February 7, 2019
Note: Use of the StaffAlerter appliance, software and cloud portal is at your own risk. By using any combination of the StaffAlerter Appliance, SOFTWARE and cloud portal you agree that these components are being provided to you as a resource but without any warranty or representation regarding the results or outcomes of use. You understand that any number of things, including without limitation, inadequate network coverage, NETWORK INTERRUPTIONS, or a misconfigured IP address can prevent a message from being launched or delivered. You understand and agree that you will not rely on this application as the sole means by which you will communicate with any emergency contacts or emergency service providers. You understand and agree that other methods of communication are available to you, including the verbal transmission of information over the phone. the StaffAlerter application cannot and does not replace, and is not intended to replace, your other methods for communicating with emergency contacts or emergency service providers. The StaffAlerter application does not replace the need to place a call to 9-1-1 in the event of an emergency.
1.1 Our Service. PM POWER PRODUCTS offers online service that integrates with the individual items of software and hardware that have been provisioned to access PM POWER PRODUCTS cloud-based solutions and imported into PM POWER PRODUCT’s systems (each, a “Device”) to perform various Internet of Things related tasks and functions (the “Cloud Service”). Certain services and functionalities available via the Cloud Service are free of charge. However, PM POWER PRODUCTS may, in its sole discretion, charge fees in connection with certain services, such as by limiting the number of Events (as defined below) that may be performed without charge. As used herein, an “Event” means any HTTP/HTTPS request made by the Cloud Service to a third party service(s), including without limitation, via webhooks or integrations or any discrete message sent via integrations, websockets or server sent event (SSE) streams by the Cloud Service to any third party service(s).
(a) Trial and Paid Accounts. In order to use certain features of the Cloud Service, you must register for an account with PM POWER PRODUCTS (an “Account”). We offer two types of Accounts: a trial version (“Trial Account”), and a paid account (“Premium Account”). Users with Trial Accounts shall be able to use the Cloud Services on a limited basis, as the number of Events that may be performed and Devices included under a Trial Account are limited to the number of Events set forth on our pricing page.
(b) Registration Information. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will maintain the accuracy of such information by updating your Account information from time to time. PM POWER PRODUCTS may suspend or terminate your Account if you breach any of the terms of this Agreement. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify PM POWER PRODUCTS of any unauthorized use, or suspected unauthorized use, of your Account, or any other breach of security. PM POWER PRODUCTS will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. LICENSED USES AND RESTRICTIONS
2.1 Access Grant. Subject to your compliance with the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-assignable, non-transferable license to internally use and access the Cloud Service solely as necessary to develop, maintain and support your Devices in accordance with the documentation or specifications included in the Cloud Service.
2.3 Restrictions. You agree that you will not, and will not assist, permit, authorize, or enable others to, do any of the following (each, a “Restriction”) without our express written consent: (i) reverse engineer or decompile the Cloud Service or Software or any component thereof, or attempt to create a substitute or similar service through use of or access to the Cloud Service or Software, unless this is expressly permitted or required by applicable law; (ii) copy, rent, lease, sell, transfer, assign, sublicense, or alter any part of the Cloud Service, the API, or any other Software including but not limited to the following: PM Power Products server software; PM Power Products middleware and web services; PM Power Products user interfaces for cloud and email activation; all firmware programmed in event servers, text-to-speech and .wav broadcast components of the API, and any other hardware products; Vox Streamer event recorder; software and scripts for monitoring, reporting, administration and installation; digital display clients; mass communication and scheduling software, StaffAlerter; and the PM Power Products API Package. The PM Power Products API Package consists of a suite of different application programmer interfaces (API) that will allow external software offerings to interface with PM Power Products Software and endpoints such as Staff Alerter base event server and ContactNotifier, (collectively, the “PM POWER PRODUCTS Properties”); (iii) use PM Power Product’s name to endorse or promote any product, including a product derived from the PM POWER PRODUCTS Properties; (iv) use the PM POWER PRODUCTS Properties for any illegal, unauthorized, or otherwise improper purposes, or in any manner which would violate this Agreement; (v) remove any legal, copyright, trademark, or other proprietary rights notices contained in or on the PM POWER PRODUCTS Properties; (vi) use the PM POWER PRODUCTS Properties in a manner that, as determined by PM POWER PRODUCTS, in our sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the PM POWER PRODUCTS Properties documentation; (vii) imply inaccurate creation, affiliation, sponsorship, or endorsement of you, or your Devices; or (viii) use the PM POWER PRODUCTS Software on or in connection with any website other than the specific URL(s) provided by PM POWER PRODUCTS at the time you registered for the PM POWER PRODUCTS Software.
