THE SERVICE PROVIDER (DEFINED BELOW) IS WILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES (DEFINED BELOW) SUBJECT TO YOUR ACCEPTANCE OF ALL OF THE TERMS CONTAINED IN THE TERMS AND CONDITIONS. PLEASE READ CAREFULLY. YOU ACCEPT THE TERMS AND CONDITIONS AND AGREE TO BE BOUND BY THEM. IF YOU ARE ACTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY OR PERSON, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY OR PERSON TO THE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY OR PERSON, THEN YOU MUST NOT ACCESS AND USE THE PLATFORM.
1.1 Access to the portal is licensed by the Reseller to you on the terms of the Customer Agreement defined by the re-seller partner.
1.2 Where you have entered into this Service Agreement as a Customer of a Reseller Partner you agree that:
(a) your access to the platform is conditional on accepting these terms and conditions
(b) you do not provide any representations, warranties or guarantees in relation to the platform, or impose any liability on us in relation to the platform services, other than those which we make ourselves expressly in relation to the Platform Services provided;
(c) that agreement between you and your own customers relating to the Platform Services provided, insofar as it relates to your own customer’s access to the Platform, terminates automatically on the termination of your own Service Agreement with the reseller partner.
2.1 “Affiliate.” With respect to you, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with you.
2.2 “Authorized Users.” The individual persons consisting of your personnel and outside consultants who are authorized to access and use the portal and/or platform. Authorized Users may include your third party consultants, outsourcers, contractors and other service providers.
2.3 “Customer.” A User expressly authorised by us in writing to enable its own customers to access and use the IoTStream platform and portal.
2.4 “Effective Date.” The first day on which the IoTStream services are provided to you.
2.5 “End User.” A User who is an end user.
2.6 “Personal Information.” Information about an identifiable, natural person.
2.7 “Proprietary Rights.” Any and all rights anywhere in the world, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know how, trade secrets, moral rights, confidential or proprietary information, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, designs and other similar rights or interests in intellectual or industrial property, whether protected at law or under contract.
2.8 “Service Provider, we, us, our.” IoTStream Ltd, a New Zealand limited liability company, or its successor or assign.
2.9 “Site.” The website at iotstream.io (or such other domain designated by the Service Provider that points to the IoTStream Platform that holds your data).
2.10 “User Data.” Information or other data processed, stored or transmitted by or on behalf of a User, using the Platform.
2.11 “User, you, your.” A user of the Site, APIs or platform services and where that user is you, also includes any company, legal entity or person on whose behalf you are entering into this Service Agreement.
2.12 “IoTStream Technology.” The Site and the underlying hardware, software, and systems used by the Service Provider to provide the Platform.
2.13 “Platform.” The particular Platform described and specified as part of the Purchase Agreement, incorporating the IoTStream strategy centre provided by our backend services provider and made available via the Site, and any modifications, updates or upgrades to such services which may be generally released by IoTStream from time to time.
2.14 “Reseller Partner” Third party that engages with the end user for the purposes of billing, sales and 1/2nd line support.
2.15 “Customer Agreement” Agreement between the Customer and Reseller Partner for the supply of the Platform and Portal Services.
3.2 The Platform may interoperate with or link to a range of third party service features. The Service Provider does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party service or feature provider ceases to provide that service or feature or ceases to make it available on reasonable terms, we may cease to make available that service or feature to you, without liability to provide any refund, discount or other compensation. Those third party services and features may be subject to additional terms, and additional privacy policies and you undertake to comply with those in any use you make of those third party services or features.
4. Modification of Service Agreement.
4.1 We reserve the right to modify this Service Agreement at any time by posting an amended Service Agreement on the Site (accessible through links placed on one of the Platform or login pages) and/or by giving you notice of a modification. You should check periodically for modifications to this Service Agreement. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS SERVICE AGREEMENT. YOUR CONTINUED USE OF THE SITE OR THE PLATFORM FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE OF THAT MODIFIED SERVICE AGREEMENT BY YOU AND THE ENTITY OR PERSON ON WHOSE BEHALF YOU ARE ACTING.
5.1 The Platform is not intended for any User whose access to the Platform has been suspended or terminated. If you have had your access suspended or terminated, you must not attempt to use the Platform.
6. Use and Restrictions.
6.1 You must access and use the Platform only through the login protocols provided to you, and only for your own internal and standard business purposes. All rights not expressly granted in this Service Agreement are reserved by the Service Provider and its licensors.
6.2 You will be granted authorized login protocols for the Platform, and you must not use the Platform in excess of your authorized login protocols including any maximum number of Authorised Users. You must not and must not permit any other person to (i) access (or attempt to access) the Platform by any means other than through the login protocols we provide, and (ii)access (or attempt to access) the Platform through any automated means (including use of scripts or web crawlers), and you agree to comply with the instructions set out in any robots.txt file present on the Platform.
