Witzense.com Terms and Conditions
Effective as of January 1, 2023
Thanks for choosing Witzense.com. Please read these Terms & Conditions (“T&Cs”), which contain important information about your relationship with Witzense.com, including mandatory arbitration of disputes between us, instead of class actions or jury trials. You will become bound by these provisions once you accept these T&Cs. The Customer, together with Witzense.com, are referred to as the “Parties”.
TERMS & CONDITIONS
1) All services are pre-paid and payment is due the first day of each month. Client pre-pays for the entire month in advance, irrespective of utilization.
2) All equipment must be paid in full at the time of order
3) Most equipment includes a 12 month manufacturer warranty.
4) All professional services will be quoted and billed as per scope of work estimated and approved in advance by client in writing or digital equivalent. All travel and related expenses will be in addition of the estimated cost and may vary fortuitously without notice
5) Late payments will be subject to a $45 fee per each month of unpaid bills. An administrative return check fee of $75 may also be assessed in such cases. A reactivation fee of $75 will apply to any account that has been cancelled or suspended.
6) Should customer fail to timely pay for products and/or services, the customer agrees to be responsible for the cost of WIT collections efforts including but not limited to all attorney’s fees and additional administrative costs.
* Cancellations require notification of at least 60 days in writing by certified mail to:
Wireless & IP Technologies (WIT)
16850-112 Collins Avenue Unit 318
Sunny Isles Beach, FL 33160
or it's digital equivalent (email) to:
all cancellations should be received at a minimum of five (5) days before the next billing cycle. Cancellations occurring after the fifth day (5th) of the month will undergo two (2) additional billing cycles.
* All technical support provided by email or phone only will be free of charge with a maximum 48 hours first response time. Basic configuration changes such as names, users, general access, questions regarding the system, basic system set up and basic reports are included free of charge. Any change or issue that requires remote or onsite access (assessed at the sole discretion of WIT and it’s Partners) to a device, computer, cellular phone, network, technical design or special configuration will have a service fee of $150 per hour with a two hour minimum for onsite service or in thirty (30) minute increments over the phone plus all travel expenses will be paid by customer as incurred.
* All service calls that require our personnel to travel to the customer's site will have a standard fee of $125 per hour (All material or equipment required to complete the job will be billed separately as incurred)
* Client understands that our company has no control over any cellular or telecommunication transportation services, it’s quality or coverage, therefore, CLIENT holds COMPANY, AFFILIATES AND PARTNERS harmless and not responsible for the service interruption due to no Internet, network connectivity or any and all external causes.
WHO IS THIS AGREEMENT WITH?
These T&Cs are an agreement between you and us, Witzense.com USA, Inc., and our controlled subsidiaries, assignees, and agents.
HOW DO I ACCEPT THESE T&Cs?
You accept these T&Cs by doing any of the following things:
activating, using or paying for the Service or a Device; or
opening the Device box.
Receiving products via parcel, mail, or delivery
Installing devices or hardware
Requesting product support or technical information
If you don’t want to accept these T&Cs, don’t do any of these things.
When you accept, you're telling us that you are of legal age (which means you are either legally emancipated, or have reached the age of majority as defined in your jurisdiction) and that you are able to enter into a contract. If you accept for an organization, you're telling us that you are authorized to bind that organization, and references to "you" in these T&Cs may mean the organization.
HOW DO I RESOLVE DISPUTES WITH WITZENSE.COM?
By accepting these T&Cs, you are agreeing to resolve any dispute with us through binding arbitration or small claims dispute procedures (unless you opt out), and to waive your rights to a jury trial and to participate in any class action suit. For additional terms and conditions governing a dispute between us, including how to dispute Charges assessed to you on your bill, choice of law, disclaimers of certain warranties, limitations of liabilities, and your indemnification obligations, see “Other Terms Regarding Dispute Resolution” below.