2.4 Updates and Modifications. PM POWER PRODUCTS may, at its sole discretion, release subsequent versions of the PM POWER PRODUCTS Software and PM POWER PRODUCTS API and underlying data and transmit new code and data to the devices you currently have in service from PM POWER PRODUCTS to obtain and use the most current version. Before major modifications are made and deployed to the PM POWER PRODUCTS API, PM POWER PRODUCTS will provide you sufficient advanced notice along with technical support needed to enable you to make the necessary modifications to your software to insure continued compatibility. If a subsequent version is unacceptable to you, you may discontinue use of the PM POWER PRODUCTS Software and API at any time by simply removing them from your software and hardware. If you continue to use the Software or API in your software or hardware, you will be deemed to have accepted any modifications and new versions.
2.5 Usage Limitations. Users may not perform more than the number of Events per month or use the Cloud Services in connection with more Devices, for which the applicable fees have been paid, as set forth on our pricing page. Regardless of whether you have a Trial Account or Premium Account, we may limit: (i) the number of network calls that your Devices may make to the Cloud Service; (ii) the maximum file size; and (iii) anything else about the Event as we deem appropriate, in our sole discretion. We may impose or modify these limitations without notice. We may utilize technical measures to prevent over-usage and stop usage of the Cloud Service by a Device after any usage limitations are exceeded or suspend your access to the Cloud Service with or without notice to you in the event you exceed any such limitations.
3.2 Refusal of Devices. PM POWER PRODUCTS will have the right, in its sole discretion, to refuse to permit your use of the PM POWER PRODUCTS Properties with a particular Device. Unless PM POWER PRODUCTS states otherwise, such rejection will not terminate this Agreement with respect to any other Device. PM POWER PRODUCTS will have no liability to you for such refusal.
3.3 Monitoring. You agree to provide us with access to your Device and other materials related to your use of the Cloud Service as reasonably requested by us to verify your compliance with this Agreement.
3.4 Unauthorized Applications. You understand that the PM POWER PRODUCTS Properties are not designed, intended, authorized or warranted to be suitable for use in the following “Unauthorized Applications”: life support applications, devices or systems; the operation of nuclear facilities; aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines; weapons systems; military or space equipment requiring radiation hardened components; and Enhanced 911 or E911 emergency calling systems. You warrant that you will not use the PM POWER PRODUCTS Properties for Unauthorized Applications.
3.5 You understand that StaffAlerter is designed to communicate through various possible technologies with PM POWER PRODUCTS Cloud Service. PM POWER PRODUCTS does not provide, maintain or support the availability or reliability of the communications layer to the internet that is required for StaffAlerter to function. You fully assume all responsibility for ensuring access to the internet for StaffAlerter and its devices in order to use its functionality. Under no circumstances will PM POWER PRODUCTS be responsible for an inability to access the internet due to a failure in facilities, equipment or connectivity required to access the internet.
