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1. USE OF THE DICKSONONE SITE, THE DICKSON CONTENT AND THE SERVICES
- Your Account. To access the Services, you must create an account associated with at least one 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 with your consent or authorization. Accordingly, you must take appropriate precautions to maintain the confidentiality of your user name, password and any other credentials that may be used to access your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account credentials are lost or stolen.
- Connectivity. You are responsible for planning, directing, supervising, obtaining and maintaining, at your sole expense, the system design, programming, and implementation, including all hardware, software, equipment, devices and services (including, without limitation, telecommunication services) that you require to access and use the DicksonOne Site, the Dickson Content and the Services. We are not responsible for and have no liability with respect to design or implementation of the system or selection of appropriate computer hardware or software, including for the selection, purchase, maintenance or proper functioning of any such hardware, software, equipment, devices and services; provided that nothing herein limits our responsibilities regarding any Product arising under the purchase agreement relating thereto. You are responsible for your own configurations, programming, and costs. We are not responsible for any lack of connectivity between your company network and the Internet, wherever the user is located.
- Monitoring Systems. You acknowledge and agree that the Services
may fail from time to time, and that you use the DicksonOne Site, the
Dickson Content, and the Services at your sole risk. Accordingly, we
strongly recommend that you obtain and implement robust environmental
monitoring systems of which the Services and any related Products are
merely a part and which are designed to ensure that no Inventory is
lost, damaged or otherwise harmed or compromised in any way as a result
of any failure of the Services or any such Product. We shall have no
liability or obligation whatsoever for any loss or compromise of or
damage or harm to, or that otherwise relates in any way to, any
- Notification Service Substitution. We may sever from the Services your SMS and voice alerts (a “Notification Service Substitution”). This is ordinarily due to prohibitive SMS and voice alert expense levels in affected regions, but this is not the only reason and we reserve the Notification Service Substitution right based in our sole discretion. In the event of a Notification Service Substitution, you will need to (i) acquire and successfully configure an equivalent SMS and voice alert account and services at your sole cost and (ii) we will no longer be responsible for the cost of your SMS and voice alert services or the services in providing SMS and voice alerts to you.
- Support. We will make reasonable efforts to provide you basic technical and usage support for DicksonOne products via telephone and email. (We will determine, in our sole discretion, what constitutes basic support.) Any additional advanced support, including customized account setup and configuration and any other support that we deem in our sole discretion to be outside the scope of the basic support, 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 and for any other purpose as contemplated hereunder. We do not provide support for services provided by the substitute notification provider.
- Third Party Materials. We may provide access to or information regarding third-party websites, products, services, or resources. We shall not be responsible in any way for or in connection with, and we do not endorse or recommend, any such website or any related content or Product.
2. CHANGES TO THE SERVICES
We may change, modify, or discontinue any part or all of the Services, the Dickson Content or the DicksonOne Site, or change or remove features or functionality of any of the foregoing, at any time and from time to time. We may set limitations on the amount of notifications sent from your system. YOU WILL UNDER NO CIRCUMSTANCES RECEIVE ANY REFUND OF FEES PAID HEREUNDER AS A RESULT OF OR IN CONNECTION WITH ANY SUCH CHANGE, MODIFICATION, DISCONTINUATION, REMOVAL OR ADDITION.
3. SECURITY AND DATA PRIVACY
- Security. 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.
4. FEES AND PAYMENT TERMS
- You may elect to purchase a subscription to the Services on a monthly, annual, three-year or five-year term.
- We will invoice you for the amount of the applicable Fee when you purchase (or renew) your subscription, and you will pay such invoice within thirty (30) days. At or before the end of your annual subscription (including, without limitation, any renewal thereof), we will notify you of the terms (including, without limitation, the then-current Fees) under which you may renew your annual subscription for another year (or we will notify you that we elect not to offer any such renewal).
- In the event of a Notification Service Substitution, there will be no reduction in your Fees.
- Monthly Device Charge. You will be charged a fee of $18/month for each of the first five devices and $6/month for each device above five connected to the DicksonOne Compliant service.
