TERMS AND CONDITIONS OF SERVICE
These terms and conditions are an agreement between you (“Customer”) and Pulsechecker, LLC. You accept these terms and conditions by doing any of the following: (1) providing a written or electronic acknowledgement or confirmation that you accept these terms and conditions; or (2) by accepting or using the Services contemplated herein. In addition, by accepting and/or using the Services contemplated herein, you represent and warrant that Customer is authorized to agree to the terms and conditions set forth herein.
Provision of Services.
Provision of Services. Pulsechecker has developed a data sciences support approach utilizing information gleaned from its experience in the market as applied to the Customer’s business. Pulsechecker does so through monitoring of sensors installed on Customer’s premises and collection of data from such sensors to decrease volatility and variability as it relates to equipment performance. It is understood and agreed that Customer is responsible for the purchase or lease of Pulsechecker integrated sensors to be installed on Customer’s premises and/or property at Customer’s expense. Areas of improvement relate to machine/asset performance (i.e. temperature) and/or machine/asset health (i.e. energy).
Payments Made for Services. The Parties agree that all amounts due for Services provided by Pulsechecker are earned when they are due.
Terms of Service.
Commercially Reasonable Efforts. Pulsechecker agrees to provide the Services utilizing commercially reasonable efforts.
Intellectual Property. Customer agrees that the Services are confidential and have economic value. Customer agrees that, except as provided in Section 2.3 (a), the Services are the sole and exclusive property of Pulsechecker and shall not be used by Customer for any purpose other than in connection with the Services. Customer further agrees that, except as provided in Section 2.3 (a), upon termination of this Agreement, it shall have no further right to the Services, directly or indirectly. Customer further agrees, upon request, to promptly make all disclosures, execute all instruments and papers, and perform all acts whatsoever as are reasonably necessary or desired by Pulsechecker, or its successors and assigns, to confirm all rights created or contemplated by this Section 2.3 and which may be reasonably necessary or desirable to enable Pulsechecker and its successors and assigns to secure and enjoy the full benefits and advantages thereof.
The Parties agree that any data that is collected regarding Customer’s specific locations shall be jointly owned by Pulsechecker and Customer.
Term, Exclusivity and Termination.
Term. These terms and conditions shall remain in effect for so long as Customer continues to receive the Services and, provided that Customer has paid for all Services provided by Pulsechecker, shall not terminate unless terminated in accordance with these terms and conditions.
Termination. In the event that either party hereto materially or repeatedly defaults in the performance of any of its duties or obligations hereunder, which default shall not be substantially cured within ten (10) days, then the party not in default may, by giving written notice thereof to the defaulting party, terminate this Agreement as of a date specified in such notice of termination. In the event that either party hereto becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, then the other party hereto may, by giving written notice thereof to such party, terminate this Agreement as of a date specified in such notice of termination.
Notwithstanding the foregoing, if you fail to make any payment when due, Pulsechecker may stop providing the Services to you. Pulsechecker has no liability if it stops providing the Services to you for any reason set forth in this Section 3.2.
For any circumstance in which Customer is utilizing equipment that is owned by Pulsechecker, then Customer shall return, at its own expense, such equipment to PulseChecker upon termination of this Master Services Agreement or any specific Statement of Work that includes leased equipment. Customer shall be responsible for any damage to such equipment.
Miscellaneous.
Limitation Of Liability.
YOU AGREE THAT PULSECHECKER MAKES NO GUARANTEE OR WARRANTY OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO YOUR DEVICE(S) OR TO THE SERVICES PULSECHECKER PERFORMS. YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT IS SET FORTH BELOW (EXCLUSIVE REMEDY).
PULSECHECKER DOES NOT UNDERTAKE ANY RISK THAT YOU OR YOUR PROPERTY, OR THE PERSON OR PROPERTY OF OTHERS, MAY BE SUBJECT TO INJURY OR LOSS IF AN UNEXPECTED MACHINE PERFORMANCE AND/OR EVENT OCCURS. THE ALLOCATION OF SUCH RISK REMAINS WITH YOU, NOT PULSECHECKER. YOU RELEASE, WAIVE, DISCHARGE AND PROMISE NOT TO SUE OR BRING ANY CLAIM OF ANY TYPE AGAINST PULSECHECKER OR ITS THIRD PARTY PROVIDERS FOR LOSS, DAMAGE, OR INJURY RELATING IN ANY WAY TO THE YOUR DEVICE(S) OR THE SERVICES PROVIDED BY PULSECHECKER.
NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PULSECHECKER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR THE PRODUCTS OR SERVICES AT ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
IF ANY OTHER PERSON, INCLUDING YOUR SUBROGATING INSURER, MAKES ANY CLAIM OR FILES ANY LAWSUIT AGAINST PULSECHECKER IN ANY WAY RELATED TO YOUR DEVICE(S), EQUIPMENT, OR THE SERVICES PROVIDED BY PULSECHECKER TO YOU, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD PULSECHECKER AND/OR ITS THIRD PARTY PROVIDERS HARMLESS FROM ANY AND ALL SUCH CLAIMS AND LAWSUITS, INCLUDING THE PAYMENT OF ALL DAMAGES, EXPENSES, COSTS, AND ATTORNEYS' FEES. YOUR DUTY TO DEFEND IS SEPARATE AND DISTINCT FROM YOUR DUTY TO INDEMNIFY AND HOLD HARMLESS AND ARISES UPON THE ASSERTION OF A CLAIM OR DEMAND AGAINST PULSECHECKER AND REGARDLESS OF WHETHER PULSECHECKER HAS BEEN FOUND LIABLE OR WHETHER PULSECHECKER HAS INCURRED ANY EXPENSE.
PULSECHECKER IS NOT RESPONSIBLE FOR INTERRUPTIONS OR DELAYS TO A PRODUCT OR SERVICE THAT ARE CAUSED BY FORCE MAJEURE OR OTHER EVENTS OUTSIDE OF ITS CONTROL, INCLUDING WITHOUT LIMITATION THE FOLLOWING: ANY WAR WHETHER DECLARED OR UNDECLARED, FIRE, FLOOD, EXTREME WEATHER, ACCIDENT, EXPLOSION, ACT OF TERRORISM, GOVERNMENTAL ORDERS, REGULATIONS, RESTRICTIONS OR PRIORITIES, STRIKE, LOCKOUT OR OTHER LABOR TROUBLES OR DISRUPTIONS, CYBER ATTACKS, CIVIL DISORDER, NATURAL DISASTERS (INCLUDING FIRES, FLOODS, EARTHQUAKES, AND SEVERE WEATHER), PUBLIC HEALTH EPIDEMICS, DESTRUCTION OF NETWORK FACILITIES OR TRANSPORTATION INFRASTRUCTURE, OR ANY OTHER CAUSE BEYOND THE ABSOLUTE CONTROL OF PULSECHECKER FOR THE DURATION OF AN INTERRUPTION.
Assignment. Pulsechecker and Customer agree that neither party may assign its rights under this Agreement without the prior written consent of the other party.
No Agency. The parties to this Agreement are independent contractors. It is expressly agreed that in exercising its rights granted hereunder, each party is acting as independent contractor and not as agent or employee of the other party. Neither party shall have any right, power or authority to enter into any agreement on or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon either party.
Severability. In the event that any term or provision of this Agreement shall, for any reason, be held to be illegal, invalid or unenforceable under the laws, regulations or ordinances of any federal, state or local government authority to which this Agreement is subject, such term or provision shall be deemed severed from this Agreement, and the remaining terms and provisions will be unaffected thereby.
Laws And Regulations. The parties agree that it shall be their own responsibility that they comply with all applicable federal, state or local laws and regulations with respect to this Agreement and/or the Services being provided hereunder.
No Third-Party Beneficiaries. Customer and Pulsechecker mutually agree that this Agreement is intended by them to be solely for the benefit of the parties hereto and that no third parties shall obtain any direct or indirect benefits from the Agreement, have any claim or be entitled to any remedy under this Agreement or otherwise in any way be regarded as third-party beneficiaries under this Agreement.
Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any of the services or obligations set forth in this Agreement, when such delay or failure is caused by war, invasion, insurrection, act of terror, blockade, embargo, riot, flood, earthquake, act of God, fire, strike, government or governmental agency, interference of civil or military authorities, or other cause of a like kind beyond their control. Performance times shall be considered extended for the period required to make up the work lost because of such cause.
Limitation on Actions. No action, regardless of form, arising out of this Agreement shall be brought by either party more than two (2) years after such cause of action shall have accrued.
Headings. The headings in this Agreement are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of this Agreement.
Amendments. These terms and conditions may be amended by Pulsechecker from time to time and shall be published on the applicable website of Pulsechecker. Customer agrees to be bound by any modifications to these terms and conditions and further agrees that publishing such modifications on the website of Pulsechecker shall qualify as notice to Customer of the modifications.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Montana, without regard to the conflict of law provisions, as if it were executed and were to be performed entirely within the State of Montana.
Alternative Dispute Resolution. As a condition precedent to the filing of any case in law arising out of or relating in any way to this Agreement or the rights or duties arising thereunder, the parties agree to attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement by mediation. Either party may commence the mediation process by providing to the other party written notice, setting forth the subject of the dispute, claim or controversy and the relief requested. Within ten business days after the receipt of the foregoing notice, the other party shall deliver a written response to the initiating party's notice. If a party fails to respond to a written request within ten business days after the receipt of the written notice, or fails to participate in the scheduled mediation, that party will be deemed to have waived the right to mediate the issue in dispute. The initial mediation session shall be held within thirty calendar days after the response to the initial notice. The parties agree to share equally the costs and expenses of the mediation (which shall not include the expenses incurred by each party for its own legal representation in connection with the mediation ). The parties further acknowledge and agree that mediation proceedings are settlement negotiations, and that, to the extent allowed by applicable law, all offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties or their agents shall be confidential and inadmissible in any legal proceeding involving the parties; provided, however, that evidence which is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. If mediation does not result in a full and final resolution and settlement of the dispute within sixty (60) days of the date of the foregoing notice, the parties are free to initiate a court action or other legal proceeding, and the mediation will be deemed abandoned unless the parties mutually agree to continue the mediation process during the pendency of any court action or other legal proceeding.
Venue. The parties agree that the exclusive venue for any disputes arising out of or relating to this Agreement, or any of the obligations arising under this Agreement, shall be in the Courts of the City and State of Montana.
Entire Agreement. This Agreement (including the exhibits attached hereto) and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof.
Notices. All notices and other communications required or permitted hereunder shall be effective upon receipt and shall be in writing and may be delivered in person, by telecopy, electronic mail, overnight delivery service or by applicable mail service. The Notice shall be delivered to the party’s address set forth on the signature page of this Agreement, or at such other address as such party shall have furnished the other party in writing.
Confidentiality. Each party shall keep confidential, safeguard and hold in strict confidence and shall not use (except in connection with this Agreement) any confidential information disclosed to it by the other party, and each party agrees to only share the confidential information with those representatives that have a need to know such information, and to use its best efforts to cause its representatives who receive such information to hold the confidential information in strict confidence, in each case, unless compelled to disclose by judicial or administrative process or by other requirements of law. All materials not in the public domain provided by Customer shall be considered confidential information. Upon expiration or termination of this Agreement, each Party agrees to destroy and provide written certification of such destruction and/or deliver to the other party (at that Party’s option and instruction), all confidential information disclosed to it and in that Party’s possession or control and all copies thereof. If either Party is required to provide personally identifying information (“PII”) in connection with this Agreement, the parties agree that they will execute a separate confidentiality agreement embodying specific PII protection protocols.
Neutral Construction. The parties to this Agreement agree that this Agreement was negotiated fairly between them at arm’s length and that the final terms of this Agreement are the product of the parties’ negotiations. Each party represents and warrants that it has sought and received legal counsel of its own choosing with regard to the contents of this Agreement and the rights and obligations affected hereby. The parties agree that this Agreement shall be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a party or parties on the grounds that the party or parties drafted or was more responsible for drafting the provision(s).