4.1 Ownership. As between you and PM POWER PRODUCTS, PM POWER PRODUCTS owns all right, title and interest in and to the PM POWER PRODUCTS Properties, including any mapping data accessed by virtue of the Software, and all Intellectual Property Rights embodied therein or related thereto. Except for the licenses granted in Sections 2.1 (Access Grant) and 2.2 (PM Power Products Software), this Agreement grants you no right, title, or interest in any intellectual property owned or licensed by us, including the Cloud Service, Software and Trademarks and Brand Features (as defined below). You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices and restrictions contained in this Agreement. We claim no ownership or control over your Device or the content sent, posted or displayed through your Device, except for any PM POWER PRODUCTS Properties therein. “Intellectual Property Rights” shall mean any and all rights existing under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
5.1 Marketing. We may publicly refer to you, orally or in writing, as a PM POWER PRODUCTS Properties licensee and/or as a customer of PM POWER PRODUCTS and we may publish your name and logo on the PM POWER PRODUCTS website or promotional materials without prior written consent. You grant us all necessary rights and licenses to do so.
5.2 Support. We may provide you with support, upgrades, or modifications for the PM POWER PRODUCTS Properties in accordance with our service level agreement set forth at www.pmpowerproducts.com/pricing In the event we provide any support, it will be considered part of the PM POWER PRODUCTS Properties for purposes of Section 9 (Disclaimer and Liability) and Section 10 (Indemnification) below, and we may terminate the provision of such support or modifications to you at any time without notice or liability to you. You understand and agree that you are solely responsible for providing user support and any other technical assistance for your StaffAlerter and Devices. We may redirect users and potential users of your StaffAlerter and Devices to your email address on file for purposes of answering general inquiries and support questions regarding StaffAlerter or Devices.
5.3 Independent Development. You acknowledge and agree that PM POWER PRODUCTS may be independently creating applications, content and other products and services that may be similar to or competitive with your StaffAlerter and Devices and its content, and nothing in this Agreement will be construed as restricting or preventing PM POWER PRODUCTS from creating and fully exploiting such applications, content and other items, without any obligation to you. If you elect to provide us with any comments, suggestions, or feedback related to our PM POWER PRODUCTS Properties, you assign all right, title and interest in and to such comments, suggestions and feedback to us, and acknowledge that we will be entitled to use, implement and exploit any such feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting, or compensation or other duty to account.
6. FEES AND PAYMENT TERMS
6.1 Payment. You agree to pay all fees or charges to your Account in accordance with the applicable fees, charges and billing terms in effect at the time a fee or charge is due and payable. Users must provide PM POWER PRODUCTS with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). By providing PM POWER PRODUCTS with your credit card number and associated payment information, you agree that we are authorized to immediately invoice your Account for all fees and charges due and payable to PM POWER PRODUCTS hereunder, including for any recurring fees, and that no additional consent is required. You agree to immediately notify us of any change in your billing address or credit card used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Website or by e-mail notice to you.
6.2 Automatic Renewal. You will be responsible for payment of the applicable fee for the PM POWER PRODUCTS Properties (each, a “Service Subscription Fee”) at the time you create your Account and select your monthly or annual package (each, a “Service Commencement Date”). Except as set forth herein, all fees for the PM POWER PRODUCTS Properties are non-refundable. Your subscription will continue indefinitely until terminated in accordance with the terms herein. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically renew on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an equivalent period, at PM POWER PRODUCTS’ then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription by providing written notice of cancellation to PM PRODUCTS at least thirty (30) days prior to the Renewal Commencement Date. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; and your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
6.3 Pricing. Please refer to our pricing page www.pmpowerproducts.com/pricing for a description of the fees payable in connection with the Cloud Service. In the event that you wish to increase the number of Events or Devices beyond the maximum number of Events or Devices for which the applicable fees have been paid, you will be required to pay additional fees associated with the increased number of Events or Devices, prorated for the remainder of the then-current subscription term.
6.4 Taxes. PM POWER PRODUCTS’ fees are net of any applicable sales or use tax (“Sales Tax”). If any PM POWER PRODUCTS Properties, or payment for any PM POWER PRODUCTS Properties, under this Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to PM POWER PRODUCTS, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority.
7. TERM AND TERMINATION
7.1 Term. You agree that this Agreement will be deemed to be in effect upon the date on which you accept this Agreement, in accordance with the preamble.
