Terms of Use​

Equilibrium Point IOT, Inc.

 

Terms of Use Agreement

 

PLEASE NOTE THAT THIS TERMS OF USE AGREEMENT IS SUBJECT TO CHANGE BY EQUILIBRIUM POINT IOT, INC.  (“EQPIOT”, “WE” OR “US”) IN ITS SOLE DISCRETION AT ANY TIME, WITH OR WITHOUT NOTICE TO YOU.

 

When changes are made to this Terms of Use Agreement (“Terms of Use” or “Agreement”), EQPIOT will make the updated version available at: www.eqpiot.com/terms-of-use (the “Website”). Continued use of the Website and/or Products and Services (defined below) once these changes are announced will confirm your approval of, and agreement to, any and all such changes. When we make changes to this Agreement, we will list the revision date at the top of this page. We encourage you to frequently check this page for any changes. You acknowledge and agree that it is your responsibility to review this Agreement periodically and become aware of modifications.

BY ACCESSING OR USING THE EQPIOT PRODUCTS, HOSTED SOFTWARE, WEBSITE, DOCUMENTATION, OR ANY OTHER SERVICES (DEFINED BELOW) AND/OR CLICKING “I ACCEPT”, YOU REPRESENT THAT YOU HAVE READ AND AGREE TO ACCEPT AND BE BOUND BY THIS AGREEMENT.  IF ACCEPTING ON YOUR OWN BEHALF, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE AND FULLY AUTHORIZED TO ENTER INTO THIS AGREEMENT PERSONALLY.  IF ACCEPTING THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE FULLY AUTHORIZED TO DO SO AND TO BIND THAT ENTITY TO THIS AGREEMENT. THE TERM “You” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU VISIT OUR WEBSITE AND/OR COMPLETE THE REGISTRATION PROCESS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES.

In addition, your use of certain services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Terms of Use or will be presented to You for your acceptance when you sign up to use the supplemental service. If this Terms of Use is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such service. Any Supplemental Terms are hereby incorporated into this Agreement.

In this Agreement, EQPIOT and you may be referred to individually as a “Party” and collectively as the “Parties”.

1. SUMMARY

1.1 EQPIOT offers various online services that integrate individual items of hardware that have been provisioned to use or access EQPIOT’s cloud and Software and are imported into EQPIOT’s systems.  Such items of hardware may either be provided by EQPIOT or by you (each, a “Device”).  These Devices work with EQPIOT’s cloud and Software to perform various Internet of Things related tasks and functions (the “Hosted Service”, and taken together with Devices provided by EQPIOT, and our Software, cloud, Website, documentation, support, online services and community, comprise our “Products and Services”).

1.2 Accounts.

(a) Accounts. In order to access the Products and Services, you must register and configure an account with EQPIOT (an “Account”).

(b) Registration Information. You represent and warrant that: (i) all required registration and configuration information you submit is truthful and accurate; and (ii) you will timely maintain the accuracy of such information. EQPIOT may suspend or terminate your Account without notice if you breach any of the terms of this Agreement. You are solely responsible for maintaining the accuracy of all registration and configuration information, and updating such information if and when it changes. EQPIOT will have no responsibility or liability whatsoever for errors or omissions that occur due to inaccurate or out of date account or configuration information. You are solely responsible for maintaining the confidentiality of your Account login information and are solely responsible for all activities that occur under your Account, whether by you or someone else. You agree to immediately notify EQPIOT of any unauthorized use, or suspected unauthorized use, of your Account, or any other breach of security. You will be solely responsible for any loss or damage that arises from any actual or suspected unauthorized use of your Account.  EQPIOT will not be liable for any loss or damage whatsoever that arises from your failure to comply with the above requirements.

2. LICENSES, USES, AND RESTRICTIONS

2.1 Software. Use of any software and associated documentation (“Software) that is made available via the Products and Services is governed by the terms of this Agreement, or of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the website page(s) accompanying the Software, as applicable. These license terms may also be posted on the Website or on the website page where the Software can be accessed, or in the Software itself. You shall not access or use any Software unless you agree to the terms of the applicable license agreements. At no time will EQPIOT provide you with any tangible copy of our Software. EQPIOT shall provide our Software via online access, and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Unless the applicable license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the license agreement for the Software, the license agreement for the Software shall take precedence in relation to that Software.  If the Software is a pre-release version, then, notwithstanding anything to the contrary included in the applicable license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes.

