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Terms and Conditions

This Subscription Agreement (this “Agreement”) is entered into as of the Effective Date between Building Assure PBC. (“Company”) and the customer listed on any Order Form (“Customer”) mutually executed by the parties. Each Customer and Company may be referred to individually as a “Party” and collectively as the “Parties.” The Parties may from time to time execute additional Order Forms, which will be part of this Agreement. These Terms and Conditions govern the Company’s provision of certain Third-Party Hardware (“Third-Party Hardware”), and access to certain Third-Party Cloud services (“Third-Party Cloud Service”) as described on any Order Form(s).

1. ACCESS AND USE

1.1  Orders. Each Order Form shall set out a description of the costs associated with the provision of the Third-Party Hardware and Third-Party Cloud Service and the period of time Customer will have access to the Third-Party Cloud Service (the “Access Term”).

1.2  Provision of Access. Subject to the terms and conditions contained in this Agreement, the Company hereby grants to Customer, and users authorized by Customer (the “Authorized Users), a non-exclusive, non-transferable right to access the Third-Party Cloud Service outlined in the applicable Order Form during the Access Term up to the limits of the Third-Party Cloud Service (“the Service Limits) set forth on the Order Form. The company shall provide to Customer with the necessary passwords, access, and security policies and protocols to allow the Customer and the Authorized Users to access the Third-Party Cloud Service.

1.3  Usage Restrictions. The Third-Party Cloud Service is an information data service that supports measurement, validation, monitoring, optimization, efficiency, and maintenance efforts by Customers. Customer shall not rely on the Third-Party Cloud Service to operate, monitor, or control (i) any safety-related or life-critical system (e.g., fire alarm system), (ii) any critical infrastructure system, or (iii) any application or installation where failure could result in death, severe physical injury or property damage.

1.4  Ownership and Use of Customer Data. Customer retains all right, title, and interest in and to the data generated by the Third-Party Cloud Service for the Customer (the “Customer Data”). Subject to the foregoing, Customer hereby grants to Company a non-exclusive, non-transferable right and license to use the Customer Data for the limited purposes of performing Company’s obligations under this Agreement and to use the Customer Data in combination with other customers’ data to create anonymous aggregated statistics and associated insights.

1.5  Ownership of Company Software. Subject to the rights granted in this Agreement, Company retains all rights (including Intellectual Property Rights, which include all copyrights, trade secret rights, patents, patent applications, trademark rights, moral rights, contract rights, and other proprietary rights), title and interest in and to the Third-Party Cloud Service, and all software components of the Third-Party Hardware (“Company Software”), and Customer acknowledges that it neither owns nor acquires any additional rights or licenses in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Company retains the right to use the foregoing for any purpose in Company’s sole discretion.

2. SALE AND SUBSCRIPTION

2.1  Third-Party Hardware Subscriptions. Subject to the terms of this Agreement, Company may provide Customer subscriptions to one or more units of Third-Party Hardware (“Third-Party Hardware Subscriptions”) solely for use as part of the Third-Party Cloud Service during the Access Term. For Third-Party Hardware Subscriptions, Company shall retain full ownership of and title to the Third-Party Hardware, and all Intellectual Property Rights therein, including all copyrights, trade secret rights, patents, patent applications, trademark rights, moral rights, contract rights, and other proprietary rights. Customer shall: (a) ensure that the Third-Party Hardware is maintained in good working condition (e.g., as specified by Company, which may include, without limitation, environmental specifications); and (b) not assign, pledge, transfer, encumber, or grant any security interest in the Third-Party Hardware to any third party in any manner whatsoever, nor attempt to do any of the foregoing. While the Third-Party Hardware is in Customer’s possession, Customer hereby assumes and will bear all risk of damage, loss, theft, or destruction of the Third-Party Hardware. If the Third-Party Hardware is damaged (reasonable wear and tear excepted), Customer will notify Company, and Company will repair or restore the Third-Party Hardware at Customer’s cost so that the Third-Party Hardware is returned to good working order, condition, and repair. If the Third-Party Hardware is lost, stolen, destroyed, or damaged beyond repair, Customer will pay to Company the full, then-current published list price of the Third-Party Hardware, as communicated by Company. Within five (5) business days of the termination of this Agreement, Customer will return all Third-Party Hardware to Company. If Customer fails to redeliver the Third-Party Hardware as set forth in this Section 2.1, Customer agrees to pay to Company, the full then-current published list price of the Third-Party Hardware. Terms of the license to use the Company software included on the Third-Party Hardware are set forth in Section 2.5.