Dispute Resolution and Arbitration. YOU AND WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OUR PRIVACY NOTICE, OUR SERVICES, DEVICES OR PRODUCTS, INCLUDING ANY BILLING DISPUTES, WILL BE RESOLVED BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT. This includes any claims against other parties relating to Services or Devices provided or billed to you (such as our suppliers, dealers, authorized retailers, or third-party vendors) whenever you also assert claims against us in the same proceeding. You and we each also agree that the Agreement affects interstate commerce so that the Federal Arbitration Act and federal arbitration law, not state law, apply and govern the enforceability of this dispute resolution provision (despite the general choice of law provision set forth below). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
For Puerto Rico customers, references to "small claims court" should be understood to mean the Puerto Rico Telecommunications Regulatory Board (“TRB”) for matters within the jurisdiction of said agency.
Notwithstanding the above, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE EARLIER OF THE DATE YOU PURCHASED A DEVICE FROM US OR THE DATE YOU ACTIVATED A NEW LINE OF SERVICE (the “Opt Out Deadline”). You must opt out by the Opt Out Deadline for each line of Service. You may opt out of these arbitration procedures by calling 1-888-928-0004 or via email at email@example.com . Any opt-out received after the Opt Out Deadline will not be valid and you will be required to pursue your claim in arbitration or small claims court.
For any and all disputes or claims you have, you must first give us an opportunity to resolve your claim by sending a written description of your claim to the address provided in the “How Do We Notify Each Other” Section below. You and we each agree to negotiate your claim in good faith. You agree that you may not commence any arbitration or court proceeding unless you and we are unable to resolve the claim within 120 days after we receive your claim description and you have made a good faith effort to resolve your claim directly with us during that time.
If we are unable to resolve your claim within 120 days despite those good faith efforts, then either you or we may start arbitration or small claims court proceedings. To begin arbitration, you must send a letter requesting arbitration and describing your claim to our registered agent (see the “How Do We Notify Each Other” section below) and to the American Arbitration Association (“AAA”). The arbitration of all disputes will be administered by the AAA under its Consumer Arbitration Rules in effect at the time the arbitration is commenced, except to the extent any of those rules conflicts with our agreement in these T&Cs, in which case these T&Cs will govern. The AAA rules are available at www.adr.org. If the claims asserted in any request or demand for arbitration could have been brought in small claims court, then either you or we may elect to have the claims heard in small claims court, rather than in arbitration, at any time before the arbitrator is appointed, by notifying the other party of that election in writing. The arbitration of all disputes will be conducted by a single arbitrator, who shall be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. Upon filing of the arbitration demand, we will pay or reimburse all filing, administration, and arbitrator fees. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, we agree not to seek attorneys’ fees in arbitration even if permitted under applicable law.
Class Action Waiver. YOU AND WE EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, REPRESENTATIVE, MASS, OR CONSOLIDATED ACTION. If we believe that any claim you have filed in arbitration or in court is inconsistent with this limitation, then you agree that we may seek an order from a court determining whether your claim is within the scope of this class action waiver. If a court or arbitrator determines in an action between you and us that any part of this Class Action Waiver is unenforceable with respect to any claim, the arbitration agreement and Class Action Waiver will not apply to that claim, but they will still apply to any and all other claims that you or we may assert in that or any other action. If you opt out of the arbitration provision as specified above, this Class Action Waiver provision will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt out requirements above.
Jury Trial Waiver. If a claim proceeds in court rather than through arbitration, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
1.1 “Account” means the accounts Customer creates, via the Hosted Software, to access Customer Data.
1.2 “Affiliates” means any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Customer.
1.3 “Apps” means software applications for smartphones and tablets distributed by Witzense.com through Google Play or through the Apple App Store.
1.4 "Authorized User" means Customer’s employees, Affiliates, and/or contractors whom Customer authorizes to use the Witzense.com Software strictly on its behalf.
1.5 “Customer” or "you" means the company or legal entity for which you are accepting these Terms and its Affiliates who enter into Order Forms (for each such Affiliate, solely with respect to Order Forms entered into by it and for so long as it remains a Customer Affiliate).
