1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Infiswift will provide you with access to Infiswift’s proprietary “AdminPortal” internet of things platform for connecting and managing devices and cloud services found at https://adminportal.infiswift.tech (“the Services”) through the internet. The Services are subject to modification from time to time at Infiswift’s sole discretion, for any purpose deemed appropriate by Infiswift. Infiswift will use reasonable efforts to give you prior written notice of any such modification. In order to connect your microcontroller-based devices and/or endpoints that are capable of hosting firmware and communicating with other devices (“Devices”) to the Services and to each other, you may also need to download certain Infiswift software and/or firmware from Infiswift’s website (“Firmware”) or third party firmware onto those Devices. Subject to the terms and conditions of this Agreement, Infiswift grants you a limited, non-exclusive, non-transferable, license during the term of this Agreement to download and install the Firmware on such Devices solely in order to allow them to access the Services.
1.2 Infiswift will undertake commercially reasonable efforts to provide support and maintenance services in accordance with Infiswift’s then-applicable standard support policies. Notwithstanding the foregoing, Infiswift reserves the right to suspend your access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event you are in breach of this Agreement, including failure to pay any amounts due to Infiswift.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 The Services may include certain software applications, such as applications intended for specific verticals (e.g. solar monitoring or agriculture); any such applications are deemed part of the Services and are subject to the terms of this Agreement. You agree to be bound by any additional End-User Software Agreements in connection with such software applications.
2.2 You will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data (including any Firmware) related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); copy, modify, translate, or create derivative works based on the Services or Software; use the Services or Software for time sharing or service bureau purposes or for any purpose other than its own use for the benefit of End Users; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws, intellectual property, consumer and child protection, obscenity or defamation laws).
2.3 You will cooperate with Infiswift in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Infiswift may reasonably request. You will also cooperate with Infiswift in establishing a password or other procedures for verifying that only your designated employees have access to any administrative functions of the Services.
2.4 You hereby agree to indemnify and hold harmless Infiswift against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of Services. Although Infiswift has no obligation to monitor the content provided by you or your use of the Services, Infiswift may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.5 You will be responsible for maintaining the security of your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account with or without your knowledge or consent. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, devices, modems, hardware, server, software, operating system, networking, and web servers.
2.7 You acknowledge and agree that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Infiswift is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. You are solely responsible for procuring any and all rights necessary to access Third Party Services and for complying with any applicable terms or conditions thereof. Infiswift does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between you and a third party provider is solely between you and such third party provider and is governed by such third party’s terms and conditions.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Except as expressly set forth herein, Infiswift (and its licensors, where applicable) will retain all intellectual property rights relating to the Service, and/or the Software. You hereby grant to Infiswift a non-exclusive, perpetual, irrevocable, worldwide, transferable license to use and otherwise exploit in any way any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any third party relating to the Service and/or the Software (“Feedback”), and you agree not to disclose Feedback to any third party. This Agreement does not convey to you any rights of ownership in or related to the Service, Software, or any intellectual property rights. In any event, Infiswift may collect data with respect to your use of the Services and may use such data in aggregated and de-identified form.
4.1 You may terminate your account and this Agreement at any time by emailing Infiswift at firstname.lastname@example.org. Upon any termination, all Fees accrued up through and including the date of termination will become immediately due and payable. You will not be entitled to a refund for any pre-paid Fees. All licenses will terminate thirty days (ten in the case of non-payment and immediately in the case of a breach of Section 1) after notice of any breach by you remaining uncured at the end of such notice period. A license will also terminate upon the expiration of any applicable license period as has been expressly agreed to by Infiswift.
4.2 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, intellectual property rights, warranty disclaimers, and limitations of liability.
5. CLIENT SOFTWARE SECURITY
Infiswift represents and warrants that it will not knowingly include, in any Infiswift software released to the public and provided to you hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, or damage the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Infiswift fails to comply with the warranty in this Section, you may promptly notify Infiswift in writing of any such noncompliance. Infiswift will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide you with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting it is not established during such period, you may terminate this Agreement as your sole and exclusive remedy and Infiswift’s sole and exclusive liability for such noncompliance.
6. WARRANTY DISCLAIMER
EXCEPT FOR THE REPRESENTATION AND WARRANTY EXPRESSLY SET FORTH IN SECTION 6, THE SOFTWARE, SERVICES, INFISWIFT PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. INFISWIFT (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
IN NO EVENT WILL INFISWIFT (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR THE DELAY OR INABILITY TO USE THE SERVICES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS, LOSS OF DATA, OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFISWIFT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF INFISWIFT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE HUNDRED DOLLARS, OR (ii) THE FEES PAID TO INFISWIFT HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE SERVICES ARE NOT DESIGNED, INTENDED, OR CERTIFIED FOR USE IN COMPONENTS OF SYSTEMS INTENDED FOR THE OPERATION OF WEAPONS, NUCLEAR INSTALLATIONS, AVIATION, LIFE SUPPORT COMPUTERS OR EQUIPMENT, HAZARDOUS SUBSTANCES MANAGEMENT, OR FOR ANY OTHER DANGEROUS APPLICATION IN WHICH THE FAILURE OF THE SERVICES COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR. YOU MAY NOT USE THE SERVICES IN CONNECTION WITH SUCH EQUIPMENT OR APPLICATION
8. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, you may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing you acknowledge and agree that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. You represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Infiswift are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Infiswift’s prior written consent. Infiswift may transfer and assign any of its rights and obligations under this Agreement with written notice to you. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Infiswift in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Infiswift will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Contra Costa County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Any dispute, claim or action brought under this Agreement will take place on an individual basis: class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND INFISWIFT ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.You agree to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Infiswift. Infiswift is permitted to disclose that you are one of its customers to any third-party at its sole discretion.
Last updated: March 19th, 2018