USE OF THE DICKSONONE SITE AND THE SERVICESGeneral. You may access and use the DicksonOne Site and the Services in accordance with these Site Terms and any Service Level Agreements that may apply. You will adhere to all laws, rules, and regulations applicable to your use of the DicksonOne Site or the Services.
To access the Services, you must create an account associated with a valid e-mail address. You may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of these Site Terms, we and our affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You are responsible for maintaining the confidentiality of your account information and password.
When you visit the DicksonOne Site, send e-mails to us, provide your e-mail address to us or otherwise communicate with us electronically, you consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the DicksonOne Site. You agree that all agreements, notices, disclosures and other communication that we provide to you electronically satisfy any legal requirement that such communications be in writing.Equipment. You are responsible for providing and maintaining, at your own risk, option and expense, all hardware, software and communication lines compatible with and required to access and use the DicksonOne Site and the Services. We are not responsible for and have no liability with respect to the proper functioning of any such equipment. The DicksonOne Site and the Services are not a substitute for a robust internal environmental monitoring system and you are responsible for putting in place proper backup and reserve systems. We reserve the right to change the configuration at any time, so you are encouraged to visit the DicksonOne Site and review these Site Terms regularly. Support. We provide basic technical and usage support via telephone and email at no additional cost. Any additional advanced support including, without limitation, customized account setup and configuration, may be provided, at our sole discretion, for an additional fee. We may access your DicksonOne Site account at any time and from time to time to provide requested support and assistance. Third Party Content. Third Party Content, such as software applications provided by third parties, may be made available directly to you by other companies or individuals under separate terms and conditions, including separate fees and charges. Because we may not have tested or screened the Third Party Content, your use of any Third Party Content is at your sole risk.
We may provide, or third parties may provide, links to other websites or resources. We have no control over such websites and resources and are not responsible for the availability of such websites and resources and we do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. We are not liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.Acceptable Use. You may not use, or encourage, promote, facilitate or instruct others to use, the Services or the DicksonOne Site for any illegal, harmful or offensive purpose or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive. Prohibited activities or content include, but are not limited to, illegal activities, harmful or fraudulent activities, infringing content, offensive content and harmful content. We reserve the right to remove from the DicksonOne Site any materials that, in our sole discretion, may be illegal, may subject us to liability, may violate these Site Terms or are, in our sole discretion, inconsistent with the purpose of the DicksonOne Site.
We reserve the right, but do not assume the obligation, to investigate any violation of these Site Terms or any misuse of the Services or the DicksonOne Site and remove, disable access to or modify any content or resource that we believe violate these Site Terms. We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators or other appropriate third parties. We may also cooperate with appropriate law enforcement agencies, regulators or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing customer and network and systems information.
CHANGES TO THE SERVICES
We may change, modify or discontinue any part or all of the Services or change or remove features or functionality of the Services from time to time. We will notify you of any material change to or discontinuation of the Services. We may change, discontinue or add Service Level Agreements from time to time.
SECURITY AND DATA PRIVACY
The DicksonOne Site has, what we believe to be, reasonable security measures to protect the loss, misuse and alteration of the information, data and other Content uploaded to or stored or otherwise available on the DicksonOne Site. However, we cannot guarantee that our security measures will prevent the loss, misuse or alteration of such information, data or Content or that our security measures will prevent third-party “hackers” from illegally obtaining such information, data or Content. You are responsible for properly configuring and using the Services and taking your own steps to maintain appropriate security, protection and backup of the data you upload to or store on the DicksonOne Site, which may include routine archiving of Your Content.
FEES AND PAYMENT
We calculate and bill fees and charges either monthly or annually depending on the subscription type chosen by the client. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Services as described on the DicksonOne Site or your invoice using one of the payment methods we support. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the DicksonOne Site unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services by giving you at least 30 days advance notice. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. All fees and charges payable by you are exclusive of applicable taxes and duties.
We may suspend your right to access or use any portion or all of the DicksonOne Site or the Services immediately upon notice to you if we determine: (a) your use of or registration for the DicksonOne Site or the Services (i) poses a security risk to the DicksonOne Site or the Services or any third party, (ii) may adversely impact the DicksonOne Site or the Services or the systems or content of any other Dickson customer, (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be fraudulent; (b) you are in breach of these Site Terms, including if you are delinquent on your payment obligations for more than 15 days; or (c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
If we suspend your right to access or use any portion or all of the DicksonOne Site or the Services: (a) you remain responsible for all fees and charges you have incurred through the date of suspension; (b) you remain responsible for any applicable fees and charges for any Services to which you continue to have access; and (c) we will not erase any of your content or data as a result of your suspension, except as specified elsewhere in this Agreement.
Our right to suspend your right to access or use the Services is in addition to our right to terminate your right to access or use the Services as provided in these Site Terms.
We, in our sole discretion, may terminate your account (or any part thereof), your password or your access or use of the Services and the DicksonOne Site (or any part thereof) and/or remove and discard any content within the DicksonOne Site, for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with these Site Term or the purpose of the DicksonOne Site. You agree that any termination of your account, your password or your access or use of the Services and the DicksonOne Site may be effected without prior notice, and acknowledge and agree that upon such termination we may delete your account and all related information and files in your account and/or bar any further access to such files or the DicksonOne Site. Further, you agree that we shall not be liable to you or any third-party for any termination of your access to the Services or the DicksonOne Site.