1.6 “Customer Data” means data captured by Customer’s use of the Hardware, data submitted by Customer or by a third party (including from or through Non-Witzense.com Products) on Customer's behalf into Apps and Hosted Software, and the analysis, reports, and alerts generated by the Products containing such data. For the avoidance of doubt, Customer Data does not include any Witzense.com Software.
1.7 "Documentation" means any Product training, technical services, or documentation made available to Customer through the Witzense.com website or otherwise made available to Customer by Witzense.com.
1.8 "Equipment" means the vehicle, equipment, asset, building, structure, or item into which Hardware is installed.
1.9 “Firmware” means software embedded in or otherwise running on the Hardware.
1.10 “Hardware” means the Witzense.com hardware devices such as gateways, cameras, sensors, controllers, vision systems, and accessories, that Customer has purchased, received for a free trial, or has otherwise acquired via an Order Form.
1.11 “Hosted Software” means Witzense.com's cloud-hosted software platform, including the interface accessed online.
1.12 "License Expiration Date" means the later of (i) the original license termination date set forth in the applicable Order Form or other contract you entered into for the original purchase of Products or under which Products were originally made available to you ("Initial Term"), and (ii) if applicable to such contract the end of the then-active Renewal Term (as defined below).
1.13 “Malicious Code” means code, files, scripts, agents, software, or programs intended to do harm or allow for unauthorized access, including, for example, viruses, worms, time bombs, and Trojan horses.
1.14 “Non-Witzense.com Products” means any web-based, offline, or mobile applications, or other resources, users, data, systems, networks, products, services, vehicles, equipment’s, hardware, or software functionality that is provided by Customer or a third party and that interoperates and/or exchanges data with the Products.
1.15 “Order Form” means the quote issued by Witzense.com and executed by the Customer setting forth the purchase or procurement of Witzense.com Products and/or licenses thereto, or a purchase order or similar ordering document issued by Customer to Witzense.com setting forth the purchase or procurement of Witzense.com Products and/or licenses thereto, which Customer shall ensure references, and reflects identical terms and conditions to, the quote issued by Witzense.com for such purchase or procurement. By entering into an Order Form hereunder, a Customer Affiliate agrees to be bound by these Terms as if it were Customer.
1.16 "Pre-Launch Offerings” means any Witzense.com hardware and/or software offerings and related documentation and accessories that are not generally available to Witzense.com customers and that may be in the research, development, prototyping, and/or testing phase.
1.17 “Products” means the Hardware and Services. For the avoidance of doubt, Products does not include any Non-Witzense.com Products.
1.18 "Professional Services" means the training, consulting, or other professional services that are provided by Witzense.com to Customer (i) as purchased separately by Customer pursuant to an Order Form, (ii) in Witzense.com’s sole discretion, or (iii) as otherwise mutually agreed between the Parties.
1.19 “Refund” means an amount refunded to the Customer (or in Witzense.com's sole discretion to any third party who paid Witzense.com for Customer's procurement of Products under the applicable Order Form, including a reseller, Lender, or other third party) pursuant to these Terms equal to (i) fees pre-paid to Witzense.com for the time remaining in an applicable license term prorated to the period of time between (a) the date of termination and (b) the License Expiration Date for the applicable Order Form, and (ii) fees paid to Witzense.com for the cost of purchased Hardware (if applicable). For the avoidance of doubt, a Refund may only be issued as expressly provided hereunder.
1.20 “Witzense.com Software” means the Apps, Firmware, and Hosted Software, and any improvements, modifications, patches, updates, and upgrades thereto that Witzense.com develops or provides in connection with these Terms, and Support Services.
1.21 “Witzense.com Software Systems” means the Witzense.com Software and any networks, systems, products, services, or data of Witzense.com, its providers, its partners, its customers, or any other third party, integrated with or connected to such Witzense.com Software.
1.22 “Services” means the Witzense.com Software and Professional Services.
1.23 “Support Services” means the customer support services described at https://www.witzense.com/support, and Documentation, but excluding any Professional Services.
