This Software Subscription Agreement (“Software Subscription Agreement”) is incorporated by reference into the executed ordering document (such as a sales order form, proposal, or quote) to which they are attached or otherwise incorporated (the “Order Form”) (collectively referred to as “Agreement”). To the extent of any conflict or inconsistency between a provision in the Order Form and a provision in this Software Subscription Agreement, the former shall prevail.
The Agreement constitutes a binding agreement between Wint-WI, Inc. a Delaware corporation with its principal place of business at 168 Main Street, Goshen, NY 10924 (or, if a different Wint-WI entity is the contracting party in the Order, then that Wint-WI entity) (“Wint”)and the customer specified in the Order Form (“Customer”), regarding Customer’s access to and use of Wint’s Edge Device and Platform (the “System”). An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement. Wint and Customer may be referred to herein as the “Parties”, and each individually as a “Party”.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Content” means any text, data, information, reports, files, images, graphics, software code, or other content.
“Customer Content” means any Content and/or Confidential Information submitted or uploaded to, or transmitted through, the Platform, or otherwise provided or made available to Wint, by or on behalf of Customer.
“Documentation” means operational guides or manuals, which Wint provides or makes available to Customer, in any form or medium. Unless the context requires otherwise, references in this Agreement to the “Platform” and Wint Edge Device shall include any associated Documentation.
“Effective Date” means the date the Order Form is signed by both Parties, unless the Order Form itself specifies a different Effective Date.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
“Location” means the location (including the building/site) specified in the Order Form, where the Wint Edge Device, Platform, and Support Services are being provided.
“Platform” means the System’s software-as-a-service (SaaS) platform.
“Plumbing Hardware” means third party plumbing hardware (e.g., valves and gaskets) supplied by Wint to Customer. Plumbing Hardware excludes the Wint Edge Device.
“Project” means the project specified in the Order Form, for which the System and Support Services are being provided.
“Subscription Scope” means any Platform usage or consumption limitations and parameters specified in the Order Form.
“Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (iii) Nonpublic Personal Information (NPI) (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations) or Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations); or (iv) any data similar to the foregoing that is protected under Laws.
“Support Services” means the Platform technical support and maintenance services found at https://Wint.ai/support-terms/. Support Services shall not be materially decreased by Wint during the Subscription Term.
“Usage Statistics” means any non-Customer-identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Platform and/or Wint Content (such as metadata, aggregated data, analytics, security findings or discoveries, etc.).
“Users” means Customer’s employees authorized by Customer to use the Platform, and for whom Customer (or Wint, at Customer’s request) has supplied a user identification and password for the Platform. Customer shall remain primarily responsible and liable for its Users’ compliance with the terms and conditions of this Agreement.
“Wint Content” means any Content (excluding Customer Content) appearing on or in, or otherwise provided or made available via the Platform by Wint.
“Wint Edge Device” means the proprietary Wint IoT Edge Device specified under an Order Form (if applicable) and in accordance with the Wint Edge Device Terms set forth in Exhibit A which Exhibit shall be applicable to this Agreement if an Order Form specifies that the Wint Edge Device will be provided to Customer.
2.1. Subscription License. Subject to the terms and conditions of this Agreement (including without limitation Customer’s payment of all applicable Fees), Wint grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right and license, during the Subscription Term (defined below), to internally access and use the Platform and Wint Content for its end-use subject to the Subscription Scope and in accordance with the Documentation. Except for the foregoing, Customer is granted no other right or license in or to the Platform or Wint Content, and any right not expressly granted is hereby reserved by Wint and its licensors. Wint may, but is not obligated to, monitor the Customer’s use of the Platform. Customer shall not use any technical or other means within, or external to, the Platform to exceed or circumvent the Subscription Scope. If the Parties agree to expand the Subscription Scope, the Parties shall execute a written addendum to the Order Form setting out the additional transactional terms therefor.
2.2. Hosting. The Platform is available to Customer via Wint’s website (currently www.Wint.ai). The Platform (and related processing) is hosted by a third-party cloud-hosting provider selected by Wint (the “Hosting Provider”), and accordingly availability of the Platform shall be in accordance with the then-current uptime commitments specified by the third-party provider.
