TERMS AND CONDITIONS OF USE
Welcome to the Terms and Conditions of Use Agreement (“Agreement”) which contains the terms and conditions applicable to access and use of the http://wam.bapisensors.com web site and the services provided through and in connection with the http://wam.bapisensors.com web site (collectively the “Site”).
This Agreement is entered into between Building Automation Products, Inc. (“BAPI”) located at 750 North Royal Avenue, Gays Mills, Wisconsin 54631 and the legal entity on whose behalf the Site will be accessed and used (“Company”). This Agreement states the terms and conditions governing Company’s access and use of the Site.
IF COMPANY DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN COMPANY SHOULD CLICK ON THE “DECLINE” BUTTON LOCATED AT THE END OF THIS AGREEMENT AND SHOULD CONTACT BAPI TO RECEIVE A FULL REFUND OF ANY SUBSCRIPTION FEES PAID BY COMPANY FOR ACCESS AND USE OF THE SITE.
1. Limited License to Access and Use the Site.
- Subject to Company’s compliance with all of the terms and conditions of this Agreement, BAPI hereby grants to Company, during the term of this Agreement, a non-exclusive and non-transferable license to access and use the Site for the sole purpose of managing Company’s wireless asset monitoring account (“WAM Account”).
2. Restriction on Access and Use of Site for Mission Critical Applications.
- COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT THE SITE IS NOT INTENDED FOR USE BY COMPANY IN CONNECTION WITH ANY MISSION CRITICAL APPLICATIONS, WHERE AN ERROR OR ANY INACCURACY IN ANY DATA, CONTENT, INFORMATION OR COMMUNICATIONS PROVIDED ON OR OBTAINED FROM THE SITE COULD RESULT IN BODILY INJURY, DEATH OR SUBSTANTIAL DAMAGE TO PROPERTY. COMPANY HEREBY REPRESENTS AND WARRANTS TO BAPI AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS THAT THE SITE WILL NOT BE ACCESSED OR USED BY COMPANY IN CONNECTION WITH ANY SUCH MISSION CRITICAL APPLICATIONS. Company further acknowledges and agrees that BAPI and its officers, directors, employees and agents shall not be responsible or liable for the accuracy, usefulness or availability of any data, content, information or communications provided on or obtained from the Site, or from use of the Site, and shall not be responsible or liable for any business decisions based on such data, content, information and communications.
3. Other Prohibited Uses of the Site.
- Company agrees not to access the Site by any means other than through the interface that is provided by BAPI for use in connection with accessing and using the Site. Company further agrees not to interfere, disrupt, or attempt to gain unauthorized access to accounts, other than Company’s WAM Account, that are accessible through, or which use the Site. Company further agrees not to disseminate, store, or transmit viruses, trojan horses, or any other malicious code or program or engage in any other activity deemed by BAPI in its sole discretion to be in conflict with the spirit or intent of this Agreement.
- Company shall be solely responsible for obtaining access to the Site and for providing, maintaining, and ensuring compatibility with the Site including, without limitation, all hardware, software, electrical, and other physical requirements for Company’s access and use of the Site including, without limitation, telecommunications, Internet access connections, Web browsers, or other equipment, programs, and services required to access and use the Site. Company also understands and agrees that its access and use of the Site may involve third-party fees and charges (such as Internet service provider fees or airtime charges) and that Company is solely responsible for all of those fees and charges.
- A. Upon completion of the subscription registration process, Company will receive one or more user IDs and passwords which will allow Company to have access to the Site including access to Company’s WAM Account. Company shall be solely responsible for any authorized or unauthorized access to and use of its WAM Account by any person. Company agrees to be solely responsible for the confidentiality of Company’s WAM Account, user IDs and passwords and for restricting access to Company’s WAM Account, user IDs and passwords. Company further agrees to be solely responsible for all activities that occur under or in connection with Company’s WAM Account, user IDs and passwords, regardless of whether or not such activities are authorized or unauthorized by Company. Company further agrees to (i) immediately notify BAPI of any unauthorized use of its WAM Account, user IDs or passwords or any other breach of security relating to this Agreement or the Site, and (ii) ensure that Company’s employees and representatives who access and use the Site exit from Company’s WAM Account at the end of each session.
B. Company further agrees to: (i) provide true, accurate, current and complete profile, contact and account information about itself, and (ii) maintain and promptly update its WAM Account profile, contact and account information to insure that it is true, accurate, current and complete. If Company provides any WAM Account profile, contact or account information that is untrue, inaccurate, not current or incomplete, or BAPI has reasonable grounds to suspect that any such information is untrue, inaccurate, not current or incomplete, BAPI has, in addition to its other rights under this Agreement, the right to suspend or terminate Company’s WAM Account and refuse any and all current or future access and use of the Site (or any portion thereof).
C. BAPI cannot and will not be liable for any loss or damage arising from Company’s failure to comply with the terms and conditions of this Section 5.