1.24 “Terms” means these Terms of Service, together with any amendments or addenda that modify these Terms of Service.
2. Agreement to Terms. By clicking a box indicating your acceptance of these Terms, by executing an Order Form or other contract that references these Terms, by purchasing Products or otherwise entering into an Order Form or other contract with Witzense.com, a Witzense.com reseller, or any other entity or individual for the purchase of Products or under which Products are made available to you, or by otherwise accessing and/or using the Products, whichever is the earlier, you accept and agree to be bound by these Terms. If you do not agree to these Terms or you are not authorized to access and/or use the Products, you shall not access or use the Products. If you are accessing and/or using the Products on behalf of a company (such as your employer) or other legal entity that is our Customer, you agree to these Terms on behalf of such company or other legal entity, and you represent and warrant that you have the authority to bind such company or other legal entity to these Terms. If you have entered into a separate contract with Witzense.com with respect to your purchase of Products or under which Products are made available to you, to the extent there is a conflict between such separate contract with Witzense.com and these Terms, such separate contract with Witzense.com shall prevail. References to “you” and “your” in these Terms refer to that company or other legal entity, our Customer. You may not use the Products if you are our direct competitor, as determined in our sole discretion, except with our prior written consent.
3. Changes to Terms or Services. Witzense.com may modify the Terms at any time, in our sole discretion. If Witzense.com does so, Witzense.com will inform you by posting the modified Terms to the Services or our website or through other communications with you, our Customer. It is important that you review the Terms whenever Witzense.com modifies them because if you continue to use the Products after Witzense.com has posted or otherwise informed you of the modified Terms, you are indicating to Witzense.com that you agree to be bound by the modified Terms. If you do not agree to be bound by the modified Terms, then you may not continue to use the Products.
4. License. Subject to the terms and conditions specified in these Terms or an applicable Order Form, Witzense.com grants Customer a non-sublicensable, non-exclusive, non-transferable, limited and revocable license to use and access the Witzense.com Software in accordance with the Documentation, starting from the license start date set forth in the applicable Order Form until the License Expiration Date set forth in such Order Form or the earlier termination of such Order Form or these Terms. The Support Services and the Hosted Software SLA at https://www.Witzense.com/support/ are included as part of the license grant and contingent upon a valid license. The Firmware license for each item of Hardware is contingent upon Customer purchasing and maintaining a valid license to the Witzense.com Software. For clarity, the license for Witzense.com Software that is provided in conjunction with a Hardware unit is only valid for use with that Hardware unit, unless the Hardware unit is replaced pursuant to the Hardware Warranty Policy section set forth at https://www.Witzense.com/support/.
5. License Restrictions. Customer agrees not to do or attempt to do any of the following without Witzense.com’s express prior written consent: (i) resell, white label, or reproduce the Witzense.com Software or any individual element within the Witzense.com Software, Witzense.com’s name, any Witzense.com trademark, logo or other proprietary information, or the layout and design of any part of the Witzense.com Software; (ii) access, tamper with, or use non-public areas of the Witzense.com Software Systems; (iii) gain unauthorized access to, interfere with, disable, or disrupt the integrity or security of the Witzense.com Software Systems; (iv) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented to protect the Witzense.com Software Systems or enforce a contractual usage limit; (v) transfer, copy, modify, sublicense, lease, lend, rent or otherwise distribute the Witzense.com Software to any third party; (vi) decipher, decompile, disassemble or reverse engineer any aspect of the Witzense.com Software, in whole or in part; (vii) impersonate or misrepresent an affiliation with any person or entity; (viii) use or access the Witzense.com Software for any competitive purpose; (ix) perform benchmark testing on the Witzense.com Software; (x) use the Witzense.com Software to store or transmit Malicious Code; (xi) use the Products to store, publish, submit/receive, upload/download, post, use, copy, or otherwise produce, transmit, or distribute infringing, libelous, defamatory, harassing, threatening, or otherwise unlawful or tortious material; or to store, publish, submit/receive, upload/download, post, use, copy, or otherwise produce, transmit, or distribute material in violation of third-party privacy rights; (xii) violate any applicable law or regulation; or (xiii) authorize, permit, encourage, or enable any other individual or entity to do any of the foregoing. Witzense.com has the right to investigate violations of this Section or conduct that affects the Witzense.com Software Systems and immediately suspend or terminate any or all of Customer’s access to the Witzense.com Software if it reasonably suspects or determines that Customer has violated this Section. Witzense.com may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
