PLEASE READ THESE TERMS CAREFULLY BEFORE USING HYCLOUD. BY INDICATING CONSENT ELECTRONICALLY OR ACCESSING OR OTHERWISE USING HYCLOUD, CUSTOMER AGREES TO THE TERMS SET OUT BELOW. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, DO NOT INDICATE CONSENT ELECTRONICALLY AND MAKE NO FURTHER USE OF HYCLOUD.
Terms of Use HyCloud
These Terms of use "Terms" set forth the terms and conditions that govern a Customer’s (defined below) use of the Services (defined below).
1. Scope of application
The following Terms shall apply between IMI Hydronic Engineering International SA, Route de Crassier 19, 1262 Eysins, Switzerland "IMI" and the company accessing and using the Services "Customer".
The "Services" include:
- access to condition, configuration (read and write access) and measurement data; and
- remote support for configuration of IMI device
2. Access and use
2.1. Access and Use
IMI grants Customer, during the Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) the Services and applicable Documentation solely for Customer’s and its Affiliates' internal business purposes in accordance with the Documentation.
2.2. Access and Use Restrictions
Customer shall not: (a) copy or reproduce the Services or the Documentation except as permitted under these Terms; (b) exceed the subscribed quantities, users or other entitlement measures of the Services; (c) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in the Services or Documentation; (d) assign, sell, resell, sublicense, distribute or otherwise transfer the rights granted to Customer under these Terms to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble the Services; create, translate or otherwise prepare derivative works based upon the Services, Documentation or IMI intellectual property; (f) attempt to gain unauthorized access to the Services or its related systems or networks, or perform unauthorized penetrating testing on the Services;
2.3. Login Access to the Services
Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the Services, (ii) that such Authorized Users have been trained in proper use of the Services, and (iii) proper usage of passwords, access procedures with respect to logging into the Services. IMI reserves the right to refuse registration if it reasonably believes to violate the terms and conditions set forth in this these Terms, in which case IMI will inform Customer in writing of such refusal or cancellation.
3. Rights in Intellectual Property
3.1. Intellectual Property
Except for the rights granted in these Terms, all rights, title, and interest in and to the Services, Documentation, and IMI Intellectual Property are the exclusive property of IMI, its Affiliates or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall (a) transfer ownership of any Intellectual Property rights from one party to the other, or (b) provide either party a right to use the other party’s trade names, logos, or trademarks.
3.2. Customer Data
Customer owns all right, title and interest in all Customer Data. Nothing in these Terms shall be construed to grant IMI any rights in Customer Data beyond those expressly provided herein. Customer grants IMI and its Affiliates the limited, non-exclusive, worldwide right to use the Customer Data solely for the purpose of providing the Services.
3.3. Usage Data and Suggestions
IMI shall be permitted to collect and use the Usage Data for its reasonable business purposes. To the extent that Customer provides IMI with Suggestions, such Suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon IMI pursuant to these Terms and may be implemented by IMI in its sole discretion. Customer acknowledges that any IMI products or materials incorporating any such Suggestions shall be the sole and exclusive property of IMI.
4. Confidentiality
4.1. Confidential Information
The parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other. The receiving party may only use the disclosing party’s Confidential Information to fulfill the purposes of these Terms- The receiving party will protect the disclosing party’s Confidential Information by using at least the same degree of care as the receiving party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein.
4.2. Exceptions Information
Exceptions Information will not be deemed Confidential Information if it: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party without use of or reliance upon the disclosing party’s Confidential Information, and the receiving party can provide evidence to that effect. The receiving party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing party prior written notice sufficient to permit the disclosing party to contest such disclosure.
4.3. Advertising and Publicity
Neither party shall make or permit to be made any public announcement concerning the relationship between the parties without the prior written consent of the other party.
5. Security and Processing of Personal Data
5.1. Customer Data Content
As between IMI and Customer, Customer is solely responsible for: (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the Services; (iii) ensuring Customer has a valid legal basis for processing Customer Data and for sharing Customer Data with IMI (to the extent applicable); and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including Applicable Data Protection Laws.
5.2. Data Protection Laws
The Parties shall comply with their respective obligations under the Applicable Data Protection Laws. In particular, if Customer is established in the European Economic Area ("EEA"), in the United Kingdom ("UK"), or will, in connection with the Services, provide IMI with personal data relating to an individual located within the EEA or the UK, the parties shall comply with the privacy policy found at www.imi-hydronic.com/privacy-policy which in such case is hereby incorporated into this Agreement.
