End User License Agreement
Last Updated: October 30, 2019
This End User License Agreement (this “Agreement”) is a binding agreement between Surd Systems Inc. (“Surd” or “we”) and the company or organization designated in your Surd user account (“Company” or “you”). By clicking “I Accept,” you acknowledge that (i) you are at least 18 years old; and (ii) you have read, understood, and agree to be legally bound by the terms and conditions of this Agreement. The person accepting this Agreement represents that he or she is authorized to act on behalf of, and bind, the Company.
The definitions for some defined terms are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
means the application programming interface through which you may access the Platform. Surd reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API (or any part thereof) with or without notice.
1.2 “Authorized User”
means an employee, contractor, or agent of Company (solely to the extent such contractor or agent is providing services to Company), who has been authorized by Company to access and use the Platform.
means one or more ways, including software and/or hardware components, to collect data into the Platform. Certain connectors include the use of IOTile Devices, Surd Systems’ proprietary hardware products.
means your or your Authorized Users’ feedback, comments, suggestions, ideas, and the like regarding the Connectors and/or the Platform.
means Surd Systems’ edge and/or cloud-based platform that works with software and hardware Connectors to allow for the extraction, transformation, loading, and/or analytics of data including the Company Content, including all mobile applications, websites, web tools, and user interfaces used to access the platform.
1.6 “User Content”
means any data or materials provided by your Authorized Users or collected by Surd through your Authorized Users’ use of the Platform. For the avoidance of doubt, User Content does not include any Feedback.
2. DEVICES; REGISTRATION; THIRD-PARTY USERS
The Platform works in connection with the Connectors, among which are software and hardware components. For hardware components, you will have separately received them from us or a third party. You must install and configure each Connector in accordance with its documentation in order for it to function with the Platform. Your use of any hardware components is governed by our Hardware Terms and Conditions of Sale.
During the Company registration process, we will ask you to create a Company account, which includes a unique sign-in name (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). Each of your Authorized Users will need to create a sub-account. When creating an account, you and your Authorized Users must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password may be used by only one Authorized User. You are responsible for the confidentiality and use of all assigned Sign-In Names, Passwords, and Unique Identifiers. Surd will not be liable or responsible in any way for any loss or damage arising from your failure to comply with the terms of this Section 2.2. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change any Password, Sign-In Name, or Unique Identifier at any time and for any reason.
2.3 Third-Party Users
You may invite third-party end users and developers (“Third-Party Users”) to access and use the Platform. Each Third-Party End User shall be required to accept this Agreement prior to accessing and using the Platform. If a Third-Party End User is using any hardware components, they are required to accept the Hardware Terms and Conditions as well prior to accessing and using the Platform or hardware.
3. LICENSE; USER CONTENT
3.1 License Grant
Subject to the terms and conditions of this Agreement, Surd hereby grants Company a limited, royalty-free, fully paid-up, non-exclusive, non-transferable license, without the right to grant sublicenses, to permit its Authorized Users to access and use the Platform during the term of this Agreement for Company’s internal business purposes only. Company shall be responsible for the acts and omissions of its Authorized Users. Notwithstanding the foregoing or anything else set forth herein to the contrary, Surd reserves the right, upon written notice to you, to implement, change and/or increase fees for your use of the Platform.
Other than the limited license granted in Section 3.1 above, all right, title, and interest in and to the Platform, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain the sole and exclusive property of Surd.
3.3 Restrictions on Use
You will not (and will not authorize or knowingly permit any Authorized Users, Third-Party Users, or third parties to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of any software relating to the Platform; (ii) resell, distribute, or sublicense the Platform; (iii) remove or modify any proprietary markings or restrictive legends placed on the Platform; (iv) use the Platform in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; (v) introduce into any software relating to the Platform, any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; or (vi) make abusive or excessively frequent requests to Surd via the API (which shall be determined by Surd in its sole discretion). You agree to indemnify Surd in the event any third party claims are asserted against Surd arising from your breach of your obligations under this Section 3.3.
3.4 User Content
You own all right, title and interest in and to the User Content. You hereby grant to Surd a perpetual, irrevocable, non-exclusive, sub-licensable, transferable, fully paid-up, royalty-free license to reproduce, use, display, distribute, create derivative works of, and otherwise exploit the User Content in an aggregate and anonymous manner for any purposes whatsoever.
This Agreement shall commence on the date you accept this Agreement and shall continue until terminated pursuant to Section 4.2.
In the event of a material breach of this Agreement by a party, the other party may terminate this Agreement by giving five (5) business days prior, written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach before the expiration of such period. In addition, either party may terminate this Agreement at any time for any or no reason by giving thirty (30) days prior, written notice to the other party.
4.3 Effect of Termination
Upon termination of this Agreement, all rights and licenses granted under Section 3.1 will cease, and you shall immediately cease all access to, and use of, the Platform. You are solely responsible for downloading any User Content from the Platform prior to the effective date of termination, and we shall not be required to retain any User Content after such date.
Sections 1, 3.2, 3.4, 4.3, 4.4, and 5-9 shall survive termination of this Agreement.
5. CONFIDENTIALITY; FEEDBACK
5.1 Use and Disclosure of Confidential Information
You shall hold in strict confidence the terms of this Agreement, as well as any non-public information and materials of Surd (the “Confidential Information”). You hereby covenant that you shall not disclose such Confidential Information to any third party or use such Confidential Information for any purpose other than to exercise your rights hereunder without the prior, written authorization of Surd.
5.2 Use and Disclosure of User Content
5.3 Feedback; Support
You and your Authorized Users may provide Surd with Feedback. You agree that Surd shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you. All requests for support or other inquiries must be in English and must be sent via email.
6. DISCLAIMER OF WARRANTIES
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” Surd MAKES NO, AND HEREBY DISCLAIMS ALL, EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES WITH REGARD TO PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT Surd MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL Surd BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER Surd WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. Surd’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY COMPANY TO Surd FOR THE USE OF THE PLATFORM DURING THE THREE (3) MONTH PERIOD PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM. WITHOUT LIMITING ANY OF THE FOREGOING, Surd SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER CAUSED BY THE ACTS OR OMISSIONS OF ANY THIRD-PARTY VENDOR PROVIDING ANY PRODUCTS OR SERVICES IN CONNECTION WITH YOUR USE OF THE API, THE DEVICE, OR THE PLATFORM.
8. APP STORE TERMS
The following terms apply when you download any of our mobile applications (the “Apps”) from Apple’s App Store. These terms are in addition to all other terms contained in this Agreement.
You acknowledge and agree that (i) this Agreement is concluded between you and Surd only, and not Apple; and (ii) Surd, not Apple, is solely responsible for the Apps and content thereof. Your use of the Apps must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps.
In the event of any failure of the Apps to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the Apps to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apps. As between Surd and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Surd.
You acknowledge that, in the event of any third-party claim that the Apps or your possession and use of the Apps infringe that third party’s intellectual property rights, as between Surd and Apple, Surd, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the Apps, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Apps against you as a third-party beneficiary thereof.
9. MISCELLANEOUS PROVISIONS