2.3. Restrictions. As a condition to (and except as expressly permitted by) the license granted herein, Customer shall not do (or permit or encourage to be done) any of the following (in whole or in part) with respect to the Platform, Wint Content, or Wint Edge Device (a) copy, manufacture, “frame” or “mirror” such; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make such available (e.g. offering it as part of a time-sharing, outsourcing or service bureau environment) to any third party, including the Plumbing Hardware (except if such are owned by Customer); (c) publicly perform, display or communicate such; (d) modify, adapt, translate, or create a derivative work of such; (e) decompile, disassemble, decrypt, reverse engineer, or extract or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) or internal composition of such; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in such; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of such; (h) use such to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with such; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt such; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of servers/machines, Users, or endpoints that directly access or use such(sometimes referred to as ‘virtualization’, ‘multiplexing’ or ‘pooling’); (k) forge or manipulate identifiers in order to disguise the origin of any Customer Content; (l) take any action that imposes or may impose (as determined in Wint’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support such, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; or (m) use such in connection with any internal performance testing or benchmark studies of which the results are designed or likely to be published in any form or media, or otherwise made available to the public, without Wint’s prior express written approval, or otherwise disclose or publish such results.
2.4. Suspension. Wint reserves the right to temporarily suspend provision of the Platform and/or Wint Content: (a) if Customer is seven (7) days or more overdue on a payment or is otherwise in material breach of this Agreement; (b) to avoid material harm to other customers, or to the Platform, or (c) as required by Law or at the request of a governmental entity.
3.1. Support Services. Subject to Customer’s compliance with the term of this Agreement, Customer will be entitled to receive the Support Services.
3.2. Installation, Alerts and Training Services. Customer is responsible for scheduling installation and training services promptly after delivery of the Platform by Wint. In no event shall Wint be responsible or liable for any damage resulting from Customer’s failure to schedule installation and/or training services. Regardless of the provision of installation and/or training services by Wint, Customer shall at all times remain responsible to learn and understand the Platform operations, settings, options, and Wint support policies, including those related to threshold, alerts, and water shut-off in the event of unscheduled water flow.
3.3. General. With Customer’s prior written approval (not to be unreasonably withheld, conditioned, or delayed) Wint may subcontract Support Services (in whole or in part) to a third-party contractor, and without derogating from Wint’s liabilities towards the Customer under this Agreement.
4.1. Payment Terms. Customer agrees to pay Wint the fees and other charges set forth in the Order Form (the “Fees”). Except as may be expressly stated otherwise in the Order Form or these Terms all Fees: (a) are stated, and are to be paid, in US Dollars; (b) are payable in advance at the commencement of each billing cycle (except for Fees for overages, which are charged in arrears), and shall be paid within thirty (30) days of receipt of invoice unless otherwise set forth in an Order Form; (c) except as the result of an uncured breach by Wint, are non-refundable, and are without any right of set-off or cancellation; and (d) will, if not paid when due, accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by Law. Without derogating from any other remedy available to Wint under the Law and/or this Agreement, in the event of a delay of more than seven (7) days in payment after receipt of written notice of delinquency from Wint, Wint shall be entitled, at its sole discretion, to suspend and/or terminate access to the Platform.
4.2. Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, and other taxes, duties or governmental charges (except for taxes based upon Wint’s net income), as well as transportation or insurance. If Customer is required by Law to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Wint shall be increased by the amount necessary so that Wint receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
5.1. Wint Materials. As between the parties, Wint (and/or its licensors and suppliers, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to the Platform, Wint Content, the Intellectual Property Rights associated with the Wint Edge Device, and Wint Confidential Information, as well as to any feedback, suggestions, ideas, or Usage Statistics for or about the foregoing (collectively, “Feedback”); and any improvements, derivative works, and/or modifications of/to any of the foregoing (including without limitation any algorithms, analysis methods, and other techniques developed within the scope of this Agreement), regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments and/or waivers necessary or reasonably requested by Wint to ensure and/or provide Wint (and/or its designee(s)) the ownership rights set forth in this Section 5.1. For the avoidance of doubt, it is acknowledged and agreed that Wint (alone and/or together with its Affiliates and service providers) may use Customer Content in an aggregated or anonymized manner to generate Usage Statistics, as well to enhance the Platform.