2.2 Access to Products and Services, License. We grant you a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, fully revocable and terminable (in accordance with section 7 herein) license to use and access the Products and Services for the sole purpose of enabling you to use the Products and Services in the manner permitted by this Agreement, solely for your internal purposes, and solely in compliance with all applicable laws and regulations. This license grant is subject to your full compliance with the terms and conditions of this Agreement.  Some Software may be offered under an open source license that is included with such Software. There may be provisions in such open source licenses that expressly override some of the terms and conditions in this Agreement.

2.3 Usage Limitations. As used herein, a “Request” means any electronic access made to the Hosted Service, or by the Hosted Service to a third party service(s), including without limitation, HTTP/HTTPS requests, application programming interface calls, web integrations or any message sent via software or hardware integrations, websockets or server sent event (SSE) streams to or by the Hosted Service to any third party service(s). Users may not perform more than the number of Requests per month or use the Hosted Services in connection with more Devices, for which the applicable fees have been paid. Regardless of the type or status of your Account, we may limit: (i) the maximum file size and frequency of transfer; (ii) the number and frequency of network calls that your Devices may make to the Hosted Service; and (iii) anything else about the Request as we deem appropriate, in our sole discretion. We may impose or modify these limitations without notice. We may utilize technical measures to prevent over-usage and stop usage of the Hosted Service by a Device after any usage limitations are exceeded or suspend your access to the Hosted Service with or without notice to you in the event you exceed any such limitations.

2.4 Restrictions. You agree that you will not, and that you will not permit, authorize, enable, or assist others, to do any of the following without our prior express written consent: (i) use EQPIOT’s name or trademarks to endorse or promote any product or service; (ii) state or imply endorsement, sponsorship, affiliation, or creation of you, or your Devices, or any product or service you may offer; (iii) sell, lease, rent, resell, distribute, transfer, copy, assign, sublicense, or otherwise convey the Products and Services, or any part or component thereof; (iv) modify or remove any copyright, trademark, license, legal, or other proprietary rights notices contained in, on, or referenced by the Products and Services; (v) derive or attempt to derive the source code, source files, layout, design, or any component or structure of all or any part of the Product and Services by reverse engineering, disassembly, decompilation, or any other means (the foregoing prohibitions include data structures or similar materials produced by the Products and Services or any part or component thereof); (vi) attempt or create a derivative product or service through use of or access to the Products and Services; (vii) attempt or create a competitive, substitute or similar service through use of or access to the Products and Services (viii) use the Products and Services in a manner that, as determined by EQPIOT in our sole discretion, exceeds reasonable volume, constitutes excessive or abusive usage or patterns of usage, or otherwise fails to comply or is inconsistent with any part of the Products and Services; or (ix) use the Products and Services or any part or component thereof for any illegal, unauthorized, or otherwise improper purposes, or in any manner which would violate this Agreement.

 

3. DEVICES

3.1 Refusal of Devices. EQPIOT will have the right, in its sole discretion, to refuse to permit your use of the Products and Services with a particular Device. Unless EQPIOT states otherwise, such rejection will not terminate this Agreement with respect to any other Device. EQPIOT will have no liability to you for such refusal.

3.2 Device Policy. You are solely responsible and liable for the Devices and Software that you provide or modify for use with the Hosted Service, and for supporting such Devices and Software. You are solely responsible and liable for using the Products and Services provided by EQPIOT in accordance with all usage instructions, guidelines, laws and regulations. On each Device you provide for use with the Hosted Service, you shall prominently display and comply with a privacy policy on such Device that includes a full, accurate and clear disclosure regarding EQPIOT’s collection, use and distribution of information collected via the Hosted Service in accordance with our Privacy Policy, available at www.eqpiot.com/legal/privacy. You represent and warrant that Devices provided by you will not: (i) contain any malicious code or software, including but not limited to computer viruses, worms, or back doors, that is intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized promotional materials, advertising, email, text messages, spam, junk mail, chain letters, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) contain or transmit content that is harassing, abusive, defamatory, threatening, vulgar, harmful, intentionally misleading, false, tortious, libelous, pornographic, obscene, invasive of another’s privacy, or patently offensive, or promote bigotry, hatred, racism, or physical harm of any kind against any group or individual, or be otherwise objectionable; (iv) be harmful to minors in any way; (v) violate any third-party right, including any trademark, copyright, license, trade secret, patent, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (vi) violate any laws or regulations, including without limitation any privacy laws, or any obligations or restrictions imposed by any third party; or (vii) offer or promote services that may be disparaging of or otherwise damaging or detrimental to EQPIOT, its customers, partners, employees, licensors, licensees, and Affiliates. As used in this Agreement, an Affiliate of EQPIOT shall mean a parent, subsidiary, brother or sister corporation or other corporation or entity which controls EQPIO or which the EQPIOT controls or which is under common control with EQPIOT. For purposes hereof, control means, in the case of a corporation, direct or indirect ownership of more than fifty percent (50%) of the interest entitled to a vote for a majority of the Board of Directors or equivalent body or, in the case of a partnership, limited liability company or other entity, direct or indirect ownership of the right to receive more than fifty percent (50%) of the profits thereof.