2.2  Third-Party Hardware Sales. Subject to the terms of this Agreement, Company may sell to Customer one or more units of Third-Party Hardware (“Third-Party Hardware Sales”) solely for use as part of the Third-Party Cloud Service during the Access Term. For Third-Party Hardware Sales, Company shall retain full ownership of and title to all Intellectual Property Rights to the Third-Party Hardware, including all copyrights, trade secret rights, patents, patent applications, trademark rights, moral rights, contract rights, and other proprietary rights. Terms of the license to use the Company software included on the Third-Party Hardware are set forth in Section 2.5.

2.3  Data Subscriptions.  Company data streams will have a base availability of a rolling 30-day basis, after which data will be archived.  Additional data subscription charges will be incurred for retaining data online for more than a rolling 30 days.

2.4  Customer Restrictions. Customer shall not (a) modify or make any alterations or modifications to the Third-Party Hardware; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of Company Software are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (c) allow third parties other than Authorized Users to gain access to Third-Party Hardware or Company Software; or (d) remove any proprietary notices or markings on the Third-Party Hardware.

2.5  License Grant. Subject to the terms and conditions of this Agreement, Company grants to Customer a limited non-exclusive, non-transferable, non-sublicensable license during the Access Term to use the Company software (including firmware and software, in object code format) that is installed on the Third-Party Hardware, solely as part of Third-Party Hardware (and not on a standalone basis), and subject to additional restrictions and limitations (if any) set forth in the Order Form.

2.6  License Restrictions. Customer acknowledges that all Company Software, and their structure, organization, and source code constitute valuable trade secrets of Company. Customer agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the Company Software; (b) merge the Company Software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer or allow use of the Company Software by, on behalf of, or for the benefit of any third party; (d) enable a third party other than Authorized Users to understand the operation, structure, or organization of Company Software; or (e) otherwise use or copy the Company Software except as expressly allowed under Section 2.5.

3. PAYMENT OBLIGATIONS AND PAYMENT TERMS.

3.1  Payments. Company shall submit invoices to the address provided by Customer. Company will ship Third-Party Hardware and third-party components to Customer upon receipt of payment.

3.2  Taxes and Duties: In addition to any payments due under this Agreement between Company and Customer, Customer is responsible for all taxes and duties, including without limitation, any sales use, value-added, royalty, or withholding tax imposed by any U.S. government entity or other government entity. If Company is obligated to collect taxes, then the appropriate amount will be added to Customer’s invoice. Customer will provide Company with a copy of any applicable resale or non-profit certificate before placing its first Order.

3.3  Returns and Restocking: Returns of Third-Party Hardware and third-party components will not be accepted after thirty (30) days. Returns of Third-Party Hardware and third-party components under one hundred dollars ($100) will not be accepted. A twenty percent (20%) restocking fee will be applied to returns of Third-Party Hardware and third-party components having a value of one hundred dollars ($100) or greater that are received within thirty (30) days.

3.4  Renewal Fees: Subscription fees for any additional years of subscription (“Renewal Subscription Fees”) will be invoiced sixty (60) days in advance of the start of the additional year of subscription. The Renewal Subscription Fees will be identified by an applicable Order Form or will be determined as a seven-and-a-half percent (7.5%) increase from the subscription fees from a previous year. Payment on a renewal invoice will be due within thirty (30) days. A late fee of one and a half percent (1.5%) will be applied to overdue renewal invoices.

4. SUPPORT SERVICES. During the Access Term, Company will provide to Customer reasonable telephone and email support during Company’s regular business hours (9 AM – 8 PM EST) to assist Customer with identifying and resolving problems and errors using the Company Service and will use commercially reasonable efforts to correct any reproducible errors. Online support is available via email at support@buildingassure.com Assistance for customer-requested professional services beyond telephone and email support will invoke additional fees (“Professional Service Fees”). A listing of Professional Service Fees will be provided to Customer upon request.

5.  CUSTOMER DATA AND SECURITY. Customer may permit Authorized Users to access the Third-Party Cloud Service as contemplated by this Agreement. Customer will be responsible for all actions or omissions of its Authorized Users. Customer shall use commercially reasonable efforts to prevent unauthorized access to the Third-Party Cloud Service. Company will use industry-standard means to protect Customer Data from unauthorized access. Customer acknowledges and agrees that Company has no obligation to archive back-up Customer Data, nor will Company have any liability for any loss or corruption of Customer Data, nor will Company have any obligation to retain any Customer Data after the Access Term.

6.0 CONFIDENTIALITY. Each Party will have access to certain Confidential Information of the other. Confidential Information will mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party, terms of this Agreement, and terms on any Order Forms, that have been identified as confidential or should reasonably be treated as confidential. Without limiting the foregoing, Third-Party Hardware and Company Software will be deemed Confidential Information of Company. Each Party agrees: (a) not to disclose the Confidential Information of the other to anyone except its employees, contractors, and advisors (“Representatives”) on a strictly need-to-know basis and subject to a written duty of confidence; (b) to use the Confidential Information strictly for the performance or receipt of this Agreement; and (c) to use commercially reasonable efforts to protect the confidentiality of the Confidential Information. Each Party may disclose Confidential Information to the extent required: (1) by securities laws; (2) to comply with a court or governmental order, or to comply with applicable law; or (3) to establish or preserve a party’s rights under this Agreement. Each Party will be responsible for the acts and omissions of its Representatives related to any breach of this Section.

