Integrator Tenant Agreement
Use of the field service business management software provided by Skyboss, Inc. (“Skyboss”) allows users to access certain proprietary telematics software (the “Software”) embedded in hardware devices (each, a “Device” and together with the Software, collectively, the “Product”) provided by Momentum IoT, Inc. (“Momentum IoT”, “us”, “we”). This Integrator Tenant Agreement (“Agreement”) is a legal agreement between Momentum IoT and the person(s) or legal entity that has contracted with Skyboss (“Tenant”). The person checking the box displayed on the Momentum IoT registration page indicating acceptance of the terms of this Agreement represents and warrants to Momentum IoT that he/she has the right and authority to enter into this Agreement on behalf of Tenant. By checking the box displayed on the Momentum IoT registration page or making the Product available to Tenant’s employees, contractors and/or agents (“Users”), Tenant accepts and agrees to the terms of this Agreement.
b. Restricted Uses. Except as expressly permitted in this Agreement, Tenant shall not or permit others to (i) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit any portion of the Product or make any portion of the Product available to any third party, (ii) copy or use any portion of the Product for any purpose, (iii) use any portion of the Software on any device or computer other than a Device provided by Momentum IoT, (iv) remove, obscure or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Product, or (v) modify, make derivative works of, disassemble, decompile or reverse engineer any part of the Product (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case Tenant shall first contact Momentum IoT and provide Momentum IoT an opportunity to create such changes as are needed to achieve interoperability). Tenant shall not disclose to any third party or publicize the results of any performance or functional evaluation of any portion of the Product without Momentum IoT’s prior written approval.
a. Set up. Upon our receipt of Tenant’s contact information from Skyboss, we will send Tenant an email requesting additional information necessary for establishing a Momentum IoT account (the “Account”), including credit card payment information. We will create an Account for Tenant promptly following our receipt of this information. Tenant represents and warrants that (i) all information (including, without limitation, credit card information) provided to Momentum IoT is true, correct and complete, (ii) Tenant is duly authorized to use such credit card, (iii) charges to the credit card provided by Tenant will be honored by the card issuer, and (iv) Tenant will pay all charges incurred by Tenant pursuant to this Agreement without dispute, including all applicable taxes, if any.
b. Shipment of Devices. We will use commercially reasonable efforts to ship the number of Devices requested by Tenant at time the Account is created and any additional Devices requested by Tenant within 2 business days following Momentum IoT’s receipt of the request. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments of Devices.
c. Cancellation. The Account is separate from Tenant’s account with Skyboss. If Tenant’s account with Skyboss is canceled and Tenant wishes to continue using of the Product, Tenant must promptly contact Momentum IoT to decouple the Account from Tenant’s Skyboss account. If Tenant wishes to cancel the Account, Tenant must (i) notify us by sending an email with the subject “Cancel Account” to email@example.com and (ii) return all of the Devices to us in accordance with Section 2.d. below. Skyboss or Momentum IoT may cancel the Account. In the event that Skyboss or Momentum IoT cancels the Account, we will send written notice of cancelation to the email address for Tenant on file for the Account.
d. Return of Devices. TENANT must return all Devices to us upon cancelation of THE ACCOUNT. Each Device must be in good working condition. Tenant is responsible for the cost of shipping, and bears the risk of loss during shipment, of returned Devices. The shipping address for the return of Devices to Momentum IoT is 100 W. Broadway, Suite 500, Long Beach CA, 90802. If Tenant cancels the Account, the shipment of all returned Devices must be postmarked on or before 30 days from the date Tenant provides written notice of cancellation. If Skyboss cancels the Account, the shipment of all returned Devices must be postmarked on or before 30 days from the date we provide Tenant written notice of cancellation. Tenant agrees that Momentum IoT may charge $200 to the credit card on file for the Account for each Device that is not returned by Tenant to Momentum IoT within the applicable 30-day timeframe.
e. Damage to Devices. Tenant is responsible for any damage caused to any Device while in the possession or control of Tenant or any User. We may charge Tenant $200 for each such Device that is damaged prior to being returned to us.
f. Defective Devices. If a Device is defective, not due, in whole or in part, to any accident, abuse, attempted or actual modification by anyone other than Momentum IoT, misuse, improper installation or misapplication, and returned to us, we will replace the defective Device at our cost. However, Tenant agrees that Momentum may charge $200 for any defective Device that: (i) is lost, (ii) is stolen, (iii) is a result of failure to follow our instructions as to the storage, installation, commissioning, use or maintenance of the Device, or (iv) is altered without our prior written consent.
Automatic Software Updates.
Momentum IoT may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product or to make additional services, features or functionality available (“Updates”). Updates may be automatically installed in the Product without prior notice and Tenant hereby agrees to the installation of such Updates. Tenant acknowledges that Users may be required to install Updates to use the Product. In such event, Tenant shall promptly notify Users and cause them to install the Updates promptly. Except for the Updates provided by Momentum IoT pursuant to this Section 3, Momentum IoT shall have no obligation hereunder to provide any support or maintenance of the Product
As between the parties, except as expressly licensed to Tenant hereunder, Momentum IoT retains exclusive ownership of the Product, all data this is generated, collected and/or results from the use of the Product and all intellectual property and proprietary rights recognized anywhere in the world therein. Momentum IoT and its licensors reserve all rights in and to the Product not expressly granted to Tenant and this Agreement does not grant any rights or licenses by implication. The Software (and all copies thereof) is licensed to Tenant, not sold, by Momentum IoT. Any and all suggestions, comments and feedback provided to Momentum IoT by Tenant relating to the Product (“Feedback”) shall belong to Momentum IoT. Momentum IoT may use, copy, modify, publish, and redistribute Feedback for any purpose and in any way without any compensation to Tenant.