3.3 Unauthorized Applications. You understand that the Products and Services are not intended, authorized, warranted, or designed to be suitable for use in the following “Unauthorized Applications”: aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines, life support applications; weapons systems; military or space equipment requiring radiation hardened components; 911 or E911 emergency calling systems, or the operation of nuclear facilities. You warrant that you will not use the Products and Services for Unauthorized Applications.

3.4 Monitoring. You agree to provide us with access to all Devices and other materials related to your use of the Hosted Service to verify your compliance with this Agreement.  If you are using our Products and Services to monitor your local systems, you will need to identify these systems, and provide information including but not limited to their physical location and IP addresses, login, password, and other system access information, as well as network and corresponding network passwords.  The Products and Services involve monitoring of business and operational information such as uptime, downtime, throughput, levels, prices, sales, and costs, you will need to provide us access to each system that stores this information. You acknowledge that EQPIOT and our third party service providers will have access to these systems and will store this information to provide you this service.  You acknowledge our need and use of this information to provide you the Products and Services.

4. OWNERSHIP

4.1 EQPIOT Ownership. As between EQPIOT and you, EQPIOT owns all rights, title and interest in and to the Products and Services, Brand Elements (as defined below), and all improvements, modifications, and derivative works thereof, whether made solely by EQPIOT, solely by you, or jointly with EQPIOT and you (taken together, the “EQPIOT Property”). To the extent that Customer acquires any right, title or interest in or to the EQPIOT Property, any deliverable, or any intellectual property rights therein, Customer hereby assigns to EQPIOT all such right, title and interest. Except for the license granted in Section 2.2, this Agreement grants you no right, title, or interest in the EQPIOT Property. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices and restrictions contained in or required by this Agreement.

 

4.2 Customer Content. We claim no ownership or control over the Devices you provide, or the content sent, posted or displayed through your Device, except for any Product and Services therein. All content or data received by the Products and Services, or which Customer delivers into the Products and Services or is otherwise provided by Customer to EQPIOT  (“Customer Content”) is and will remain Customer’s exclusive property. Customer hereby grants EQPIOT, during the Term, a worldwide, non-exclusive, revocable, nontransferable, non-assignable (other than as set forth in Section 11.5), royalty-free license (without the right to sublicense) to access, use, host, reproduce, distribute, display, modify and prepare derivative works of all Customer Content solely for purposes of providing the Products and Services to Customer, and to improve the Products and Services, which license extends to any third party assisting EQPIOT in providing the Service.

4.3 Brand Elements. We grant you a limited, non-exclusive non-assignable, non-transferable, non-sublicensable, fully revocable and terminable (in accordance with section 7 herein) license to display our name, logos and domain names (collectively, “Brand Elements”) to promote and advertise your use of the Products and Services in accordance with this section. When you promote your usage or Device, you must not imply that your service or Device is created or endorsed in any manner by EQPIOT, although you may state facts (e.g., the Device is used with the Hosted Service). You agree not to remove, modify, distort, or obscure any of our Brand Elements or display our Brand Elements in any way that is misleading, defamatory, infringing, libelous, disparaging, obscene, or otherwise objectionable to EQPIOT. All use by you of the Brand Elements (including any goodwill associated therewith) will inure to the benefit of EQPIOT. At no time during or after the term of this Agreement will you challenge or assist others to challenge our Brand Elements (except to the extent such restriction is prohibited by law) or the registration thereof by EQPIOT, nor will you attempt to register any trademarks that are similar in any way to our Brand Elements. Prior to your use of any Brand element, you must submit to us a copy or image of your intended use and receive our approval via reply mail.  Any media release or advertising must also receive prior approved by EQPIOT.