5.2. Customer Content. As between the Parties, Customer is, and shall be, the sole and exclusive owner of all Customer Content and:
(a) shall ensure that no Customer Content includes or links to Sensitive Data;
(b) represents and warrants that: (i) no processing of Customer Content under this Agreement will violate any Law, proprietary right, or privacy right; and (ii) it has obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under relevant privacy Laws (if applicable), necessary to provide, make available, and otherwise expose Customer Content to Wint, its Affiliates, and the Hosting Provider;
(c) agrees not to rely on the Platform for the storage of any Customer Content whatsoever and remains solely responsible for the maintenance and backup of such.
6.1. Non-disclosure Obligations. Each Party will protect the other’s Confidential Information (defined below) from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and may disclose such Confidential Information:
(a) solely to its employees and contractors who have a need to know such Confidential Information for the foregoing purposes, and who are bound by terms of confidentiality substantially similar to those set forth herein (and the receiving Party shall be primarily liable for any breach by such persons);
(b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; and/or
(c) as reasonably necessary to comply with any applicable Law.
6.2. Exceptions. Notwithstanding anything to the foregoing Wint shall be entitled to disclose Customer’s Confidential Information to Wint’s Affiliates, the Hosting Provider (defined below), to Wint’s subcontractors under this Agreement, and if an Extended Warranty is ordered, to HSB (as defined below).
6.3. Confidential Information. “Confidential Information” means all information disclosed by one Party (and/or its Affiliates) to the other Party (and/or its Affiliates), regardless of form, which is identified as confidential or proprietary, and/or which a reasonable business person would understand to be confidential given the nature of the information and/or the circumstances of disclosure, and includes, but is not limited to, Wint pricing and payment terms, technical data, computer programs and software code (including firmware and source code), ideas, inventions, algorithms, know-how, analyses, specifications, processes, techniques, formulas, designs and drawings, and other technology and intellectual property. Confidential Information shall not include information that: (A) was already known (without restriction) to the receiving Party at the time of disclosure by the disclosing Party; (B) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (C) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (D) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.
7.1. Limited Warranty.Wint represents and warrants that (a) the Platform will perform in material conformity with its Documentation; (b) any Support Services will be provided in a professional and workmanlike manner, with reasonable skill and care and in conformance with generally accepted software industry standards; and (c) as of the start of the Initial Subscription Term, the Platform has been scanned using the most recent version of a leading commercially available virus scanning program designed to detect and remediate known viruses and other harmful and malicious code. Your sole and exclusive remedy for Wint’s breach of the foregoing warranties is that Wint will, at no cost to you, provide remedial services necessary to enable the Platform or Support Services to conform to the warranty.
7.2. Disclaimers. EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, THE PLATFORM (INCLUDING WITHOUT LIMITATION ANY REPORTS OR OUTPUT), THE Wint CONTENT, Wint EDGE DEVICE, SUPPORT SERVICES, OPTIONAL SERVICES SUCH AS THOSE SET FORTH IN SECTION 7.3, AND ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY Wint OR ITS AFFILIATES HEREUNDER (COLLECTIVELY, THE “Wint MATERIALS”) ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT) ARE HEREBY DISCLAIMED BY Wint AND ITS SUPPLIERS AND LICENSORS. FURTHER, EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, Wint MAKES NO WARRANTY (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF Wint MATERIALS; (B) THAT CUSTOMER’S USE OF Wint MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS, THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY ISSUES; (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS (E) REGARDING THE AVAILABILITY OF USE OF THE SYSTEM AT ANY LOCATION AND/OR AT ANY TIME; (F) THAT ANY MALFUNCTION OF THE PLATFORM WILL BE CORRECTED; (G) THAT THE SYSTEM WILL CONFORM WITH CUSTOMER’S EXISTING SYSTEMS; (H) THAT THE PLATFORM SHALL BE PROTECTED FROM UNAUTHORIZED ACCESS.
WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING IN THIS SECTION (DISCLAIMERS), AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, IT IS ACKNOWLEDGED AND AGREED THAT THE SYSTEM IS AN AUXILIARY SYSTEM AND DOES NOT GUARANTEE THE PREVENTION OF FLOODING OR WATER LEAKAGES, AND NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A GUARANTEE OR UNDERTAKING OF THE COMPANY TO PREVENT FLOODING, WATER LEAKAGES, OR RELATED DAMAGE. MOREOVER, AS WITH ANY PRODUCT OR SYSTEM, THE SYSTEM HAS CERTAIN LIMITATIONS AND CUSTOMER HAS READ AND AGREES TO THE SYSTEM SPECIFICATIONS AND THE LIMITATION SET FORTH AT HTTPS://Wint.AI/RESOURCES/.THE SYSTEM MAY NOT BE BUG OR ERROR FREE AND MAY SUFFER FROM TECHNICAL ISSUES AND FAILURES THAT MAY AFFECT ITS FUNCTIONALITY AND AVAILABILITY. IT IS ALSO MAY BE INTERRUPTED BY MALFUNCTIONS OF SUPPORTING SYSTEMS OF THIRD PARTIES. Wint DOES NOT GUARANTEE UNINTERRUPTED AND ERROR-FREE OPERATION OF THE SERVICES. THEREFORE, IT IS AGREED THAT Wint SHALL NOT BE LIABLE TO THE CUSTOMER AND/OR ANY THIRD PARTY IN THE EVENT THAT USE OF THE PLATFORM FAILS TO PREVENT ANY DAMAGE.
7.3. Optional Extended Warranty.Customer may optionally purchase an extended water leak protection warranty (the “Extended Warranty”) as specified in Customer’s Wint Order Form. The Extended Warranty is provided by a third-party provider, The Hartford Steam Boiler Inspection and Insurance Company (“HSB”) and shall be in accordance with the terms and conditions provided by HSB for such Extended Warranty which terms and conditions shall be provided to Customer prior to purchase. The customer’s sole and exclusive remedy with respect to the Extended Warranty shall be to file a claim with HSB in accordance with their policy. Customer understands and agrees that an insurability determination will be made solely by HSB and shall be final and binding upon Customer. The customer agrees to hold Wint harmless from any coverage determination made by HSB and for any damages exceeding any Extended Warranty policy limits and/or amounts finally awarded by HSB. Customer shall not have any recourse to Wint for the Extended Warranty and Wint shall have no liability whatsoever with respect to the Extended Warranty.
7.4. Compliance with Laws.Customer warrants that it will comply with all applicable laws, rules and regulations, particularly those related to fire suppression and safety codes.
8.1. Coverage.
Wint shall secure and maintain in full force and effect throughout the performance of the Agreement insurance coverage for:
(a) Workers’ Compensation as prescribed by Law for any claim arising out of the performance of this Agreement. The Worker’s Compensation policy will also include Employer’s Liability Insurance for any claim arising out of this Agreement with minimum limits of $1,000,000 per accident;
(b) Commercial General Liability Insurance, including Products Liability and blanket contractual liability regarding this Agreement with minimum limits of $1,000,000 per occurrence and $2,000,000 general aggregate; and
(c) Umbrella/Excess Liability with a minimum limit of $2,000,000 per occurrence and in the aggregate above the underlying Commercial General Liability.
8.2. General Insurance Requirements. All insurance shall be placed with insurers rated at least A-VIII with AM Best. All liability policies shall be written on an occurrence basis.
8.3. Insurance Certificates. If requested by the Customer, Wint shall provide Customer with certificates of insurance evidencing compliance with the above requirements.
9.1. Indirect Damages. EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 6 (CONFIDENTIALITY), GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE LOSSES OR DAMAGES; ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE; ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
9.2. Direct Damages. EXCEPT FOR CLAIMS RELATED TO BREACHES OF CONFIDENTIALITY UNDER SECTION 6 (CONFIDENTIALITY), GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, Wint’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), AND THE EXTENDED WARRANTY (FOR WHICH Wint SHALL HAVE NO LIABILITY WHATSOEVER), THE COMBINED AGGREGATE LIABILITY OF Wint AND ALL Wint AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID OR PAYABLE FOR THE PLATFORM BY CUSTOMER TO Wint UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
9.3. Exclusions. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE. IN NO EVENT WILL Wint BE LIABLE FOR ANY DAMAGES WHERE CUSTOMER OR A THIRD PARTY RETAINED BY CUSTOMER HAS INCORRECTLY INSTALLED THE Wint EDGE DEVICE, HAS OVERRIDDEN Wint IMPLEMENTED PLATFORM SETTINGS, OR AS THE RESULT OF ANY CIRCUMSTANCE THAT IS BEYOND Wint’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO, ACCESS TO THE Wint PLATFORM OR Wint EDGE DEVICE BY AN UNAUTHORIZED THIRD PARTY.