5.3. Security of Customer Data
IMI shall: (i) ensure that is has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; (ii) have measures in place designed to protect the security and confidentiality of Customer Data; and (iii) access and use the Customer Data solely to perform its obligations in accordance with the Terms.
7. Warranties
7.1. Warranty
IMI warrants that the Services will perform in substantial conformity with the Documentation, and that the Services are not designed to contain viruses, worms or other unintended malicious or destructive code. The foregoing warranties are void if the failure of the Services has resulted from negligence, error, or misuse of the Services by Customer, the Authorized User or by anyone other than IMI. Customer shall be required to report any breach of warranty to IMI within a period of thirty (30) days of the date on which the incident giving rise to the claim occurred. IMI’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of these warranties will be for IMI, to use reasonable commercial efforts to correct such nonconformity within thirty (30) days of the date that notice of the breach was provided; and, if IMI fails to correct the breach within such cure period, Customer may terminate these Terms.
7.2. Disclaimer
Any and all warranties, expressed, incorporated or implied, are limited to the extent and period of the use of the Services. To the maximum extent allowed by applicable law, IMI disclaims all other warranties, conditions and other terms, whether express or implied or incorporated into these Terms by statute, common law or otherwise, including the implied conditions and warranties of merchantability and fitness for a particular purpose. IMI will have no liability for delays, failures or losses attributable or related in any way to the use or implementation of third-party software or services not provided by IMI.
8. Indemnification
8.1. Infringement Indemnity
IMI shall defend and indemnify Customer and its officers, directors and employees against third-party intellectual property infringement claims, suits and proceedings resulting from the violation, misappropriation, or infringement of such third party’s patent, copyright, trademark or trade secret caused by Customer’s use of the Services in accordance with these Terms and the Documentation for directly related damages.
8.2. Customer Data and Use Indemnity
Customer shall defend and indemnify IMI and/or its Affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity) resulting from: (i) any alleged infringement or violation by the Customer Data of such third-party’s patent, copyright, trademark, trade secret; or (ii) IMI’s use of the Customer Data, in accordance with the Terms and (where applicable) with the terms of the privacy policy in 6.2, violates applicable law; and any and all related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
8.3. Process
Each parties defense and indemnification obligations herein will become effective upon, and are subject to: (a) the indemnified party’s prompt notification to the indemnifying party of any claims in writing; and (b) the indemnified party providing the indemnifying party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying party will have no authority to enter into any settlement or admission of the indemnified party’s wrongdoing on behalf of the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld). At the indemnifying party’s request, the indemnified party shall reasonably cooperate with the indemnifying party in defending or settling any claim.
8.4. Exclusions
The above IMI obligations to defend and indemnify will not apply in the event that a claim arises from or relates to: (a) use of the Services not in accordance with the Documentation and these Terms; (b) Customer’s use of the Services in violation of applicable laws; (c) any modification, alteration or conversion of the Services not created or approved in writing by IMI; (d) IMI’s compliance with specifications, requirements or requests of Customer; or (e) Customer’s gross negligence or willful misconduct.
8.5. Remedies
If the Service becomes, or IMI reasonably determines that the Service is likely to become, subject to a claim of infringement for which IMI must indemnify Customer as described above, IMI may at its option: (a) procure for Customer the right to continue to access and use the Service, (b) replace or modify the Service so that it becomes non-infringing without causing a material adverse effect on the functionality provided by the infringing Service, or (c) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the Services. This section states the sole liability of IMI and the exclusive remedy of Customer with respect to any indemnification claims arising out of or related to these Terms.
9. Limitation of Liability
9.1. No Consequential Damages
Neither party will have any liability to the other party for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with these Terms, however caused, whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, and whether or not the party has been advised of the possibility of such damages. These Terms not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by applicable law, including liability for (a) death or bodily injury caused by a party’s negligence; or (b) gross negligence, willful misconduct, or fraud.
10. Term and Termination
10.1. Term
Unless otherwise agreed, these Terms will be effective upon Customers electronic acceptance
10.2. Termination
Either party may terminate this these Terms immediately upon notice to the other party if the other party: (i) materially breaches these Terms and fails to remedy such breach within thirty (30) days after receiving written notice of the breach from the other party; or (ii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business. In addition, a party may terminate these Terms in whole or in part, or cease provision of the Services if required to comply with applicable law or regulation, and such termination will not constitute a breach of this these Terms by the terminating party. IMI reserves the right to suspend Customer’s access to the applicable Services upon 30 days’ written notice to Customer if there is an uncured material breach of these Terms.