5. RELATIONSHIP

5.1 Independent Development. You acknowledge and agree that EQPIOT may be independently developing hardware, software, applications, content and other products and services that may be similar to or competitive with your Device, software, applications, and content. Nothing in this Agreement will be construed as restricting or preventing EQPIOT from creating and fully exploiting such hardware, software, applications, content and other products and services, without any obligation to you. If you elect to provide us with any comments, suggestions, or feedback related to the Products or Services, or ideas for wholly new products and services, you assign all right, title and interest in and to such comments, suggestions and feedback to us, and acknowledge that we will be entitled to use, implement and exploit any such feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting, or compensation or other duty to account to you or any third party.

5.2 Support. We may provide you with support, upgrades, or modifications for the Products and Services. In the event we provide any support, it will be considered part of the EQPIOT Products and Services for purposes of Section 8 (Disclaimer and Limitation of Liability) and Section 9 (Indemnification) below, and we may terminate the provision of such support or modifications to you at any time without notice or liability to us. You understand and agree that you are solely responsible and liable for providing user support and any other technical assistance for your Device. We may redirect users and potential users of your Device to your email address on file for purposes of answering general Device inquiries and support questions.

5.3 Marketing. We may publicly refer to you, orally or in writing, as a user of EQPIOT Products and Services. In addition, we may publish your name and logo on the EQPIOT website or in promotional materials without your prior written consent. You grant us all necessary rights and licenses to do so.

6. FEES AND PAYMENT TERMS

6.1 Pricing. Please refer to our pricing at www.eqpiot.com for a description of the fees payable in connection with the Products and Services. In the event that you wish to increase the number or type of Products and Services or Devices beyond those specified for which the applicable fees have been paid, you shall be required to pay additional fees associated with this increase, prorated for the remainder of the term.

6.2 Taxes. EQPIOT’s fees are net of any applicable sales or use tax (“Sales Tax”). If the purchase by you of EQPIOT Products and Services under this Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to EQPIOT, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority.

6.3 Payment. You agree to pay all fees or charges to your Account in accordance with the applicable fees, charges, subscription, and billing terms in effect at the time a fee or charge is due and payable. You must provide EQPIOT with valid credit card (Visa, MasterCard, or any other issuer accepted by us, each a “Credit Card Provider”. Your Credit Card Provider agreement governs use of the designated credit card account, and you must refer to that agreement and not the terms of this Agreement to determine your and its rights and responsibilities. By providing EQPIOT with your credit card number and associated payment information, you agree that we are authorized to immediately invoice your Account for all fees and charges due and payable to EQPIOT hereunder and that no additional consent is required. You agree to immediately notify us of any change in your billing address or credit card used for payment hereunder. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the Website or by e-mail delivery to you.

6.4 Subscription Payment Terms and Automatic Renewal. You will be responsible for payment of the applicable fees for the EQPIOT Products and Services you select (each, a “Subscription Fee”) each time you select, modify, or add to a monthly or annual package (each, a “Service Commencement Date”). Except as set forth herein, all fees for the Products and Services are non-refundable. Your subscription will continue indefinitely until terminated in accordance with the terms herein. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically renew on the first day following the end of such period (each, a “Renewal Commencement Date”) and continue for an equivalent period, at EQPIOT’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.  If you purchase a single or multiple year annual subscription, in the event of termination you will not be entitled to any refund of pre-paid fees, and you will be responsible for any unpaid fees for the remaining term of that subscription.

7. TERM AND TERMINATION

7.1 Term. You agree that this Agreement will be deemed to be in effect upon the date on which you accept this Agreement, in accordance with the preamble.

7.2 Suspension and Termination. We may change, suspend, or discontinue the availability or any functionality of the Products and Services, or any aspect of your access to the Products and Services, at any time without notice to you and without incurring any liability to you. We may also impose limits on certain features and services or restrict your access to part or all of the Products and Services without notice to you and without incurring any liability to you. Furthermore, EQPIOT may limit, suspend, or terminate your use of the EQPIOT Properties (and your rights under this Agreement) at any time without notice to you and without incurring any liability to yoo. In addition, this Agreement will terminate automatically and without notice immediately upon any breach of the terms of this Agreement by you.