6. Hardware Installation and Equipment Maintenance. Customer is responsible for installation of the Hardware and ongoing maintenance of any Equipment. Depending on the Customer’s intended use of the Products, Customer may require professional installation of the Hardware or ongoing professional maintenance of any Equipment. If Customer is unable to install the Hardware or to conduct such ongoing maintenance, or if Customer is uncertain that Customer has the requisite skills and understanding, Customer agrees to consult with a qualified installer or maintenance professional. Improper installation of the Hardware or maintenance of the Equipment can lead to damage of such Equipment or dangerous or life-threatening conditions, which can cause property damage, bodily injury, and/or death. Customer may notify Witzense.com if Customer did not order the correct Hardware cables for Hardware installation. For more information on Witzense.com's Cable Exchange Policy, please visit https://www.Witzense.com/support/
7. Product Updates.
7.1 General. Witzense.com continuously improves the Products, and may from time to time (i) update the Witzense.com Software and cause Firmware updates to be automatically installed onto Hardware; (ii) update the Apps; or (iii) upgrade Hardware equipment to newer models. Witzense.com may change or discontinue all or any part of the Products, at any time and without notice, at Witzense.com’s sole discretion. If Witzense.com discontinues supporting a Hardware model and the associated Witzense.com Software that you have ordered from Witzense.com in accordance with these Terms prior to the applicable License Expiration Date without offering to replace them with an updated or comparable version or model, you may terminate the applicable Order Form with respect to the applicable Products and request a Refund for such Products. Updates or upgrades may include security or bug fixes, performance enhancements, or new functionality, and may be issued with or without prior notification to Customer. Customer hereby consents to such automatic updates.
7.2 Pre-Launch Offerings. From time to time, Witzense.com may in its sole discretion make Pre-Launch Offerings available to Customer. Should Customer opt to use Pre-Launch Offerings: Customer agrees to (i) assume sole responsibility and all risk, and waive and release Witzense.com from any claims directly or indirectly arising from or related to the Pre-Launch Offerings; and (ii) without limitation, defend, indemnify, and hold harmless Witzense.com from any third party claims directly or indirectly arising from or related to the Pre-Launch Offerings. PRE-LAUNCH OFFERINGS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. Customer acknowledges that Pre-Launch Offerings that may interact, interface, or integrate with third party products and/or services may not be validated or supported by such third parties and may interfere with the operations of or void warranties for such third party products and/or services. Except as explicitly set forth otherwise in this Section 7.2, Pre-Launch Offerings are subject to the same terms and conditions as are applicable to a “Product” under these Terms
7.3 Feedback. Customer agrees to use commercially reasonable efforts to provide feedback to Witzense.com regarding the Products and agrees that Witzense.com shall have all rights, title, and interest in and to all comments, suggestions, and other feedback (collectively, “Feedback”) provided by Customer to Witzense.com related to the Products. Customer shall and hereby does irrevocably transfer and assign to Witzense.com all right, title, and interest it may have in such Feedback to Witzense.com, and Witzense.com hereby accepts such transfer.
8. Payment, Shipping, and Delivery. Customer’s payment and billing terms are set forth in the Order Form. Unless otherwise set forth herein or in the applicable Order Form, all payments made to Witzense.com under an Order Form are non-refundable. Witzense.com may submit Customer contact information and information related to the timeliness of Customer’s payments to credit rating, credit reporting, or similar agencies. Customer is responsible for all payments of applicable taxes, however designated or incurred under these Terms, and Customer shall reimburse Witzense.com for any taxes paid or payable on behalf of Customer. All shipments are FOB (2010) Origin, Freight Prepaid, and Charged Back.
