Click Wrap Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement is between WatchWire LLC, a New York Limited Liability Company (WatchWire), and the customer agreeing to these terms (Customer).
1. Software service.
This agreement provides Customer access to and usage of an Internet-based software service, including without limitation, its features, functions, user interface, and underlying software, as specified on an order (Service).
2. USE OF SERVICE.
a. Customer Owned Data. All Customer utility data uploaded by WatchWire or provided by Customer to the Service remains the property of Customer, as between WatchWire and Customer (Customer Data). Customer grants WatchWire the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
b. Affiliates and Contractors. Customer, including its Affiliates, may enter into an order with WatchWire and its Affiliates. An Affiliate entering into an order agrees to be bound by the terms of this agreement as if it were an original party hereto. Customer may allow its Affiliates and contractors to access the Service, provided Customer is responsible for their compliance with the terms of this agreement, and use by its Affiliates and contractors must be for the sole benefit of Customer or its Affiliates. Affiliate means any company controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%.
c. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account and notify WatchWire promptly of any such unauthorized access; (iv) may use the Service only in accordance with the Service’s user guide and applicable law; and (v) to the extent that Customer utilizes the Service’s automated utility data collection feature, Customer must: (a) have e-billing enabled with its utility provider(s), (b) provide WatchWire with usernames and passwords for the utility accounts, and (c) provide a letter of authorization to WatchWire to access such utility data.
d. WatchWire Support. WatchWire must provide customer support for the Service under the terms of WatchWire’s Service Level Agreement (SLA), which is located at https://watchwire.ai/support-maintenance-terms/ .
e. Additional Services. WatchWire may provide onboarding and implementation services as further set forth in an order.
3. WARRANTY DISCLAIMER.
THE SERVICE IS PROVIDED ‘AS IS’ WITHOUT WARRANTY. WATCHWIRE DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE WATCHWIRE TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, WATCHWIRE DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. If Customer is exempt from sales tax, Customer will provide WatchWire with its sales tax exemption certificate. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. Overdue payments will bear interest from the due date at the rate of the lower of 1.5% per month or the maximum legal rate, and Customer is responsible for WatchWire’s reasonable costs of fee collection.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information (Confidential Information). WatchWire’s Confidential Information includes, without limitation, the Service, and pricing information. Customer’s Confidential Information includes, without limitation, the Customer Data.
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
6. WatchWire PROPERTY.
a. Reservation of Rights. The software, workflow processes, user interface, designs, and other technologies provided by WatchWire as part of the Service are the proprietary property of WatchWire and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with WatchWire. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. WatchWire reserves all rights unless expressly granted in this agreement.
b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy, frame, or mirror any feature, function, or graphic for competitive purposes.
c. Aggregated and Statistical Data. During and after the term of this agreement, WatchWire may use all anonymized and statistical data within the Service for purposes of quality control/enhancing the Service, aggregated statistical analysis, technical support and other internal business purposes. Additionally, WatchWire may make statistical data related solely to the performance of the Service publicly available, provided that such data does not identify Customer, and there is no means to re-identify Customer.
7. TERM and Termination.
a. Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).
b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c. Return of Customer Data.
i. Within 60 days after termination, upon request WatchWire will make the Service available for Customer to export Customer Data as provided in Section 2(a).
ii. After such 60-day period, WatchWire has no obligation to maintain the Customer Data and may destroy it.
d. Return WatchWire Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay WatchWire for any unpaid amounts and destroy or return all property of WatchWire. Upon WatchWire’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
e. Suspension for Violations of Law. WatchWire may suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law. WatchWire will make commercially reasonable efforts to attempt to contact Customer in advance.
f. Suspension for Non-Payment. WatchWire may suspend the Service if Customer is more than 30 days late on any payment due pursuant to an order.
8. LIABILITY LIMIT.
a. Exclusion of Indirect Damages. WatchWire is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.
b. Total Limit on Liability. Except for WatchWire’s indemnity obligations, WatchWire’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
a. Defense of Third-Party Claims. WatchWire will defend or settle any third-party claim against Customer to the extent that such claim alleges that WatchWire technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies WatchWire of the claim in writing, cooperates with WatchWire in the defense, and allows WatchWire to solely control the defense or settlement of the claim.
i. Costs. WatchWire will indemnify and hold harmless Customer from infringement claim defense costs it incurs in defending Customer under this indemnity, and WatchWire negotiated settlement amounts, and court-awarded damages.
Process. If such a claim appears likely, then WatchWire may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If WatchWire determines that none of these are reasonably available, then WatchWire may terminate the Service and refund any prepaid and unused fees.
ii. Exclusions. WatchWire has no obligation for any claim arising from: WatchWire’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by WatchWire. This section contains Customer’s exclusive remedies and WatchWire’s sole liability for intellectual property infringement claims.
b. By Customer. If a third party claims against WatchWire that any part of the Customer Data infringes or violates that party’s patent, copyright, or other right, Customer will defend WatchWire against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees arising from that claim, provided that WatchWire promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim. Customer will not consent to the entry of any judgement or enter into any settlement or compromise affecting WatchWire, to the extent that the judgement, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of WatchWire and/or otherwise involves more than the payment of money by Customer, without the prior written consent of WatchWire.
10. GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the State of New York (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for New York County, New York, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its reasonable attorneys’ fees and costs from the other party.
11. OTHER TERMS.
a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by WatchWire. Notwithstanding the foregoing paragraph, in the event that the parties have agreed to and signed a subscription services agreement with respect to the Service (SSA), such SSA will govern the parties’ rights and obligations with respect to the Service instead of this agreement.
b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party, or at any time to an Affiliate.
c. Independent Contractors. The parties are independent contractors with respect to each other, and neither party is an agent, employee, or partner of the other party or the other party’s Affiliates.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for its non-performance due to events beyond its reasonable control, including but not limited to weather events and disasters, labor disruptions and disruptions in the supply of utilities.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
f. No Additional Terms. WatchWire rejects additional or conflicting terms of a Customer’s form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h. Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Publicity. Customer agrees to allow WatchWire to use its name and logo in WatchWire’s marketing communications and materials, in accordance with Customer’s trademark guidelines and policies.
j. Feedback. Customer is not obligated to provide WatchWire with any suggestions or feedback about the Service, but if Customer elects to do so, WatchWire owns such feedback, and may use and modify feedback for any purpose, including developing and improving the Service, without any liability, restriction or payment to Customer.
k. Compliance. Customer must comply with all applicable laws in using the Service.