7. WARRANTIES; DISCLAIMER.

7.1  Hardware Subscriptions Warranty. For Third-Party Hardware Subscriptions under Section 2.1, Company warrants that the Third-Party Hardware will substantially conform to the applicable documentation and will be free from material defects in materials and workmanship. Company’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for breach of this warranty, will be, at Company’s option, to repair or replace the defective Third-Party Hardware.

7.2  Limited Hardware Warranty. For Third-Party Hardware Sales under Section 2.2, Company warrants that the Third-Party Hardware will substantially conform to the specifications in the applicable documentation and will be free from material defects in materials and workmanship under normal use for a period of one (1) year from the date of shipment (“Warranty Period”). Company’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for breach of this warranty, will be, at Company’s option, to: (a) repair the defective Third-Party Hardware to correct the defect; or (b) replace any such Third-Party Hardware at no additional charge. Company reserves the right to use refurbished parts or Hardware for any replacement. This Limited Hardware Warranty does not apply (i) if the Third-Party Hardware has been subject to faulty and improper installation, maintenance, service, operational adjustments, repair, alteration and/or modification in any way that is not (a) covered in the documentation for the product or (b) carried out with Company’s prior consent in writing, (ii) to damages caused by failure to follow the instructions covered in the documentation for the Third-Party Hardware or other specific instructions from Company, (iii) to cosmetic damages, (iv) if the product has been tampered with, (v) if the product is damaged by acts of God, misuse, abuse, negligence, accident, normal wear and tear and deterioration, improper environmental conditions (including, but not limited to, electrical surges, water damage and heat exposure) or lack of responsible care, (vi) if the product has had the model or serial number altered, defaced or removed, (vii) to consumables (such as batteries) (viii) to any non-Third-Party Hardware product or any software (irrespective of whether it has been packaged and/or sold with Third-Party Hardware) and/or Company products purchased from an unauthorized distributor/reseller, (ix) to damage that occurs in shipment or from improper storage or transportation, (x) to damages by any other cause not related to defective design, workmanship and/or materials. If Third-Party Hardware is to be used outdoors or in dusty, humid, or other hostile environments, it must be suitably protected. Failure to comply with any of the aforementioned requirements will invalidate this Limited Hardware Warranty.

7.3  Cloud Service Warranty. Company represents and warrants that it will provide the Third-Party Cloud Service and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Company further warrants, for the benefit of Customer only, that the Third-Party Cloud Service will conform in all material respects to the standard user documentation for such Third-Party Cloud Service provided to Customer by Company for a period of thirty (30) days after Company first makes the Third-Party Cloud Service available to Customer, provided that such warranty will not apply to failures to conform to the documentation to the extent such failures arise, in whole or in part, from (i) any use of the Third-Party Cloud Service other than in accordance with the documentation, or (ii) any combination of the Third-Party Cloud Service with software, hardware or other technology not provided by Company under this Agreement.  Where third-party hardware is included as part of this Agreement for Internet connectivity by Third-Party Hardware, the service warranty will be defined by the third-party provider of such hardware.

7.4  Limitations. These warranties shall not apply to: (a) use of Third-Party Hardware or any component thereof other than according to the terms of the Agreement or related documentation; (b) modification, maintenance, or repair of the Third-Party Hardware or Software by Customer or any third party; (c) any combination or integration of the Software with any element not provided by Company; (d) any Open Source Software and/or third party components included in or with the Software; or (e) any damage caused by abuse, abnormal physical or electrical stress on, or improper use of Third-Party Hardware.

7.5  Warranty Disclaimer. Company does not warrant that Customer’s use of Third-Party Hardware, Company Software, or third-party products and/or services will be error-free or uninterrupted. Where third-party products and/or services are included as part of this Agreement, Customer understands that third-party products and/or services are governed solely by any express representations, warranties, or guarantees provided by the provider of such third-party products and/or services. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIRD-PARTY HARDWARE, COMPANY SOFTWARE, AND ALL THIRD PARTY PRODUCTS AND/OR SERVICES ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THIRD-PARTY HARDWARE, COMPANY SOFTWARE, OR THIRD PARTY PRODUCTS AND/OR SERVICES (IN WHOLE OR IN PART) PROVIDED TO CUSTOMER BY COMPANY.