10.1. Wint Indemnity. In the event that, during the term of this Agreement or the six (6) month period thereafter, a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer’s authorized access and use of the Platform or Wint Edge Device infringes such third party’s copyright or patent (an “Infringement Claim”), Wint shall at its own expense, defend Customer against the Infringement Claim; and indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer by the court (or otherwise agreed in settlement) under the Infringement Claim (provided, however, that any insurance recoveries and/or indemnity or contribution amounts received by the Customer shall reduce the indemnifiable amount to be paid by Wint by the amount of such recovery).
10.2. Exclusions. Wint will have no obligation or liability under this Section (Indemnification) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Platform or Wint Edge Device not made by Wint; (ii) the combination of the Platform or Wint Edge Device with any third-party product or service; and/or (iii) any Customer instructions or specifications. Should the Platform or Wint Edge Device (in whole or in part) become, or in Wint’s reasonable opinion be likely to become, the subject of an Infringement Claim, then Customer permits Wint, at Wint’s option and expense, to either: (x) obtain for Customer the right to continue using the Platform or Wint Edge Device (or parts thereof); or (y) replace or modify the Platform or Wint Edge Device (or parts thereof) so that it’s use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in Wint’s opinion, commercially feasible, Wint may terminate this Agreement upon written notice to Customer, following which Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription Fees hereunder based on the remaining period of the Subscription Term.
Wint’S AGGREGATE LIABILITY UNDER THIS SECTION (INDEMNIFICATION) SHALL NOT EXCEED THE LOWER OF: (A) TEN (10) TIMES THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO Wint UNDER THIS AGREEMENT; AND (B) TWO MILLION US DOLLARS (US$ 2,000,000).
10.3. Customer Indemnity.Customer shall: (a) at its own expense defend Wint, its Affiliates and their respective directors, officers, employees and representatives (each, a “Wint Indemnitee”) against any third party demand or claim made against a Wint Indemnitee resulting from Customer’s misuse or unauthorized use of any Wint Materials and/or for any breach of the license granted under this Agreement or under Section 2 (Usage Restrictions) above (each, a “Misuse Claim”); and (b) indemnify and hold harmless the Wint Indemnitee for any amounts finally awarded against or imposed upon the Wint Indemnitee (or otherwise agreed in settlement) under the Misuse Claim, as well as for any out-of-pocket legal expenses (including reasonable attorney’s fees) reasonably incurred by Wint under the Misuse Claim. A Misuse Claim shall include failure by Customer to remove any valves installed during construction but prohibited by Law from continuing to remain installed after construction has been completed and/or prior to building occupancy, including but not limited to valves that supply water to life saving systems such as sprinkler systems.
10.4. Indemnity Procedure. As a condition to the foregoing, the indemnified Party agrees: (A) to provide the indemnifying Party with prompt written notice of the Infringement Claim or Misuse Claim, as applicable (the “Claim”); (B) to cede to the indemnifying Party sole control of the defense and settlement of the Claim (except that any settlement shall require the indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide the indemnifying Party with all information and assistance reasonably requested by it; and (D) not to admit any liability under (or otherwise compromise the defense of) the Claim. The indemnified Party may participate in the defense of the Claim at its own cost and expense.
10.4. Sole Remedy. This Section represents the indemnifying Party’s sole obligation and liability, and the indemnified Party’s sole remedy, for the Claim.
11.1. Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue for the duration of the Subscription Term (defined below).
11.2. Renewal. Upon expiration of the initial subscription term specified in the Order Form (the “Initial Subscription Term””) the licenses specified in the Order Form shall automatically renew for successive ninety (90) day intervals (or such longer term as the Parties may mutually agree in an Order Form) unless either Party provides notice of termination within sixty (60) days prior to the expiration of the Initial Subscription Term. (each a “Renewal Subscription Term”). The Renewal Subscription Term, together with the Initial Subscription Term shall be the “Subscription Term”.
11.3. Termination for Cause. Either Party may terminate this Agreement upon written notice to the other Party:
(a) If the other Party commits a material breach under this Agreement, and fails to cure such breach within forty-five (45) days after receiving written notice from the other Party alleging the breach (except that for payment breaches, the cure period shall be fourteen (14) days); or
(b) Upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations.
