PM Power Products Software License
and Cloud Portal Terms of Use Agreement
February 7, 2019
PLEASE READ THIS COMBINED SOFTWARE LICENSE AND TERMS OF USE AGREEMENT (“TERMS OF USE”) CAREFULLY. BY CLICKING THE “ACCEPT” BUTTON OR ACCESSING OR USING THE PM POWER PRODUCTS, LLC (“PM POWER PRODUCTS” OR “WE”) SOFTWARE OR HOSTED SERVICES (AS DEFINED BELOW) , YOU REPRESENT THAT (1) YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PM POWER PRODUCTS, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU REPRESENT, AND TO BIND THAT ENTITY TO THESE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER IN THE COURSE OF THE REGISTRATION PROCESS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THESE TERMS OF USE, YOU MUST NOT ACCESS OR USE THE SOFTWARE OR THE HOSTED SERVICES. PM Power Products and you may be referred to individually as a “Party” and collectively as the “Parties”.
These Terms of Use will be effective as of the date you accept them as described above and will continue in effect thereafter until terminated in accordance with their terms.
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.
PLEASE NOTE THAT THESE TERMS OF USE ARE SUBJECT TO CHANGE BY PM POWER PRODUCTS IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, PM Power Products will make an updated copy of these Terms of Use available at: www.pmpowerproducts.com/legal/license-and-terms-of-service (the “Website”). We will also update the “Last Updated” date at the top of these Terms of Use. If we make any material changes, and you have registered with us to create an Account (as defined in Section 1.2 below) we will also send an email to the email address we have on file for you. Any changes to these Terms of Use will be effective immediately for new users of the Cloud Service and will be effective thirty (30) days after posting notice of such changes on the Website for existing users. PM POWER PRODUCTS may require you to provide consent to the updated Terms of Use in a specified manner for further use of the Cloud Services to be permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Cloud Services. Otherwise, your continued use of the Cloud Services constitutes your acceptance of such change(s).
In addition, your use of certain services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms of Use or will be presented to You for your acceptance when you sign up to use the particular service. If these Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the particular service to which they apply. These Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement”.
1. OVERVIEW
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).
1.2 Accounts.
(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.
2.2 PM Power Products Software. Use of any software and associated documentation that is made available via download or the Cloud Service or that is embedded in any PM POWER PRODUCTS hardware (“Software”) is governed by these Terms of Use, and by any applicable license agreement made available by PM POWER PRODUCTS in connection with, or otherwise accompanying, the Software. Such license terms may be posted with the Software downloads or at the website page where the Software can be accessed. By accessing, using, downloading or installing any Software that is accompanied by or includes a license agreement, you are agreeing to be bound by the terms of such license agreement. At no time will PM POWER PRODUCTS provide you with any tangible copy of our Software. PM POWER PRODUCTS shall provide access to the Software via electronic transfer or download and shall not deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section, tangible media shall include, but not be limited to, any tape, disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the license agreement, the license agreement shall take precedence in relation to that Software. When no separate license agreement is made available with respect to particular Software, then the license terms in these Terms of Use will apply to such Software. Subject to the terms and restrictions set forth in this Agreement, PM Power Products grants you a limited, non-exclusive, non-transferrable and non-sublicenseable license to use the Software for the sole purposes of embedding the PM POWER PRODUCTS application programming interface (“API”) and underlying content into your software so that your client software can interface with PM Power Products devices and/or web services and to use the StaffAlerter premise-based Emergency Notification System and Command and Control System to manage events and processes. In order to use and access the API, you must register for an API account with PM Power Products . After completing your registration, which includes a description of how you intend to use the API, and agreeing to these Terms of Use, you will be issued confidential access to the API. If the API or other Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. Subject to your compliance with this Agreement, PM POWER PRODUCTS grants you a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license to use the Software for the sole purpose of enabling you to use the StaffAlerter appliance and the Cloud Services in the manner permitted by this Agreement. Some Software may include open source components that are offered under a separate open source license that we will make available to you. Your use of the open source components of the Software is governed by the terms of the applicable open source license agreement and not by these Terms and Conditions.
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.
2.6 Additional Requirements for API Use. As a condition of using and embedding the API into your software, you must include (i) a highly visible explanation through text and (ii) an authorized PM Power Products logo if applicable. Specifically excluded from the license set forth in these Terms of Use are any uses or operation of the API in connection with (a) any software other than stated and described in your registration; and (b) any products, systems, applications or hardware other than devices manufactured or offered by PM POWER PRODUCTS. You may not charge fees to end customers or other third parties for the use of the API except if expressly agreed by you and PM POWER PRODUCTS.
3. DEVICES
3.1 Device Policy. You are solely responsible and liable for your Devices, and for supporting the Devices. On each Device in which you use the Cloud Service, you shall prominently display and comply with a privacy policy that includes a full, accurate and clear disclosure regarding PM Power Product’s collection, use and distribution of personal information via the Cloud Service in accordance with our Privacy Policy, available at www.pmpowerproducts.com/legal/privacy. You represent and warrant that your Device will not: (i) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) violate any laws or regulations (including any privacy laws) or any obligations or restrictions imposed by any third party; (iii) be harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive, or promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, or be otherwise objectionable; (iv) be harmful to minors in any way; (v) contain any computer viruses, worms, or any software intended to damage or alter a computer system or data; (vi) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, text messages, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (vii) offer or promote services that may be damaging to, disparaging of, or otherwise detrimental to PM POWER PRODUCTS or its licensors, licensees, affiliates and partners.