- Annual Device Charge. You will be charged a fee of $999/year for the first five devices and $60/year for each device above five connected to the DicksonOne Compliant service.
- Early Termination Fee. Should you not complete the term of your agreement (3 years or 5 years), you will be responsible to repay the amount of the discount received on the initial device purchase. This fee will be charged to the credit card used for the monthly device charge or invoiced upon notice of termination by the customer.
- Right to Terminate. Upon notice to you, we may terminate (or elect not to renew) your subscription to the Services, effective as of the end of your then-current monthly or annual subscription. Additionally, we may terminate your subscription immediately upon notice to you at any time upon any occurrence or event, or the satisfaction of any condition, that would authorize us to suspend the Services. You may terminate your subscription at any time upon notice to us. Termination will not entitle you to any refund of Fees paid hereunder. Upon termination of your subscription, we may prevent your access to or use of the DicksonOne Site, the Dickson Content and the Services. We may, but will not be obligated to, retain Your Content. If we retain Your Content, we will make it reasonably available to you upon request (provided that you are not in breach hereof).
7. PROPRIETARY RIGHTS
- Dickson Content.
- Subject to the license granted to you below, as between Dickson and you, Dickson retains all right, title and interest in and to all Dickson Content, all copies thereof and all intellectual property or other rights therein or relating thereto, including, without limitation, any such rights arising under any United States, foreign or other laws relating to copyrights, patents, trade secrets or trademarks. You may not remove, alter or block any copyright or other proprietary notice on the DicksonOne Site or any Dickson Content. Dickson reserves all rights not expressly granted herein.
- Your Content.
- As between you and us, you own all right, title, and interest in and to Your Content. You grant us the irrevocable, worldwide, nonexclusive, assignable, sublicensable right to use, copy, distribute, display, perform and disclose Your Content (i) to provide the Services to you, (ii) to comply with any request of a governmental or regulatory body (including subpoenas or court orders), and (iii) to run statistical analyses or for any other internal research, development and other purposes.
- Suggestions and Feedback. If you provide any suggested improvements or modifications to the Services, the Dickson Content or the DicksonOne Site or other feedback regarding the foregoing to us or our affiliates, you hereby grant us a nonexclusive, irrevocable, perpetual, worldwide, royalty-free, fully-paid-up license to use, commercialize and otherwise exploit such suggestions in any way and for any purpose. Such license may be assigned, sublicensed or hypothecated in any way or by any means, without restriction of any type or nature.
- Reviews. You may post reviews of the Services, so long as such reviews are not illegal, obscene, threatening, defamatory, injurious to third parties or otherwise objectionable and do not contain software viruses or other types of malware, 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. Dickson reserves the right, but does not have an obligation, to remove or edit any reviews or other content that do not comply with this paragraph.
- By Dickson. Dickson shall defend you against any claim by any third party that alleges that the Service infringes any patent or other intellectual property right (other than any claim of infringement based on (i) the combination, operation or use of the Service with any other product, system, equipment, software or device not purchased from Dickson or any affiliate thereof or (ii) the use of the Service for any purpose or in any manner not specifically recommended by Dickson) and shall pay any settlement of such claim or any damages awarded in any final judgment entered with respect to such claim, provided that you comply with the requirements of paragraph 8(c) that relate to such claim.
- Process. If a party hereto (the “Indemnified Party”) receives a third-party claim that the other party hereto (the “Indemnifying Party”) is obligated under paragraph 8(a) or paragraph 8(b) to defend, the Indemnified Party shall promptly notify the Indemnifying Party of such claim in writing (provided that such notice shall be deemed to be timely provided so long as any delay thereof does not prejudice the Indemnifying Party) and shall tender sole control of the defense and settlement of such claim to the Indemnifying Party. The Indemnifying Party shall promptly assume such defense, at its sole expense, using counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s sole expense, in such defense. The Indemnifying Party shall not settle any claim without the Indemnified Party’s written consent, not to be unreasonably withheld, delayed or conditioned. The Indemnified Party may, but shall have no obligation to, participate in the defense of any claim at its expense; provided that the Indemnifying Party shall promptly reimburse the Indemnified Party for any defense costs or expenses incurred if the Indemnifying Party fails to vigorously defend the claim at all times until such claim is fully resolved.