7.3 Your Termination. You may terminate this Agreement for any reason or no reason at all, at your convenience, by ceasing your use of the Products and Services and providing at least thirty (30) days prior notice to EQPIOT via email to admin@eqpiot.com.  However note that per section 6.4, if you have purchases a single or multiple year annual subscription, in the event of termination you will not be entitled to any refund of pre-paid fees, and you will be responsible for any unpaid fees for the remaining term of that subscription

7.4 Effect on Termination. Upon termination of this Agreement: (i) all rights and licenses granted will terminate immediately; (ii) any and all payment obligations, if any, will continue in full force and effect; and (iii) each party will promptly return to the other party all Confidential Information of such party in its possession, custody, or control. Neither party will be liable to the other party for damages of any sort resulting solely from the termination of this Agreement. Notwithstanding clause 7.4(i), EQPIOT’s sole obligation as it relates to copies of, or references or links to, your Device will be to, upon written request from you, make commercially reasonable efforts, as determined in its sole discretion, to remove all such references and links.

7.5 Deletion of Data. EQPIOT will use reasonable efforts to delete of your password, name, credit card information and all related information associated with or inside your Account (or any part thereof), excluding data related to past Transactions upon termination of this Agreement, or upon request.

7.6 Survival. Sections 4.1 (Ownership), 4.2 (Brand Features), 5.3 (Independent Development), 6 (Fees and Payment Terms), 7.6 (Survival), and 8 (Confidentiality) through 11 (General) will survive any termination of this Agreement.
 

8. DISCLAIMER AND LIABILITY

8.1 Disclaimer. THE EQPIOT PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” “WHERE IS,” “WITH ALL FAULTS” AND WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. EQPIOT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT. SOME ASPECTS OF THE PRODUCTS AND SERVICES ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED IN ANY MANNER. WE DO NOT REPRESENT, WARRANT, OR MAKE ANY CONDITION THAT THE EQPIOT PRODUCTS AND SERVICES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE EQPIOT PRODUCTS AND SERVICES, ALL OF WHICH IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOUR USE OF THE EQPIOT PRODUCTS AND SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM USE OF THE EQPIOT PRODCUTS AND SERVICES INCLUDING, BUT NOT LIMITED TO, FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM OUR SERVICES WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE USER AGREEMENT.

8.2 Limitation of Liability. EQPIOT WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR RELIANCE DAMAGES RELATED TO THIS AGREEMENT OR THE EQPIOT PRODUCTS AND SERVICES. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER YOU WERE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT OR RELATED TO THE EQPIOT PRODUCTS AND SERVICES EXCEED THE AMOUNTS PAID BY YOU TO EQPIOT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDEING THE ACT(S) GIVING RISE TO LIABILITY HEREUNDER.

 

9. INDEMNIFICATION

9.1 By EQPIOT. EQPIOT will, at its expense, defend or, in its sole discretion, settle any claim, action or allegation brought against you alleging that the EQPIOT Products and Services infringe any valid copyright or United States patent of a third party and will pay any final judgments entered into. You will give prompt written notice to us of such a claim and you will give us the exclusive right to defend any such claim, action, or allegation and or to make settlements thereof at our sole discretion. You will give such assistance and information as we may reasonably require to settle or to oppose such claims. This Section 9.1 provides your sole and exclusive remedy for any infringement claims or remedies.

9.2 By You. You will defend, indemnify and hold harmless EQPIOT and its Affiliates, and their respective directors, officers, agents, licensors, and other partners and employees from and against any third-party claim arising from or in any way related to your Device, your use of the EQPIOT Products and Services and EQPIOT Property, or your breach of any obligation herein, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.

9.3 Options. In the event any infringement claim, action or allegation is brought or threatened, we may, at our sole option and expense: (i) procure for you the right to continue use of the EQPIOT Products and Services or infringing part thereof; (ii) modify or amend the EQPIOT Products and Services or infringing part thereof, or replace the EQPIOT Products and Services or infringing part thereof with similar functionality; or (iii) if neither of the preceding is commercially practicable terminate the Agreement and the licenses granted herein, with no liability to you.

9.4 Exclusions. EQPIOT’s indemnification obligation will not apply if the infringement arises as a result of (i) any alteration, modification, or customization of the EQPIOT Products and Services made by any party other than EQPIOT or our authorized representative, if such infringement would not have occurred without such alteration, modification or customization (ii) any use of the EQPIOT Products and Services in combination with other products, equipment, devices, systems, or data not supplied by us to the extent such claim is directed against such combination; or (iii) any use of the EQPIOT Products and Services in a manner other than as specified in this Agreement.