Term and Termination.
This Agreement is effective on the date accepted by Tenant and shall continue in effect until the Account is cancelled or this Agreement is terminated in accordance with this Section 5. Momentum IoT may terminate this Agreement and cancel the Account immediately at any time if Tenant fails to comply with any of the terms hereof. Tenant may terminate this Agreement effective immediately upon written notice to Momentum IoT. Upon termination of this Agreement, the license granted hereunder will terminate and Tenant must immediately cease providing Users access to the Product and cause all Users to stop using the Product. Each party’s rights and obligations set forth in Sections 2 through 15 (inclusive) of this Agreement will remain in effect following after any termination of this Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOMENTUM IOT PROVIDES THE PRODUCT “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. MOMENTUM IOT DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT. MOMENTUM IOT MAKES NO WARRANTY THAT USE OF THE PRODUCT WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. USE OF THE PRODUCT AND/OR INFORMATION GENERATED BY THE PRODUCT IS AT TENANT’S OWN DISCRETION AND RISK. TENANT WILL BE SOLELY RESPONSIBLE FOR (AND MOMENTUM IOT DISCLAIMS) ANY AND ALL LOSS, LIABILITY AND DAMAGES ARISING FROM A USER’S USE OF THE PRODUCT OR ANY COMPUTER, MOBILE DEVICE OR OTHER PRODUCT CONNECTED TO OR USED WITH THE PRODUCT.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MOMENTUM IOT BE LIABLE FOR (a) ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST OR CORRUPTED DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCT OR ITS USE, EVEN IF MOMENTUM IOT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, (b) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR RIGHTS, OR (c) DAMAGES ARISING FROM OR RELATED TO THE PRODUCT OR ITS USE, WHETHER IN CONTRACT, TORT STRICT LIABILITY OR OTHER LEGAL THEORY, IN AN AMOUNT EXCEEDING THE GREATER OF (i) THE FEES ACTUALLY PAID BY TENANT TO MOMENTUM IOT HEREUNDER OR (ii) ONE THOUSAND DOLLARS ($1,000).
U.S. Government End Users.
The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), the Software is provided to U.S. Government end users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
Tenant shall not assign any of its rights, or delegate any of its obligations, arising under this Agreement without Momentum IOT’s prior written consent and any attempted assignment without such consent shall be null and void and without effect.
a. Confidential Information. As used herein, “Confidential Information” means Momentum IoT’s non-public or proprietary information, knowledge and data that relates to its actual or anticipated business, services, products and/or finances including, without limitation, methods, designs, ideas, techniques and processes, business strategies, customer lists, price lists, scientific and technical specifications and documentation and trade secrets, disclosed by, or obtained from, Momentum IoT, either directly or indirectly, in writing, orally or visually, including, any information a reasonable person would understand to be confidential under the circumstances. Confidential Information does not include information that: (i) was or is in the public domain prior to the date of disclosure, (ii) was or is lawfully received by Tenant from a third party who is not subject to an obligation of confidentiality with respect to such information, or (iii) was or is already known by or in Tenant’s possession as shown by Tenant’s written records. Without limiting the foregoing, Momentum IoT’s Confidential Information includes the Product and any documentation related thereto.
b. Obligations. Tenant hereby acknowledges and agrees that all Confidential Information shall be Momentum IoT’s sole and exclusive property. During the term of this Agreement and thereafter, Tenant shall: (i) not use the Confidential Information except to the extent necessary to exercise the rights granted to Tenant, or to perform its obligations, under the Agreement and (ii) not disclose or otherwise make available Confidential Information to any third party, except as authorized herein and other than to Tenant’s employees or independent contractors who (A) have a need to know such Confidential Information and (B) are subject to obligations of confidentiality with respect to such information as restrictive as those set forth herein (“Representatives”). Tenant shall be responsible for any breach of the terms hereof by any of its Representatives.
c. Mandatory Disclosure. In the event Tenant or any of its Representatives is requested or required by legal process to disclose any Confidential Information, Tenant shall give prompt written notice to Momentum IoT so that Momentum IoT may seek a protective order or other appropriate relief. In the event such protective order or other relief is not obtained, Tenant shall disclose only that portion of such Confidential Information that its counsel advises that it is legally required to disclose.
d. Injunctive Relief. Tenant acknowledges that any unauthorized disclosure or use of Confidential Information will constitute a material breach of the Agreement and cause substantial harm to Momentum IoT for which damages would not be a fully adequate remedy, and, therefore, in the event of any such breach (or threatened breach), in addition to other available remedies, Momentum IoT shall have the right to obtain injunctive relief in any court of competent jurisdiction without the necessity of posting a bond.
e. Return of Confidential Information. Within thirty (30) days following the expiration or any termination of the Agreement and/or upon Momentum IoT’s written request, Tenant will return or destroy all Confidential Information and related materials in its possession or control and will discontinue all further use of such Confidential Information.
a. Governing Law; Venue. This Agreement is governed by the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this Agreement must be brought in a federal or state court located in Los Angeles County, California and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such claim or dispute.
b. Notice. Any notice to Tenant may be provided by email to the address that provided to Momentum IoT at the time the Account is established or such other email address as Tenant may provide to Momentum IoT at firstname.lastname@example.org.
c. Severability. If any provision of this Agreement is invalid or unenforceable, such 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.
d. Waiver. All waivers by Momentum IoT will be effective only if in writing. Any waiver or failure by Momentum IoT to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
e. Headings. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.
f. Third-Party Beneficiaries. The Agreement does not confer any third-party beneficiary rights upon any person or entity except as expressly set forth herein.
g. Relationship of the Parties. Tenant and Momentum IoT are independent contractors and not partners and neither party is an agent of the other.
h. Entire Agreement. This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements between you and Momentum IoT relating to the Product.