9. NO WARRANTIES
- You acknowledge and agree that use of the Services, the Dickson Content and the DicksonOne Site is at your sole risk. The Services, the Dickson Content and the DicksonOne Site and all maintenance, support or other services that relate in any way thereto are provided "AS IS," without warranty of any kind, and Dickson, its affiliates and their respective licensors, suppliers and service providers expressly disclaim all warranties, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.
- Without limiting the disclaimer provided in paragraph 9(a)(i)
- Dickson does not warrant that the functions contained in the Services, the Dickson Content or the DicksonOne Site will meet your requirements, that the operation thereof will be uninterrupted or error-free or that errors or specification non-conformities therein will be corrected.
- Dickson does not warrant or make any representations regarding the use or the results of the use of the Services, the Dickson Content or the DicksonOne Site.
- You are solely responsible for all settings and information relating to alarms or alerts issued in connection with the Services, including, without limitation, (i) setting the environmental thresholds that trigger alarms or alerts and (ii) ensuring that all telephone numbers, email addresses and other information used to transmit any remote alerts are at all times current.
10. LIMITATIONS OF LIABILITY
12. PRODUCT TERMS OF SALE
You acknowledge that, in connection with your purchase or lease of Products, Dickson, an affiliate thereof, or any reseller, distributor or other person in Dickson’s or such affiliate’s chain of sale or distribution provided you with (or with access to) terms of sale (“Product Terms”). The purchase or lease of such Products (including, without limitation, all rights, remedies, duties, liabilities and obligations of the buyer and seller of the Product, respectively) shall be governed in all respects solely by the (i) Product Terms and (ii) the designation or identification of the Product(s) (by Dickson product number or other means acceptable to Dickson), the quantity thereof ordered, the price thereof, and the target delivery date in any purchase order submitted by Customer and accepted by Dickson, such affiliate thereof or such reseller, distributor or other person in Dickson’s or such affiliate’s chain of sale or distribution. ANY TERMS THAT YOU OR ANY OF YOUR AFFILIATES PROVIDE TO DICKSON, ANY AFFILIATE THEREOF, OR ANY RESELLER, DISTRIBUTOR OR OTHER PERSON IN DICKSON’S OR SUCH AFFILIATE’S CHAIN OF SALE OR DISTRIBUTION, INCLUDING, WITHOUT LIMITATION, ANY TERMS INCORPORATED INTO, ATTACHED TO OR REFERENCED IN ANY PURCHASE ORDER, ACKNOWLEDGEMENT OR COMMUNICATION, SHALL BE OF NO FORCE OR EFFECT WHATSOEVER.
- Independent Contractors. 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.
- “Content” means software, data, text, audio, video, images or other content.
- “Dickson Content” means Content we or any of our affiliates use, disclose or make available in connection with the Services, on the DicksonOne Site or otherwise, including documentation, software and data, or to which you receive access as a result of your relationship with us.
- “DicksonOne Site” means www.dicksonone.com, www.dicksondata.com, and any successor or related site designated by us.
- “Fees” means, as of any time, the then-current fees for the Services.
- “Inventory” means any materials or inventory of any type stored by or for you or any other person or entity that uses the Services.
- “Notification Service Substitution” means when your DicksonOne SMS and Voice notifications are replaced by a third-party voice and SMS alerts notification provider (“Provider”).
- “Order Form” means the sales, order or other form that the customer hereunder uses to purchase Services.
- “Product” means any product that you or any of your affiliates purchase or otherwise obtain directly or indirectly (through any channels of sale or distribution) from Dickson or any affiliate thereof to which the Services relate, including, without limitation, any Product that generates environmental data that is monitored, stored or analyzed as part of the Services, or that may be controlled (including, without limitation, by entering settings) using the Services.
- “Services” means any services made available by us or our affiliates on the DicksonOne Site that you purchase.
- “Term” means the period during which you maintain an active subscription to the Services.
- “Your Content” means environmental data uploaded by any of your Products for storage or processing using the Service.