10.3. Effects of Termination/Expiration
Upon termination or expiration of an applicable (i) Customer will have no further right to access or use the Services; and (ii) each party shall within thirty (30) days after written request return or destroy any tangible Confidential Information. Any Customer Data contained on the Services will be deleted within sixty (60) days of termination/expiration. Customer acknowledges that it is responsible for exporting any Customer Data to which Customer desires continued access after termination/expiration, and IMI shall have no liability for any failure of Customer to retrieve such Customer Data and no obligation to store or retain any such Customer Data after such sixty (60) day period.
11. Miscellaneous
11.1. Independent Contractors
Nothing in this these Terms will be construed to imply a joint venture, partnership or principal-agent relationship between IMI and Customer, and neither party will have the right, power or authority to obligate or bind the other in any manner whatsoever.
11.2. Notices
All notices will be in writing and will be deemed to have been duly given when provided via email when the sender has received a delivery/read receipt.
11.3. Force Majeure
Neither party will be liable to the other party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control.
11.4. Governing Law and Jurisdiction
These Terms shall be governed exclusively by Swiss law without regard to conflicts of law rules and the courts of Nyon shall have jurisdiction over any dispute that arises out of their application.
11.5. Entire Agreement, Execution, and Modification
These Terms supersede all prior agreements and representations between the parties regarding the subject matter of this Agreement. IMI may make changes to these Terms from time to time without notice.
11.6. Severability and Waiver
These Terms shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of these Terms or of any other term or provision hereof. Should any term or provision of be declared void or unenforceable by any court of competent jurisdiction, the parties intend that a substitute provision will be added that to the greatest extent possible, achieves the intended commercial result of the original provision. The failure of either party to enforce any rights granted to it hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
11.7. Assignment
Neither party may assign any of its rights or obligations under these Terms without the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign any and all of its rights and obligations under these Terms to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon written notice to the other party.
11.8. Definitions and Interpretation
The following definitions and rules of interpretation apply to these Terms:
- "Affiliate" means a company controlling, controlled by, or under common control with a party (an entity will be deemed to have control if it owns over 50% of another entity).
- "Applicable Data Protection Laws" means the EU General Data Protection Regulation (2016/679) ("GDPR"), any applicable laws of EU member states implementing the GDPR (including the UK Data Protection Act 2018), in each case as amended, consolidated, re-enacted or replaced from time to time and only if and insofar as they apply.
- "Authorized User" means employees, agents, consultants, contractors, or vendors authorized by Customer to use the Services solely for the internal use of Customer subject to the terms and conditions set out in the Terms
- "Confidential Information" means all information provided by the disclosing party to the receiving party concerning the disclosing party or its Affiliates’ business, products or services that is not generally known to the public, including information relating to customers, vendors, trade secrets, prices, products, services, computer programs and other intellectual property and any other information which a party should reasonably understand to be considered Confidential Information whether or not such information is marked "Confidential" or contains such similar legend by the disclosing party at the time of disclosure.
- "Customer Data" means data and/or content uploaded to the Services by Customer (including where applicable Authorized Users)
- "Documentation" means the user guides, installation documents, security fundamentals documentation, and specifications for the Services that are made available from time to time on climatecontrol.imiplc.com
- "Intellectual Property" means a party’s proprietary material, technology, or processes (excluding the Services and Documentation), including services, software tools, proprietary framework and methodology, hardware designs, algorithms, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned or licensed by a third party) and any derivatives, improvements, enhancements or extensions of such Intellectual Property conceived, reduced to practice, or developed.
- "Services" means the services further specified in section 2 (including any updates and upgrades to the Services provided by IMI in its sole discretion, and any software, systems and locally-installed software agents and connectors that interact with the Services as may be provided by IMI in connection with the Services).
- "Subscription Term" means the period of time during which Customer is subscribed to the Services.
- "Suggestions" means, any ideas or suggestions for improvements, new features, functionalities, corrections, enhancements or changes to the Services suggested by Customer to IMI, which constitute Intellectual Property rights under applicable law.
- "Usage Data" means data generated in connection with Customer’s access, use and configuration of the Services and data derived from it.