6.3 You must not, and must not permit any other person to (i) resell, sublicense, transfer, assign, or distribute the Platform or content; (ii) copy, modify or make derivative works based upon the Platform or content other than as is strictly necessary to operate and access the Platform in the ordinary course for their intended purpose; (iii) “frame” or “mirror” the Platform or content on any other server or Internet-enabled device, (iv) reverse engineer, decompile any part of the IoTStream Technology or the Platform except as expressly permitted by law, (v) attempt to undermine the security or integrity of the Platform or the IoTStream Technology, (vi) use or misuse the Platform or the IoTStream Technology in any way which may impair their functionality or the ability of another User to use the Platform, or (vii) in relation to your use of the Platform, impersonate another person or misrepresent authorisation to act on behalf of others or us, or misidentify the sender of any electronic messages.
6.4 You must not use the Platform or IoTStream Technology for the propagation, distribution, housing, processing, storing, or otherwise handling in any way information or material which is illegal, infringing of a third party’s rights (including privacy and intellectual property rights), false or misleading, lewd, obscene, pornographic, or is in any other way objectionable (“Objectionable“). The designation of any information or material as Objectionable is entirely at our sole discretion.
7. Inquiries Regarding The Platform.
7.1 You agree to make all inquiries regarding the Platform and technical support directly to the Service Provider.
8. Ownership and Intellectual Property.
8.1 The Platform and IoTStream Technology are protected by law, including, but not limited to, copyright law and international treaties. All rights, title and interest (including the copyright and other intellectual property rights) in the Platform and the IoTStream Technology, and to any modifications, adaptations, enhancements or derivative works of those, are owned by the Service Provider and its licensors. Except for the limited rights of use granted herein, all other rights are reserved by us and our licensors. You agree not to challenge the validity of, or our ownership of, our stated rights.
8.2 The Site and the domain name for the Site, the product and service names, brands, logos and other marks associated with the Platform are the trademarks of the Service Provider or its licensors, and no rights of use or other rights in those trademarks are granted to you under this Service Agreement.
8.3 You assign to us, with effect from the date at which the relevant rights arise, all right, title and interest in any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your personnel relating to the Platform (together “feedback“) and agree that we may use or disclose feedback for any purpose.
8.4 All rights, title and interest in the User Data remains, as between the parties, the property of the User. You grant us a worldwide, non-exclusive, fully paid-up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate your User Data for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with this Service Agreement.
8.5 To the extent not owned by us, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use any know-how, techniques, ideas, methodologies, and similar intellectual property rights used by us in connection with the Platform.
8.7 User acknowledges and agrees that (i) the Service Provider may require access to User Data to exercise its rights and perform its obligations, (ii) to the extent that this is necessary, the Service Provider may authorise a member or members of its personnel to access the User Data for this purpose, (iii) the User must arrange all consents and approvals necessary for the Service Provider to access the User Data in the foregoing ways, and (iv) to the extent that User Data contains Personal Information, in collecting, holding and processing that information through the Platform, the Service Provider is acting as an agent of the User for the purposes of the New Zealand Privacy Act 1993 and any other applicable privacy law.
9. Your Account Responsibilities.
9.1 You are responsible for maintaining the confidentiality of your login protocols, and any additional information that we may provide regarding accessing the Platform. If you knowingly share your login protocols with another person who is not authorized to use the Platform, this Service Agreement is subject to termination for cause. You agree to immediately notify us of any unauthorized use of your login protocols or any other breach of security. You are responsible and liable for any action or inaction taken by any person using your login protocols.
10. Mutual Exchange of Confidential Information.
10.1 The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party (“Owner”) may disclose to, or have obtained about them by, the other party (“Recipient”).
10.2 Definition of Confidential Information. For purposes hereof, “Confidential Information” means (i) the terms and conditions hereof, (ii) in the case of the Service Provider, non-public aspects of IoTStream’ Site and the operation thereof, IoTStream Technology, its intellectual property rights, and the Platform and additional services provided by IoTStream, and IoTStream’ business and technical information, and data, (iii) in the case of the User, User Data, and non-public aspects of User’s technology, computer programs, and business and technical information, and data. In addition, Confidential Information includes information which, although not related to the Platform or this Service Agreement, is nevertheless disclosed by, or obtained about, an Owner and can reasonably be expected to be confidential (including by way of any document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature).
10.3 Restrictions on Use and Disclosure. Recipient may use Confidential Information of Owner only for the purposes of this Service Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Service Agreement and only to its employees who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorised use and disclosure.