B. Notwithstanding anything else contained in this Agreement, Company hereby acknowledges and agrees that BAPI may access, preserve and disclose Company’s profile, contact and/or account information if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process, (ii) enforce this Agreement, (iii) respond to claims that any third party rights are being violated, (iv) respond to Company’s requests for customer service, or (v) protect the rights, property or personal safety of BAPI and its officers, directors, employees, agents and customers.
- Company hereby acknowledges and agrees that upon accessing the Site, BAPI or its agents may store some information on Company’s computers. This information will be in the form of a “cookie” or similar file and can help BAPI maintain and improve the Site in many ways. A “cookie” is a small amount of data that is transferred to the Internet browser on Company’s computers by a Web server and can only be read by the Web server that gave it to Company’s computers. It functions as Company’s identification card, recording such things as Internet addresses, user IDs, passwords, and preferences. It cannot be executed as code or deliver viruses. With most Internet browsers, a person can erase “cookies” from the computer hard drive, block all “cookies,” or receive a warning before a “cookie” is stored. Company should refer to its computer’s Internet browser instructions to learn more about these functions.
- Company agrees that from time to time the Site, or portions thereof, may be inaccessible or inoperable for any reason including, without limitation: (i) equipment malfunctions, (ii) periodic maintenance procedures or repairs that BAPI or its agents may undertake from time to time, or (iii) causes beyond the control of BAPI or that are not reasonably foreseeable by BAPI.
9. Intellectual Property.
- A. Ownership of Proprietary Rights. BAPI and/or BAPI’s licensors own all copyrights, trademark rights, patent rights and other proprietary rights in and relating to the Site including, without limitation, in and to any software used in connection with the Site and in and to the content contained on the Site, and all such rights shall remain owned by BAPI and/or its licensors.
B. No Other Rights or Licenses. Company acknowledges and agrees that this Agreement only grants Licensee a limited non-exclusive and non-transferable license to access and use the Site, and Company shall have only those specific rights and licenses expressly provided for herein. No exclusive right of any kind is granted to Company by the terms of this Agreement.
C. Trademarks. The registered and unregistered trademarks, service marks, and logos used and displayed on the Site are owned by BAPI or its licensors (the “Trademarks”). Under no circumstances shall Company use or copy any of the Trademarks. Nothing herein should be construed as granting any license or right to Company to use any Trademark displayed on the Site without the express written permission of BAPI and/or its licensors.
D. Copyrighted Works. Certain content contained on the Site including, without limitation, images, photos, graphics, sounds/audio, communications programs, user interfaces, executable code, and data formatted, organized, and collected in a variety of forms, including, without limitation, layouts, pages, screens, directories, and databases, are owned by or licensed to BAPI. Except as permitted by this Agreement, Company shall not copy, reproduce, modify, alter, create derivative works from, distribute, or publicly display any such content from the Site without the prior express written permission of BAPI.
- The Site may provide links to other websites maintained by third parties. Company acknowledges and agrees that such links are provided for Company’s convenience only and do not reflect any endorsement, affiliation, relationship or sponsorship by BAPI with respect to the providers of such linked sites or the quality, reliability, or any other characteristic or feature of such linked sites. Company further acknowledges and agrees that BAPI is not responsible in any manner (including without limitation with respect to any loss or injury Company may suffer) for any matter associated with the linked sites, including without limitation, the content provided on or through any such linked sites or Company’s reliance thereon. BAPI MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO ANY LINKED SITE. COMPANY’S ACCESS TO AND USE OF ANY LINKED SITE IS SOLELY AT COMPANY’S OWN RISK. In addition, Company should be aware that its use of any linked site is subject to the terms and conditions applicable to that site, including the privacy policies (or lack thereof) of such site. If a third party links to the Site, it is not necessarily an indication of endorsement, affiliation, relationship, or sponsorship by or with BAPI. BAPI may not even be aware that a third party has linked to the Site.
11. Disclaimer of Warranties.
COMPANY AGREES AND ACKNOWLEDGES THAT THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT COMPANY’S ACCESS AND USE OF THE SITE SHALL BE AT COMPANY’S SOLE RISK.
- COMPANY FURTHER AGREES AND ACKNOWLEDGES THAT BAPI AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY STATUTE, BY COMMUNICATION OR CONDUCT WITH COMPANY, OR OTHERWISE, WITH RESPECT TO THE SITE INCLUDING, WITHOUT LIMITATION, (I) COMPANY’S ACCESS AND USE OF THE SITE, (II) THAT THE SITE WILL MEET COMPANY’S REQUIREMENTS, (III) THAT ACCESS AND USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (IV) THAT DATA, CONTENT, INFORMATION OR COMMUNICATIONS PROVIDED ON OR OBTAINED FROM THE SITE, OR FROM USE OF THE SITE, WILL BE ACCURATE, COMPLETE OR RELIABLE, AND (V) THAT ANY ERRORS IN THE SITE, OR IN THE DATA, CONTENT, INFORMATION OR COMMUNICATIONS PROVIDED ON OR OBTAINED FROM THE SITE, WILL BE OR CAN BE CORRECTED. TO THE FULLEST EXTENT PERMITTED BY LAW, BAPI AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
12. Limitations of Liability.
- A. BAPI’s aggregate liability to Company under, arising out of, or relating to this Agreement and the Site including, without limitation, arising out of or relating to Company’s access and use of the Site, or at law or in equity, shall be limited to the amount actually paid by Company to BAPI for access and use of the Site. BAPI’s limitation of liability under this Agreement is cumulative with all of BAPI’s payments to Company in satisfaction of its liabilities under this Agreement being aggregated to determine satisfaction of the limit.