8. INDEMNIFICATION. Company will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that Third-Party Hardware infringes the United States intellectual property rights of such third party, and Company will pay those costs and damages awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If Third-Party Hardware becomes, or in Company’s opinion is likely to become, the subject of an infringement claim, Company may, at its option and expense: (a) procure for Customer the right to continue use of Third-Party Hardware; (b) modify Third-Party Hardware so that it becomes non-infringing; or (c) refund to Customer any fees prepaid by Customer under the Order Form, prorated for the amount of time remaining in the applicable term, and terminate the applicable Order Form by written notice to Customer. Notwithstanding the foregoing, Company will have no obligation with respect to any infringement claim to the extent based upon (i) any use of Third-Party Hardware not in accordance with this Agreement or for purposes beyond the scope set forth in the applicable documentation, (ii) any use of any release of Third-Party Hardware other than the most current release made available to Customer, (iii) any modification of Third-Party Hardware by any person other than Company or its authorized agents or subcontractors, (iv) any combination or integration of Third-Party Hardware with hardware, software, data, and/or technology not provided by Company, or (v) any Open Source Software and/or Third Party Software. This Section states Company’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions. Company’s obligations as set forth above are expressly conditioned upon each of the following: (a) Customer will promptly notify Company in writing of any threatened or actual claim or suit; (b) Company will have sole control of the defense or settlement of any claim or suit; and (c) Customer will reasonably cooperate with Company, at Company’s expense, to facilitate the settlement or defense of any claim or suit.

9. LIMITATION OF LIABILITY

9.1  Disclaimer. In no event will either party be liable to the other party for any consequential, indirect, exemplary, special, or incidental damages, including any loss of use, data, profits, or goodwill, arising from or relating to this Agreement, Third-Party Hardware or any other hardware, software, services or content provided hereunder, whether in contract or tort or otherwise, even if Company has been notified of the likelihood of such damages. Company will not be liable for procurement costs of substitute product or services.

9.2  Cap. The total cumulative liability of Company arising from or relating to this Agreement and Third-Party Hardware, and any other services provided hereunder, will not exceed the amount of fees paid to Company by Customer under this Agreement in the twelve (12) months preceding the circumstances giving rise to the first claim at issue, this limitation is cumulative and will not be increased by the existence of more than one incident or claim.

10. TERM AND TERMINATION

10.1  Term. This Agreement will continue to apply for the duration of the Access Term unless earlier terminated by either Customer or Company as set forth herein (the “Term”). Subscriptions will automatically renew for successive one (1) year periods at the then-current one-year rate unless either provides notice to the other of its intent not to renew the Agreement no less than ninety (90) days prior to the end of the then applicable Term. Either Party may terminate this Agreement if the other is in breach of any material obligation under this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof. Company may terminate this Agreement, effective immediately upon notice to Customer, if Customer violates any of the restrictions of Sections 2.4 or 2.6, ceases business operations, assigns its assets for the benefit of creditors, becomes bankrupt, or otherwise seeks to dispose of all or substantially all of its assets.

10.2  Effects of Termination. Upon termination or expiration of this Agreement: (a) any outstanding amounts owed by Customer to Company will become immediately due and payable; (b) all license rights granted under Section 2.5 of this Agreement will immediately cease to exist; and (c) Customer will promptly return all Third-Party Hardware purchased pursuant to Section 2.1.

10.3  Suspension of Service. If Customer fails to pay undisputed amounts in a timely fashion, Company shall have the right to suspend the Third-Party Cloud Service, without liability to Customer until such amounts are paid in full.

10.4  Survival. Sections 2.4 (Customer Restrictions), 2.6 (License Restrictions), 6 (Confidentiality), 7 (Warranty Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 10.2 (Effects of Termination), and 11 (General) will survive expiration or termination of this Agreement for any reason.

11. GENERAL

11.2  Assignments.  Neither Party may assign, delegate, or otherwise transfer (by operation of law or otherwise) this Agreement or any of its rights or obligations to a third party without the other Party’s written consent, except that either Party may assign or transfer this Agreement without such consent as a consequence of a merger, acquisition, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains.

11.3  Governing Law and Venue.  This Agreement will be governed by the laws of the State of Delaware, without giving effect to any conflict of laws principles that would cause the law of another jurisdiction to apply. Except for disputes, controversies, or claims regarding intellectual property, any dispute, controversy, or claim, whether based on contract, tort, or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out of or related to this Agreement which remains unresolved following the negotiations and escalation procedures set forth herein, shall be resolved by binding arbitration pursuant to this Section and the then-current rules and supervision of the American Arbitration Association (“AAA”). Any arbitration or litigation shall be held in the State of Delaware.

11.4 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

11.5  Severability. If any provision of this Agreement is unenforceable, such 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.

11.6  Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”

11.7  Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Any additional, different, conflicting, or inconsistent terms on any purchase order or any other document submitted by Customer are hereby expressly rejected.