10.4 Exclusions. The restrictions of this Service Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation or restriction to Owner, (iv) is independently developed by Recipient as evidenced by its written and dated records and without any breach of this Service Agreement or any other obligation of confidentiality; or (v) is the subject of a written permission to disclose provided by Owner. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof if and as soon as practicable and reasonably cooperates with Owner to contest such disclosure.
10.5 Confidential Information. You agree that all non-public information that we provide (if any) regarding the Platform, including without limitation, our pricing, marketing methodology, and business processes, is our proprietary confidential information. You agree to use this confidential information only for the purposes of exercising your rights as our affiliate while in strict compliance with this Service Agreement.
10.6 Survival. The obligations of confidentiality in this Service Agreement survive its termination.
11. Disclaimer of Actions of Third Parties.
11.1 The Service Provider does not and cannot control the flow of data to or from IoTStream’ Technology and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof). Although we will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, IoTStream cannot guarantee that such events will not occur. WE DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.
12. Onward Transfer of Data and Personal Information overseas.
13. Registration Data.
13.1 Registration is required for you to establish an account at the Platform. You agree (i) to provide certain current, complete, and accurate information about you as prompted to do so by our online registration form (“Registration Data”), and (ii) to maintain and update such Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide such Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in its sole discretion, to suspend or terminate rights to use your account. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive use to (i) convert such information into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of utilizing digital information, and (ii) combine the information with other content provided by us in each case by any method or means or in any medium whether now known or hereafter devised.
14.1 The Service Provider reserves the right to monitor your access and use of the Platform without notification to you.
15.1 You shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet. As part of the Platform, the Service Provider shall implement reasonable and appropriate security procedures consistent with prevailing industry standards to protect data from unauthorized access by physical and electronic intrusion; provided, however, unless resulting from the failure of Service Provider to perform the foregoing obligations, the parties agree that Service Provider shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to Service Provider at the time. Service Provider will use reasonable efforts to promptly report to you any unauthorized access to your data promptly upon discovery by Service Provider, and Service Provider will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in your data is required, you shall be solely responsible for any and all such notifications at your expense.
16.1 At no additional charge to User, the Service Provider will use reasonable efforts to make daily incremental backups (the “Incremental Backup”) and weekly full backups (the “Full Backups”) of User Data archived with the IoTStream Technology. Requests for User Data need to be made to the Service Provider at least fourteen (14) days before the termination of this Service Agreement and will be provided at additional cost to the User on a time and materials basis. User Data will be made available in a standard database document of our choosing.
17. Subscription Term, Fees, Termination.
17.1 Subscription Term. The subscription term is defined by agreement between you and the Reseller Partner.
17.2 Subscription Fees and Payment Terms. The periodic subscription fees shall be payable on a monthly basis, in arrears, billed via the Reseller Partner. Periodic subscription fee payments shall be as per the rate as defined by the Reseller Partner. The subscription fee will be calculated based on the number of devices connecting at least once in the previous calendar month. If a device does not connect in any one calendar month it is not billed.
17.3 Additional Users. Unlimited Additional Authorised Users and sub-users can be added to the User’s account.
17.4 Termination For Cause. If a party fails to comply with any of the material terms and conditions of this Service Agreement, the non-defaulting party may terminate this Service Agreement and any and all rights upon fifteen (15) days’ notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied. A failure by the User to pay when due the subscription fee or any other amount due and payable to the Reseller partner is deemed to be a failure by the User to comply with a material term of this Service Agreement.
18. Technical Support, Training, and Consulting Services.
18.1 The Service Provider may provide technical support in the form of responses to questions by email at no additional charge. If additional services are required for the proper use and operation of the Platform or if training or consulting services are requested, the Service Provider shall provide such services on a time and materials (“T&M”) basis; that is, (i) User shall pay the Service Provider for all the time spent performing such services (including all travel time), plus materials, taxes, and reimbursable expenses; and (ii) the rates for such services shall be the Service Provider’s then current standard rates when such services are provided.
19. User Representations and Warranties.
19.1 User represents and warrants that (i) the performance of its obligations and use of the Platform (by User and its Authorized Users) will not violate any applicable laws, or regulations, including without limitation any and all laws and regulations regarding the collection, use, storage, disclosure and transfer outside the region of use of Personal Information , or (ii) cause a breach of any agreements with any third parties or unreasonably interfere with the use by other users of the Web Services.
19.2 User acknowledges that (i) the Service Provider does not undertake to monitor the content, the User Data, or any other information passing through the Platform for any purposes including the purpose of verifying legal compliance by any person, and (ii) User must ensure that the information it and its Authorized Users input into, store or transmit thereby complies with all applicable laws and regulations.