11.4. Effect of Termination; Survival. Upon termination of this Agreement: (a) the license shall automatically terminate; (b) Customer shall cease all access and use of the Platform and the Wint Edge Device (and Wint shall be entitled to verify same) and upon request certify in a signed writing that it has done so; and (c) except for termination resulting from Wint’s uncured breach of this Agreement, Customer shall pay any outstanding Fees and other charges that accrued or are otherwise due and owing as of termination, which shall become immediately due and payable, and if necessary, Wint shall issue a final invoice therefor. The customer acknowledges that following termination it will have no further access to any Customer Content within the Platform, and that Wint may (but shall not be obligated to) delete any Customer Content as may have been stored by Wint at any time. Sections 5 (Ownership) through 12 (Miscellaneous) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
12.1. Entire Agreement and Amendments. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, this Agreement supersedes any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify or supplement this Agreement. The section headings used in this Agreement are for convenience only. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e-mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument.
12.2. Amendment. This Agreement may only be modified or supplemented by a written instrument referencing this Agreement, which is duly signed by each Party.
12.3. Assignment. This Agreement may not be assigned, in whole or in part, by Customer without the prior express written consent of Wint; except, however, that Customer may, upon written notice, assign this Agreement in whole to: (A) an Affiliate; or (B) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party’s assets or business relating to this Agreement. Notwithstanding the foregoing, Customer shall not assign this Agreement to a direct competitor of Wint without Wint’s express written consent. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and inure to the benefit of each Party and its respective successors and assigns. Furthermore, any Wint obligation hereunder may be performed (in whole or in part), and any Wint right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Wint.
12.4. Governing Law; Jurisdiction. For Customers located in the United States, this Agreement shall be governed by the laws of New York, USA. For Customers located outside of the United States, this Agreement shall be governed by the laws of England. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed and the Uniform Computer Information Transactions Act (UCITA) (regardless of where or when adopted), shall also not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy arising in the United States between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in New, York, New York, USA and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Any claim, dispute or controversy arising outside the United States between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in London, England and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY.
12.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
12.6. Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
12.7. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Wint’s Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
12.8. Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
12.9. Force Majeure. Neither Party shall have any liability, or otherwise be deemed in breach, for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). The Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, or failure of (or delay in) delivery by Wint’s suppliers or carriers; (c) invasion, war (declared or undeclared), terrorism, riot, insurrection, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party. Notwithstanding the foregoing, Customer shall not be entitled to use, or rely on, this Section (Force Majeure) in connection with any Customer breach of the Subscription and/or of Wint’s Intellectual Property Rights. For the avoidance of doubt, any problems relating to hosting of the Platform by a third party is beyond the reasonable control of Wint.
12.10. Notices. Except as may be specified otherwise in this Agreement, all notices, consents, or other communications provided for in connection with this Agreement shall be in writing, and shall be deemed given upon: (a) personal delivery; (b) the second business day after mailing via either U.S. mail or mailing via registered or certified mail with postage prepaid and return receipt requested; or (c) upon delivery confirmation by nationally recognized overnight delivery service.
12.11. Export Compliance. Customer represents and warrants that: (a) it is not a resident of, and will not access or use Wint Materials in, a country that the U.S. government has embargoed for use of Wint Materials, and that Customer is not a person or entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Wint. Customer shall not transfer, export, re-export, import, re-import or divert Wint Materials in violation of any Export Control Laws (defined below). In the event of a breach under this Section (Export Compliance), Customer agrees to indemnify and hold harmless Wint and all Wint Affiliates (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Wint or a Wint Affiliate (or such persons) because of such breach. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or Wint or its Affiliates, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
12.12. Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Platform constitutes “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Platform shall be as provided in this Agreement. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to this Agreement specifically granting those rights.
12.13. Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of Wint’s or its Affiliates’ employees, partners, representatives, or agents, in connection with this Agreement.
12.14. Customer Resources. Except for the Platform and the Wint Edge Device provided by Wint hereunder, Customer shall be solely responsible: (a) for providing all hardware, software, systems, water consumption (and other related data), assets, facilities, and ancillary goods and services needed for Customer to access and use the Platform and Wint Edge Device; (b) for ensuring their compatibility with the Platform and Wint Edge Device; and (c) for obtaining (and maintaining) all consents and licenses necessary to exercise Customer’s rights under the Subscription.
12.15. Technical Advice.
Wint shall have no obligation or liability for any technical advice furnished to Customer, including without limitation technical advice with respect to the use of the Platform or Wint Edge Device, all such technical advice being given and accepted at Customer’s risk.
In Witness whereof, the parties have caused this Software Subscription Agreement to be executed by their duly authorized representative.