Upon any termination as described above: (a) all your rights under these Site Terms immediately terminate; (b) you remain responsible for all fees and charges you have incurred through the date of termination; and (c) you will immediately return or, if instructed by us, destroy all Dickson Content in your possession. Any provision of these Site Terms that by their nature extend beyond the termination of your account or access or use of the Services or the DicksonOne Site shall survive such termination and shall remain in effect until all such obligations are fully satisfied.
We may, but are not obligated to, provide post-termination data retrieval assistance at our sole discretion. [We anticipate maintaining your data for up to 2 years after the date your account is terminated.]
You may post reviews of the Services, so long as such reviews are not illegal, obscene, threatening, defamatory or otherwise injurious to third parties or objectionable and do not contain software viruses, political campaigning, commercial solicitations, mass mailings or any form of “spam.” You may not use a false e-mail address, impersonate any person or entity or otherwise mislead as to the origin of a review or any other convent. Dickson reserves the right, but does not have an obligation, to remove or edit any reviews or other content that does not comply with this paragraph.
INDEMNIFICATIONGeneral. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your use of the DicksonOne Site or the Services (including any activities under your Dickson account and use by your employees and personnel); (b) your breach of these Site Terms or violation of applicable law; or (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates. Process. We will promptly notify you of any claim subject to the preceding paragraph, but our failure to promptly notify you will only affect your obligations under such preceding paragraph to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
THE DICKSONONE SITE AND ALL INFORMATION, CONTENT (INCLUDING THIRD PARTY CONTENT), MATERIALS, PRODUCTS (INCLUDING ANY SOFTWARE) AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE DICKSONONE SITE, ARE PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS. WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AS TO THE OPERATION OF THE DICKSONONE SITE OR THE INFORMATION, CONTENT (INCLUDING THIRD PARTY CONTENT), MATERIALS, PRODUCTS (INCLUDING ANY SOFTWARE) OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE DICKSONONE SITE, INCLUDING ANY WARRANTY THAT THE SERVICES OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. YOU EXPRESSLY AGREE THAT YOUR USE OF THE DICKSONONE SITE AND THE SERVICES IS AT YOUR SOLE RISK. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
LIMITATIONS OF LIABILITY
WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE DICKSONONE SITE OR THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF YOUR ACCOUNT OR YOUR USE OF OR ACCESS TO THE DICKSONONE SITE OR THE SERVICES, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE DICKSONONE SITE OR THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THESE SITE TERMS OR YOUR USE OF OR ACCESS TO THE DICKSONONE SITE OR THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY TO YOU UNDER THESE SITE TERMS OR OTHERWISE WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
MODIFICATIONS TO THESE SITE TERMS
We may modify these Site Terms at any time by posting a revised version on the DicksonOne Site or by otherwise notifying you in accordance with these Site Terms. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to these Site Terms, you agree to be bound by the modified terms. It is your responsibility to check the DicksonOne Site regularly for modifications to these Site Terms.
MISCELLANEOUSConfidentiality and Publicity. You will keep Dickson Confidential Information in the strictest of confidence and may use Dickson Confidential information only in connection with your use of the Services as permitted under these Site Terms. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Dickson Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to your use of the Services. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity. Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under these Site Terms where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war. Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services. No Third Party Beneficiaries. These Site Terms do not create any third party beneficiary rights in any individual or entity that is not a party to these Site Terms. Notice. We may provide any notice to you under these Site Terms by: (i) posting a notice on the DicksonOne Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the DicksonOne Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
To give us notice under this Agreement, you must contact Dickson as follows: (i) by facsimile transmission to (630) 543-0498; or (ii) by personal delivery, overnight courier or registered or certified mail to 930 S. Westwood Ave., Addison, Illinois 60101. We may update the facsimile number or address for notices to us by posting a notice on the DicksonOne Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
“Content” means software, data, text, audio, video, images or other content.
“Dickson Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Dickson Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. Dickson Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Dickson Confidential Information.
“Dickson Content” means Content we or any of its affiliates make available in connection with the Services or on the DicksonOne Site to allow access to and use of the Services, including documentation; sample code; software libraries; command line tools; and other related technology.
“DicksonOne Site” means www.dicksondata.com, www.dicksonone.com, and any successor or related site designated by us.
“Services” means each of the web services made available by us or our affiliates, including associated application program interfaces, and another product or services provided by us under these Site Terms.
“Service Level Agreement” means all service level agreements that we offer with respect to the Services and post on the DicksonOne Site, as they may be updated by us from time to time.
“Third Party Content” means Content made available to you by any third party on the DicksonOne Site or in conjunction with the Services.
“Your Content” means Content you (a) run on the Services, (b) cause to interface with the Services, or (c) upload to the Services under your account or otherwise transfer, process, use or store in connection with your account, including, without limitation, any and all data uploaded by an environmental monitoring device.