19.3 The Service Provider will have the right to suspend immediately the Platform in the event of any breach by User of any term of this Service Agreement, or if deemed reasonably necessary by the Service Provider to prevent any harm to the Service Provider and its business, the Platform, the IoTStream Technology, or to any person. The Service Provider will provide notice to User and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, IoTStream will promptly restore the Services.
20. Indemnity, Warrants and Liability.
20.1 Limitation of liability. In no event shall the Service Provider be liable under or in connection with the Service Agreement or the Platform to anyone for any loss of data, revenue, profits, use or other economic advantage or for any indirect, punitive, special, exemplary, incidental, or consequential damages of any type or kind, including without limitation the use or inability to use the Platform, or for any content obtained from or through the Platform, any interruption, inaccuracy, error or omission, regardless of cause, even if the Service Provider has been previously advised of the possibility of such damages.
20.2 Warranty disclaimers. Except as may be provided in any separate written agreements signed by the parties, the Platform are provided “as-is”, and neither the Service Provider or any of our licensors make any representation or warranty with respect to the Platform. The Service Provider and its licensors specifically disclaim, to the fullest extent permitted by law, any and all warranties, express or implied, relating to the Platform, including but not limited to, implied warranties of merchantability, completeness, timeliness, correctness, non-infringement, or fitness for any particular purpose. The Service Providers and its licensors do not represent or warrant that the Platform: (a) will be secure, timely, uninterrupted or error free or operate in combination with any other hardware, software, system or data, (b) will meet the User’s requirements or expectations, including meeting any legal obligations that the User has, or (c) will be free of viruses or other harmful components. These disclaimers constitute an essential part of this Service Agreement. If implied warranties may not be disclaimed under applicable law, then any implied warranties are limited in scope and duration to the minimum required by applicable law.
20.3 Consumer Guarantees Act. User agrees and represents that it is acquiring the Platform, and entering into this Service Agreement, for the purpose of a business and that the New Zealand Consumer Guarantees Act 1993 or any other relevant consumer protection legislation does not apply to the supply of the Platform or this Service Agreement.
20.4 Limitation of remedies. Where legislation or rule of law implies into this Service Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in this Service Agreement. However, the liability of the Service Provider for any breach of that condition or warranty is limited, at the Service Provider’s option, to (i) supply the Platform again, and/or (ii) paying the costs of having the Platform supplied again.
20.5 User indemnity. You indemnify us, our licensors and related companies against any loss or damage suffered as a result of any breach by you (or any person using your login protocols) of Sections 1.2, 6.1-6.4, 8.7, 9.1, 10, 13, 21.1 (confidentiality, IP, data, access conditions). This Section survives termination.
21. Consequences of Termination.
21.1 Return of Materials. Within ten (10) days of the expiration or termination of this agreement, User shall return to IoTStream any materials provided by IoTStream.
22.1 User shall not assign this Service Agreement or any right or interest under this Service Agreement, nor delegate any work or obligation to be performed under this Service Agreement, without IoTStream’ prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
23. Continuing Obligations.
23.1 The following provisions shall survive the expiration or termination of this Service Agreement: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the Confidential Information of either party, or any remedy for breach thereof, (iii) any obligations relating to the payment of taxes, duties, or any money to IoTStream hereunder, and (iv) any other provisions expressly or impliedly intended to survive termination.
24.1 The Service Provider may give notice to you by means of (i) a general notice in your account information, (ii) by electronic mail to your email address on record in your Registration Data. Such notice shall be deemed to have been given upon the expiration of forty eight (48) hours from it being placed or sent.
25. Arbitration and Law.
25.1 Except for actions to protect intellectual property rights, to seek urgent interlocutory and/or injunctive relief, and/or to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Service Agreement or a breach thereof shall be (i) first attempted to be resolved by the parties using good faith negotiations, and (ii) where such negotiations have failed to resolve the dispute within 14 days of a party notifying the other of a dispute, then submitted to and finally resolved by arbitration under the rules of the New Zealand law and the current Arbitration Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand Inc. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall be conducted by telephone or online. The arbitrator shall apply the laws of New Zealand to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
25.2 Applicable Law; Jurisdiction and Venue. This Service Agreement shall be construed under the laws of New Zealand, without regard to its principles of conflicts of law. Except as agreed otherwise in Section 26.1, the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
25.3 Severability. If any provision of this Service Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Service Agreement, and this Service Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
25.4 Force Majeure. The Service Provider shall not be liable for any loss or damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures.
26.1 This Service Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Service Agreement and merges all prior communications, understandings, and agreements.
26.2 Subject to the limited agency set out in Section 8.7, the Service Provider is an independent contractor of User, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under this Service Agreement.