9. Accounts. Customer shall be solely responsible for administering and protecting Accounts. Customer agrees to provide access to the Witzense.com Software only to Authorized Users, and to require such Authorized Users to keep Account login information, including user names and passwords, strictly confidential and not provide such Account login information to any unauthorized parties. Customer is solely responsible for monitoring and controlling access to the Witzense.com Software and maintaining the confidentiality of Account login information and any provided API tokens. In the event that Customer or any Authorized User becomes aware that the security of any Account login information has been compromised, Customer shall immediately notify Witzense.com and de-activate such Account or change the Account’s login information. Authorized Users may only use the Witzense.com Software strictly on behalf of Customer and subject to the terms and conditions applicable to Customer herein. Customer is responsible and liable for any breach by an Authorized User of his or her obligations hereunder.
10. Customer Data.
10.1 Ownership and Usage. Customer Data is accessible via the Witzense.com Software. Customer owns all Customer Data, and Witzense.com will keep Customer Data confidential. Customer hereby grants to Witzense.com a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, display, and distribute Customer Data in connection with operating and providing the Products. Witzense.com will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data. Witzense.com will not share Customer Data without Customer consent, except when the release of data is compelled by law or permitted herein. Witzense.com may collect and use analytics, statistics or other data related to the Customer Data and Customer’s use of the Products (i) in order to provide the Products to Customer; (ii) for statistical reporting and use (provided that such data is not personally identifiable); or (iii) to monitor, analyze, develop upon, maintain, and improve the Products; including by providing such data to third party services for the aforementioned purposes. The right to use such data shall survive the termination of these Terms, unless legally prohibited or Customer requests in writing upon termination that such use be limited to non-personally identifiable data. Customer may export Customer Data at any time during the term of these Terms through the export features in the Witzense.com dashboard or via the Witzense.com API. Customer acknowledges that some information may not be exportable via the Witzense.com dashboard or the API. If these Terms terminate or expire and Customer does not renew, Customer Data may be immediately deleted.
10.2 Customer Data Representation and Warranty. Customer represents and warrants that: (i) Customer will obtain all rights and provide any disclosures to or obtain any consents, approvals, authorizations and/or agreements from any employee or third party that are necessary for Witzense.com to collect, use, and share Customer Data in accordance with these Terms (ii) no Customer Data infringes upon or violates any individual or entity's intellectual property rights, privacy, publicity or other proprietary rights and (iii) Customer will adhere to all applicable state, federal and local laws and regulations in the conduct of its business in relation to Witzense.com and its receipt and use of the Products. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS WITZENSE.COM AND, IF RELEVANT, ITS SUBPROCESSORS AGAINST ANY LIABILITIES, DAMAGES, DEMANDS, LOSSES, CLAIMS, COSTS, FEES (INCLUDING LEGAL FEES), AND EXPENSES IN CONNECTION WITH ANY THIRD-PARTY LEGAL OR REGULATORY PROCEEDING ARISING FROM ANY ACT OR OMISSION OF THE CUSTOMER IN RELATION TO CUSTOMER INSTRUCTIONS OR FROM THE CUSTOMER’S BREACH OF THIS SECTION 10.2.
10.3 Data Protection Addendum. The "Data Protection Addendum" at sets forth the Parties’ agreement with respect to the terms governing any Processing of Personal Data by Witzense.com on the Customer’s behalf pursuant to these Terms. The Data Protection Addendum forms part of these Terms and supersedes any prior agreements regarding Customer Personal Data. The terms “Processing”, “Personal Data”, and “Customer Personal Data” used in this Section are all defined in the Data Protection Addendum.