10. CONFIDENTIALITY

10.1 Ownership. “Confidential Information” means all written and oral information, disclosed by either Party to the other, related to the business, finance, technology, or operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information. All Confidential Information is proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Each Party agrees as follows: (i) to use the Confidential Information only for fulfilling its rights and obligations pursuant to this Agreement; (ii) to hold in confidence and protect the Confidential Information of the other Party from dissemination to, and use by, any third party, using the same degree of care used to protect its own Confidential Information, but in no event less than a reasonable degree of care; (iii) to restrict access to the Confidential Information to such of its personnel, agents and consultants, if any, who have a need to have access to perform their job pursuant to this Agreement, and have agreed in writing to treat such information in accordance with terms no less stringent than those in this Agreement; and (iv) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving Party will notify the disclosing Party as soon as possible.

10.2 Exceptions. The foregoing provisions will not apply to Confidential Information that: (i) is or becomes generally publicly available or enters the public domain through no fault of the receiving Party; (ii) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (iii) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (iv) is independently developed by the receiving Party without use or reference to the Confidential Information of the disclosing Party; or (v) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (1) to comply with the order of a court or other governmental body or applicable law, provided the Party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (2) to establish a Party’s rights under this Agreement.

11. GENERAL.

11.1 Relationship of Parties. Each party is an independent contractor and neither party’s personnel are employees or agents of the other party for any purpose whatsoever. Nothing in this Agreement will be deemed to constitute, create, give effect to or otherwise recognize an agency, employment, fiduciary, joint venture, partnership or business entity of any kind, nor will anything hereunder constitute either party as the agent or representative of the other.  Neither Party is the representative of the other Party for any purpose and neither Party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.

11.2 Governing Law. This Agreement will be governed in accordance with the laws of the Commonwealth of Massachusetts without reference to its conflicts of law principles. The Parties agree that the exclusive jurisdiction of any actions arising out of this Agreement will be in the state or federal courts, as applicable, located in Boston, Massachusetts and each party hereby submits to the personal jurisdiction of such courts.

11.3 Entire Agreement. This Agreement constitutes the entire agreement between you and EQPIOT and governs your use of the EQPIOT Products and Services. This Agreement supersedes all prior discussions and writings regarding the subject matter to which it pertains. If, through accessing or using the EQPIOT Products and Services, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and this Agreement will not affect your legal relationship with such third party.

11.4 Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such term or provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

11.5 Assignment. This Agreement may not be assigned by either party without the prior written consent of the non-assigning party; except that EQPIOT shall have the right to assign this Agreement without such consent to any of its Affiliates or in connection with a merger, consolidation, reorganization, or other business combination in which EQPIOT is not the surviving entity, or in connection with any sale of all or substantially all of the capital stock or assets of EQWPIOT. Any attempted assignment in violation of the foregoing is null and void. This Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns.

11.6 Waiver. A waiver or failure to enforce by either Party of one default or breach of the other Party will not be considered to be a waiver of any subsequent default or breach.

11.7 Remedies. All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. A party’s breach or threatened breach of any of its covenants or agreements in this Agreement may cause irreparable injury that is inadequately compensable in monetary damages.

11.8 Force Majeure. Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including but not limited to acts of God, riots, war, earthquake, fire, severe weather, flood, embargo, catastrophe, sabotage, utility or transmission failures, communication or internet failures, governmental actions, prohibitions or regulations, national emergencies, or insurrections.

11.8 Consent to Contact. By providing your email and mobile phone number to EQPIOT, you acknowledge and consent that EQPIOT may contact you using emails, automated text messages, and pre-recorded automated calls.  The content of these calls may be informational or marketing/promotional in nature. This consent may be removed by selecting the unsubscribe option included in EQPIOT communications, but until such time your consent is revoked, you may receive such communications on a continuing basis.

11.10 Government End Users. The EQPIOT Properties are “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the EQPIOT Properties or such documentation by the United States Government will be governed solely by the terms of this Agreement.

11.11 Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier at the Parties’ respective addresses. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier. You agree that EQPIOT may send any privacy or other notices, disclosures, reports, documents, communications and other records regarding the Products and Services (collectively, “Notices”) in electronic form to: (1) the email address that you provided during registration, or (2) by posting the Notice on our Website. The delivery of any Notice is effective when posted to the Website or sent by EQPIOT (whichever occurs first), regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by canceling your Account. You must give notice to us in writing via email to admin@eqpiot.com or another address otherwise expressly provided.

11.12 Miscellaneous.  Headings are for convenience. No presumption is to operate in either party’s favor as a result of who drafted this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation,” and the word “or” is not exclusive.