Customer agrees to use the Wint Edge Device solely at the Location(s) and for the Project(s) and as otherwise specified under the Order Form and Wint shall have no obligation or liability of any kind whatsoever for any use of the Wint Edge Device beyond the scope set forth herein.
Wint shall make commercially reasonable efforts to meet the Wint Edge Device delivery date(s) specified in the Order Form; however, Customer acknowledges that delivery is dependent on third parties outside Wint’s control, and therefore such delivery date(s) are estimates only. Delivery may be made in installments. Unless specified otherwise in the Order Form, delivery of the Wint Edge Device shall be prepaid, and will be made Ex Works (Incoterms 2010) Wint’s Israel facility (at which time risk of loss of, or damage to, the Wint Edge Device shall pass to Customer). In the absence of specific written instructions, Wint may select the shipping method, carrier, and freight charges. Customer shall reimburse Wint for any and all costs and expenses of storage incurred after the date that Wint is prepared to make shipment. Unless otherwise specified in an Order Form, the Wint Edge Device shall be deemed accepted upon delivery. Title to the Wint Edge Device shall only pass to Customer upon full payment therefor; provided, however, that to the extent the foregoing arrangement is not permissible under applicable Law, then title to such Wint Edge Device shall pass to Customer at the same time as risk of loss/damage.
Wint Edge Device’s firmware (if any) is only licensed (not sold) to Customer and is only licensed for use on the corresponding Wint Edge Device.
Wint reserves the right to replace or modify the Wint Edge Device (or parts thereof), and/or send an updated or improved version of its corresponding firmware, at Wint’s cost and expense. Customer shall cooperate with Wint’s instructions for implementing such changes. Nothing herein shall force Wint to make such a replacement or modification.
Wint warrants to Customer that: a) Wint Edge Device shall, during the Term, be free from material defects in workmanship and materials, subject to normal and intended use and service for the duration of the Subscription Term; and b) the Plumbing Hardware will perform in material accordance with its functional specifications set out in its Documentation for twelve (12) months from the commencement of the Initial Subscription Term (collectively, the “Hardware Warranty”).
The Hardware Warranty is given to Customer only. In the event of any Hardware Warranty breach Customer shall notify Wint via email (at [email protected]) of the defect promptly after discovery thereof. If Wint determines that the Support Services cannot resolve the defect, Wint shall (at its sole option) repair or replace the defective hardware (or part thereof) with new or refurbished items (or parts), as the case may be. The foregoing represents the Customer’s sole remedy, and Wint’s sole obligation and liability, for any Hardware Warranty breach. In the event Wint repairs or replaces Plumbing Hardware pursuant to this Section (Warranty), the Plumbing Hardware Warranty shall remain in force for the longer of (a) the remainder of the original Plumbing Hardware Warranty Period (if applicable); or (b) thirty (30) days from the date of the delivery of the repaired or replaced Plumbing Hardware.
The Warranty shall not apply to (and Wint shall have no obligation or liability for) Wint Edge Device or Plumbing Hardware problems or defects arising from any of the following: (A) misuse, abuse, neglect, improper handling or installation, or use other than as specified in the applicable Documentation; (B) accident, natural disasters, or other factors beyond the reasonable control of Wint; (C) or installation in/on a building or other property other than at the Location; (D) unusual mechanical, physical, or electrical stress; (E) repair, reconfiguration, alteration, installment or servicing by any person other than an authorized Wint representative; (F) when a battery runs out that was not at all times connected to the AC outlet (in which case the Customer shall bear all costs associated with the replacement of the battery and/or such Wint Edge Device including shipping, travel, parts and labor); (G) an event of Force Majeure and/or (H) in any event where it becomes necessary to replace or alter such, including but not limited to: any changes required by law; manufacturer’s instructions (for example instructions regarding alteration or replacement upon the lapse of specified time periods); or infrastructure changes requiring alteration or replacement, (for example changes in communication infrastructures) Any services provided by Wint in connection with the foregoing shall be charged at Wint’s then-current rates (as may be specified in the Order Form). Notwithstanding anything in this Agreement to the contrary, in respect of Plumber Hardware, Wint shall have no obligation or liability of any kind whatsoever, except to the extent Wint receives back-to-back obligations, and can recover back-to-back liability, from the corresponding Plumbing Hardware supplier (pursuant to the supply contract between Wint or its Affiliate and such vendor or supplier).