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. OWNERSHIP
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.
4.2 Trademark License and Brand Features. For purposes of these Terms of Use, “Trademarks and Brand Features” shall be defined as the trademarks, trade names, service marks, logos, and domain names, along with any other distinctive brand features, of each party. PM POWER PRODUCTS hereby grants to you a non-transferable, non-sublicenseable, non-exclusive, limited license during the term of these Terms of Use to display PM POWER PRODUCTS’s Trademarks and Brand Features solely for the purpose of promoting or advertising that you use the PM POWER PRODUCTS Software in accordance with these Terms of Use. You hereby grant to PM POWER PRODUCTS a nontransferable, nonexclusive license during the term of these Terms of Use to use your Trademarks and Brand Features to advertise that you are using the PM POWER PRODUCTS Software and to the extent as may be necessary for PM POWER PRODUCTS to provide you with the PM POWER PRODUCTS Software. You understand and agree that PM POWER PRODUCTS has the sole discretion to determine whether your use of PM POWER PRODUCTS Trademarks and Brand Features is in accordance with PM POWER PRODUCTS’ standards for Trademark and Brand Features usage and that you will immediately cease or modify such usage as directed by PM POWER PRODUCTS. Except as set forth in this Section 7, nothing in these Terms of Use shall grant or shall be deemed to grant to one party any right, title or interest in or to the other party’s Trademarks and Brand Features. When you promote your Device or Service, you must not imply that your Device or Service is created or endorsed in any manner by PM POWER PRODUCTS, although you may state facts (e.g., the Device or Service is used with the Cloud Service). You agree, however, not to remove, obscure, distort, or alter any of our Trademarks and Brand Features or display our Trademarks and Brand Features in any way that is misleading, defamatory, infringing, libelous, disparaging, obscene, or otherwise objectionable to PM POWER PRODUCTS. All use by you of the Trademarks and Brand Features (including any goodwill associated therewith) will inure to the benefit of PM POWER PRODUCTS. At no time during or after the term of this Agreement will you challenge or assist others to challenge PM POWER PRODUCTS’ Trademarks and Brand Features (except to the extent such restriction is prohibited by law) or the registration thereof by PM POWER PRODUCTS, nor will you attempt to register any trademarks that are confusingly similar in any way to any PM POWER PRODUCTS Trademarks and Brand Features. You must submit to us a copy or image of any media release or advertising that includes any of PM PRODUCTS Trademarks and Brand Features by emailing us at marketing@pmpowerproducts.com, and any such use is subject to our prior approval.
5. RELATIONSHIP
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.
7.4 Effect on Termination. Upon termination of this Agreement: (i) all rights and licenses granted will terminate immediately; (ii) any and all payment obligations, if any, will be due; (iii) you shall immediately cease all use and display of any and all PM POWER PRODUCTS Trademarks and Brand Features; (iv) you shall immediately cease all use of the PM POWER PRODUCTS Properties with the exception of prior Software releases installed by existing customers. and (v) each party will promptly return to the other party all Confidential Information of such party in its possession, custody, or control. If you desire to terminate the Terms of Use, You must remove the PM POWER PRODUCTS Software and accompanying configuration and documentation from your software and hardware.
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. CONFIDENTIALITY
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
9.1. THE PM POWER PRODUCTS PROPERTIES ARE PROVIDED “AS IS,” “WHERE IS,” “WITH ALL FAULTS” AND WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. PM POWER PRODUCTS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE, AND NON-INFRINGEMENT. SOME ASPECTS OF THE PM POWER PRODUCTS PROPERTIES ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED IN ANY MANNER. WE DO NOT REPRESENT, WARRANT, OR MAKE ANY CONDITION THAT THE PM POWER PRODUCTS PROPERTIES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PM POWER PRODUCTS PROPERTIES, ALL OF WHICH IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOUR USE OF THE PM POWER PRODUCTS PROPERTIES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM USE OF THE PM POWER PRODUCTS PROPERTIES INCLUDING, BUT NOT LIMITED TO, FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM OUR SERVICES WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS OF USE.
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.
9.3 Limitation of Liability. PM POWER PRODUCTS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR RELIANCE DAMAGES RELATED TO THESE TERMS OF USE OR THE PM POWER PRODUCTS PROPERTIES. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER YOU WERE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY UNDER THESE TERMS OF USE OR RELATED TO THE PM POWER PRODUCTS PROPERTIES EXCEED THE AMOUNTS PAID BY YOU TO PM POWER PRODUCTS DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT(S) GIVING RISE TO LIABILITY HEREUNDER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY SET OUT HEREIN ARE FUNDAMENTAL TO THE TRANSACTIONS CONTEMPLATED HEREIN AND THAT PM POWER PRODUCTS WOULD PRICE ITS SOFTWARE AND SERVICES SIGNIFICANTLY HIGHER WITHOUT SUCH LIMITATIONS.
10. INDEMNIFICATION
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
11.1In 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. GENERAL.
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 service@pmpowerprducts.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.