7.2 Suspension and Termination. We may change, suspend, or discontinue the availability or any functionality of the PM POWER PRODUCTS Properties, or any aspect of your access to the PM Power Products Properties, at any time without notice to you and without incurring any liability to you. We may also impose limits on certain features and services or restrict your access to part or all of the PM POWER PRODUCTS Properties without notice to you and without incurring any liability to you. Furthermore, PM POWER PRODUCTS may limit, suspend, or terminate your use of the PM POWER PRODUCTS Properties (and your rights under this Agreement) at any time. In addition, this Agreement will terminate automatically and without notice immediately upon any breach of the terms of this Agreement by you.
7.3 Your Termination. You may terminate this Agreement for any reason or no reason at all, at your convenience, by ceasing your use of the PM POWER PRODUCTS Properties, and providing at least thirty (30) days prior written notice to PM POWER PRODUCTS.
Neither party will be liable to the other party for damages of any sort resulting solely from the termination of this Agreement. Notwithstanding clause 7.4(i), PM POWER PRODUCTS’ sole obligation as it relates to copies of, or references or links to, your Device(s) will be to, upon written request from you, make commercially reasonable efforts, as determined in its sole discretion, to remove all such references and links.
7.5 Deletion of Data. PM POWER PRODUCTS will use reasonable efforts to delete your password, name, payment information and all related information associated with or inside your Account (or any part thereof), excluding data related to past transactions, upon termination of this Agreement.
7.6 Survival. Sections 4.1 (Ownership), 4.2 (Brand Features), 5.3 (Independent Development), 6 (Fees and Payment Terms), 7.6 (Survival), and 8 (Confidentiality) through 11 (General) will survive any termination of this Agreement.
8.1 Ownership. “Confidential Information” means all written and oral information, disclosed or made available by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information. All Confidential Information is proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as required in performance of a Party’s obligations under this Agreement, neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents and consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving Party will notify the disclosing Party as soon as possible.
8.2 Exceptions. The foregoing provisions will not apply to Confidential Information that: (i) is or becomes generally publicly available or enters the public domain through no fault of the receiving Party; (ii) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (iii) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the receiving Party without use or reference to the Confidential Information of the disclosing Party; or (v) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (1) to comply with the order of a court or other governmental body or applicable law, provided the Party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (2) to establish a Party’s rights under this Agreement.
9. DISCLAIMER AND LIABILITY
9.2. PM POWER PRODUCTS MAKES NO WARRANTY THAT THE PM POWER PRODUCTS PROPERTIES WILL MEET YOUR REQUIREMENTS OR THAT THE PM POWER PRODUCTS PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
10.1 By You. You will defend, indemnify and hold harmless PM POWER PRODUCTS and its affiliates, and their respective directors, officers, agents, licensors, and other partners and employees from and against any loss, cost, liability and expense (including reasonable attorneys’ fees and court costs) incurred by PM POWER PRODUCTS and arising from or in any way related to your Staff Alerter and Devices, your use of the PM Power ProductS Properties, or your breach of any representation, warranty, covenant, or obligation under these Terms and Conditions, including any liability or expense arising from any claim, suit, demand, proceeding or legal action instituted or made against PM POWER PRODUCTS.
10.2 By PM POWER PRODUCTS. PM POWER PRODUCTS will, at its expense, defend or, at its option, settle any claim, action or allegation brought against you alleging that the PM POWER PRODUCTS Properties infringe any valid copyright, United States patent or misappropriate a trade secret of a third party and will pay any resulting final, non-appealable judgments. You will give prompt written notice to us of such a claim and you will give us the exclusive right to defend any such claim, action, or allegation and or to make settlements thereof at our discretion. You will give such assistance and information as we may reasonably require to settle or to oppose such claims. This Section 10.2 applies only to the extent that you have a Premium Account, and PM POWER PRODUCTS has no obligations hereunder in regard to infringement claims brought in regard to PM POWER PRODUCTS Properties used pursuant to a Trial Account. This Section 10.2 provides your exclusive remedy, and our sole obligations, with respect to any infringement claims.
