY AGAINST RECIPIENT. Recipient acknowledges that Provider utilizes the services of other independent contractors to facilitate its duties under this agreement. Recipient acknowledges that this necessarily includes sharing of information with these independent contractors and by signing this agreement Recipient consents to such activity.
    • Retention & Deletion. Provider will retain all Recipient Data until erased pursuant to the Data Policy.
    • Injunction. Recipient agrees that violation of the provisions of this Section 8 might cause Provider irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Provider will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
  9. Term & Termination
    • Term. This Agreement will continue for one (1) year following the Effective Date (a “Term”). Thereafter, this Agreement will renew for subsequent terms (“Terms”) of one year, unless either party notifies the other of its intent not to renew, in writing, 30 or more days before the beginning of the next Term.
    • Termination. Either party may terminate this Agreement for material breach by written notice, effective in 30 days. However, if notice of breach is given to Provider by the Recipient, then Provider shall have 30 days to cure such breach at Provider’s sole discretion. Provider shall be permitted to terminate this agreement without cause by giving Recipient 30 days written notice.
    • Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Recipient to pay for Service rendered before termination; (ii) Sections 4, 5(b), 6 and 7 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
  10. Miscellaneous
    • Amendment. Provider may amend this Agreement (including the SLA and Data Policy) from time to time by posting an amended version at its website and sending Recipient written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Recipient first gives Provider written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Recipient’s next Term following the Proposed Amendment Date (unless Recipient first terminates this Agreement pursuant to Section 9 above).
    • Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way. Provider shall have no liability in law or in equity to Recipient’s clients and Recipient will indemnify and hold Provider, as well as Provider’s independent contractors, harmless for any legal action arising against Recipient or Provider as a result of Provider’s services under this agreement. ZIA for Buildings LLC, contracts and works with other independent contractors in order to provide the services necessary under this agreement.
    • No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
    • Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
    • Assignment & Successors. Provider may assign this agreement or any of its rights or obligations hereunder without Recipient’s consent. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
    • Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Delaware
    • Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
    • Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of the SLA or Data Policy, the terms of this main body will govern. In the event of any conflict between this Agreement and any Provider policy posted online, including without limitation the AUP and Privacy Policy, the terms of this Agreement will govern.
    • Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.