B. IN NO EVENT SHALL BAPI OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO COMPANY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ECONOMIC OR COMMERCIAL LOSSES, ARISING OUT OF OR RESULTING FROM THIS AGREEMENT OR THE SITE INCLUDING, WITHOUT LIMITATION, COMPANY’S ACCESS TO AND USE OF THE SITE, WHETHER BASED ON WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
C. THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
D. THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
13. Release and Indemnification.
- A. Release. In the event that Company has a dispute with a third party that involves this Agreement or the Site, Company agrees to release BAPI and its officers, directors, employees and agents from any and all actions, causes of action, suits, proceedings, claims, debts, demands, liabilities and damages (actual and consequential), of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way relating to such disputes.
B. Indemnification. Company agrees to indemnify, hold harmless and defend BAPI and its officers, directors, employees and agents from and against any and all actions, causes of action, suits, proceedings, claims, damages, debts, demands or liabilities including, without limitation, reasonable costs and attorneys’ fees, arising out of or in any way relating to: (i) a breach of this Agreement by Company, or (ii) Company’s access and use of the Site.
- A. This Agreement is effective upon Company’s acceptance as set forth herein and shall continue in full force and effect until the earlier of (i) the expiration of Company’s WAM Account subscription, or (ii) termination of this Agreement by either Company or BAPI as permitted by this Agreement.
B. Either party may terminate this Agreement, and Company’s associated access and use of the Site, at any time and for any reason, by giving written notice to the other party of it desire to terminate this Agreement.
C. In addition, BAPI reserves the right, in its sole discretion, at any time and for any reason, to: (i) remove or disable access to all or any portion of the Site or Company’s WAM Account, or (ii) suspend Company’s access to or use of all or any portion of the Site or Company’s WAM Account.
15. Company’s Representations and Warranties.
- A. Company hereby represents and warrants that it has the right, authority and power to enter into this Agreement and that it is not barred from accessing or using the Site under the laws of the United States or any other applicable jurisdiction.
B. Company represents and warrants that in connection with this Agreement and its access and use of the Site, it will comply with all applicable local, state, federal and international laws and regulations.
16. Miscellaneous Provisions.
- A. Amendment. BAPI shall have the right, at any time and without notice, to add to or modify the terms of this Agreement. Company’s access to or use of the Site after the date such amended terms are delivered to Company shall be deemed to constitute acceptance of such amended terms.
B. Waivers. No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
C. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions of this Agreement will remain fully effective and enforceable.
D. Notice. Any and all notices and communications required by this Agreement shall be in writing and shall be deemed to be delivered when sent by registered mail, return receipt requested, or when sent by facsimile or e-mail, to either party’s last known mailing address, facsimile number or e-mail address. The parties hereby consent to notice as provided for in this Agreement.
E. Choice of Law. This Agreement is made in and shall be governed by the laws of the State of Wisconsin, including without limitation its tort law, but without reference to its conflict of laws provisions.
F. Forum for Disputes. Any and all suits, actions, claims or proceedings arising under or relating to this Agreement shall be brought in the state or federal courts located in the State of Wisconsin. Company hereby expressly consents and submits to the personal jurisdiction of, and venue of, the state and federal courts located in the State of Wisconsin for all suits, actions, claims and proceedings arising under or relating to this Agreement.
G. Service of Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections that any party may now or hereafter have, to process being served in any such suit, action, claim or proceeding referred to in the preceding subsection 16F pursuant to the rules of the applicable court, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this subsection 16G shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions claims or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts of the State of Wisconsin.
H. Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
I. Survival. The terms and conditions of Sections 2 (Restrictions on Access and Use of Site for Mission Critical Applications), 5C (Security), 6 (Privacy), 9 (Intellectual Property), 10 (Links), 11 (Disclaimer of Warranties), 12 (Limitations of Liability), 13 (Release and Indemnification), 15 (Company’s Representations and Warranties) and 16 (Miscellaneous Provisions) shall survive any termination or expiration of this Agreement.
J. Entire Agreement. This Agreement constitutes the complete and exclusive agreement between Company and BAPI regarding access and use of the Site and supersedes any and all prior agreements, communications, representations, statements, and understandings, whether oral or written, between Company and BAPI with regards to access and use of the Site..
K. Assignments. BAPI may assign all or any part of this Agreement, but no assignment of this Agreement or transfer of any interest in this Agreement may be made by Company without the prior written consent of BAPI.