10.3 Options. In the event any infringement claim, action or allegation is brought or threatened, we may, at our sole option and expense: (i) procure for you the right to continue use of the PM POWER PRODUCTS Properties or infringing part thereof; (ii) modify or amend the PM POWER PRODUCTS Properties or infringing part thereof, or replace the PM POWER PRODUCTS Properties or infringing part thereof with similar functionality; or (iii) if neither of the preceding is commercially practicable terminate the Agreement and the licenses granted herein.
10.4 Exclusions. This indemnification obligation will not apply if the infringement arises as a result of (i) any use of the PM POWER PRODUCTS Properties in a manner other than as specified in this Agreement, (ii) any use of the PM POWER PRODUCTS Properties in combination with other products, equipment, devices, systems, or data not supplied by us to the extent such claim is directed against such combination, or (iii) any alteration, modification, or customization of the PM POWER PRODUCTS Properties made by any party other than PM POWER PRODUCTS or our authorized representative.
11. RESTRICTIONS ON USE
11.1 In the event that you are located outside of the United States, or you are operating is running on a server located outside of the United States, you agree to comply with any laws, rules or regulations in your locale or in the location of your web server regarding online conduct and acceptable content, including laws regulating the export of data to the United States or your country of residence.
12.1 Entire Agreement. This Agreement constitutes the entire agreement between you and PM POWER PRODUCTS and governs your use of the PM POWER PRODUCTS Properties. If, through accessing or using the PM Power Products Properties, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and this Agreement will not affect your legal relationship with such third party. PM POWER PRODUCTS shall no liability in regard to your access to or use of any such third party product or service.
12.2 Relationship of Parties. The Parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the Parties. Neither Party is the representative of the other Party for any purpose and neither Party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
12.3 Governing Law. This Agreement will be governed in accordance with the laws of the State of Ohio without reference to its conflicts of law principles. The Parties agree that the exclusive jurisdiction of any actions arising out of this Agreement will be in the state or federal courts, as applicable, located in Franklin County, Ohio, without regard to conflicts of laws principles.
12.4 Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such term or provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
12.5 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the PM POWER PRODUCTS Properties or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
12.6 Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder, to a third party without the other Party’s written consent, except that a Party may assign this Agreement without such consent as a consequence of a merger, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains. Any assignment in violation of the foregoing is null and void. This Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns.
12.7 Waiver. Failure to enforce or a waiver by either Party of one default or breach of the other Party will not be considered to be a waiver of any subsequent default or breach.
12.8 Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) at the Parties’ respective addresses set forth herein or maintained in your Account. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier. You agree that PM POWER PRODUCTS may send any privacy or other notices, disclosures, reports, documents, communications and other records regarding the Service (collectively, “Notices”) in electronic form to: (1) the email address that you provided during registration, or (2) by posting the Notice on the Service. The delivery of any Notice is effective when posted to the Service or sent by PM POWER PRODUCTS (whichever first occurs), regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling your Account. You must give notice to us in writing via email to email@example.com or another address otherwise expressly provided.
12.9 Force Majeure. Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war.
12.10 Government End Users. The PM POWER PRODUCTS Properties are “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the PM POWER PRODUCTS Properties or such documentation by the United States Government will be governed solely by the terms of this Agreement.
12.11 Remedies. All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. A party’s breach or threatened breach of any of its covenants or agreements in this Agreement may cause irreparable injury that is inadequately compensable in monetary damages. You acknowledge that your breach of PM POWER PRODUCTS’ Software/license restrictions contained herein may cause irreparable harm to PM POWER PRODUCTS. Accordingly, you agree that, in addition to any other remedies to which PM POWER PRODUCTS may be legally entitled, PM POWER PRODUCTS shall have the right to seek immediate injunctive relief in the event of a breach of such sections by you or any of your officers, employees, consultants or other agents.