11.1 Confidential Information. “Confidential Information” means any technical, financial, or business information disclosed by one Party to the other Party that: (i) is marked or identified as “confidential” or “proprietary” at the time of such disclosure; or (ii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Witzense.com Confidential Information includes any information related to the Products, including the pricing thereof, Pre-Launch Offerings, Witzense.com Software Systems, or Witzense.com customers or partners, and any data or information that Witzense.com provides to Customer in the course of providing the Products to Customer. Customer Confidential Information includes Customer Data and any data or information that Customer provides to Witzense.com for the purpose of evaluating, procuring, or configuring the Services (for example, makes and models of vehicles or equipment, vehicle routes, or similar information). Confidential Information excludes information that: (i) is now or hereafter becomes generally known or available to the public, through no breach of the receiving Party’s confidentiality obligations; (ii) was known, without restriction as to use or disclosure, by the receiving Party prior to receiving such information from the disclosing Party; (iii) is acquired by the receiving Party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving Party without use or knowledge of or reference to any Confidential Information of the disclosing Party.
11.2 Confidentiality Obligations. The receiving Party agrees: (i) to maintain the disclosing Party’s Confidential Information in strict confidence; (ii) not to disclose such Confidential Information to any third parties (except for any Affiliates, employees, agents or third party service providers of receiving Party in performing under these Terms under reasonable confidentiality obligations, or except as authorized by disclosing Party); and (iii) not to use any such Confidential Information for any purpose except to perform under these Terms or as authorized by the disclosing Party. Notwithstanding anything to the contrary in these Terms, the receiving Party may disclose the disclosing Party’s Confidential Information to the extent required by law or regulation, provided that, unless prohibited by applicable law or regulation, the receiving Party uses reasonable efforts to give the disclosing Party advance notice of such requirement and reasonably cooperates with the disclosing Party at the disclosing Party’s expense in preventing, limiting, or protecting such disclosure.
12. Proprietary Rights.
12.1 Witzense.com Software. Witzense.com and its licensors exclusively own all right, title and interest in and to the Witzense.com Software that Customer accesses or licenses, including all associated intellectual property rights. Customer acknowledges that the Witzense.com Software is protected by copyright, trademark, and other laws of the United States and foreign countries. Customer agrees not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Customer shall and hereby does irrevocably transfer and assign to Witzense.com all right, title, and interest it may have in the Witzense.com Software to Witzense.com and Witzense.com hereby accepts such transfer. No ownership rights are being conveyed to Customer under these Terms. Except for the express rights granted herein, Witzense.com does not grant any other licenses or access rights, whether express or implied, to any other Witzense.com software, services, technology or intellectual property rights.
12.2 Firmware. The Firmware is licensed, not sold. Except in the case of a free trial and subject to the Product Trial Hardware Returns section set forth at https://www.Witzense.com/support/, Customer owns the Hardware on which the Firmware is recorded.Witzense.com retains ownership of the copy of the Firmware itself, including all intellectual property rights therein. Customer acknowledges that the Firmware is protected by patent, copyright, trademark, and other laws of the United States and foreign countries. Witzense.com reserves all rights in the Firmware not expressly granted to Customer in these Terms. Customer acknowledges and agrees that portions of the Firmware, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Witzense.com and its licensors.
13. Wifi Data Usage. The Enterprise Vehicle Gateway License (LIC-VG-ENT) includes up to 500 MB per month of WiFi data. No other Vehicle Gateway license includes WiFi data, unless identified otherwise in the applicable Order Form together with the magnitude of data included. Connectivity between the Vehicle Gateway and Witzense.com Software does not count towards the monthly WiFi data provision. Witzense.com reserves the right to limit access to personal entertainment streaming services. Data usage above the monthly threshold may result in the reduction of connection speeds, the restriction of connectivity, the interruption of connectivity, or some combination thereof. Restriction or interruption of connectivity will not impact the function of HOS Logs. Customer may track data usage from the Gateways page within the Settings section of the Witzense.com dashboard.
14. Non-Witzense.com Products. The Products may contain links to or have the ability to integrate or interoperate with, import or export data to or from, provide access to, or be accessed by Non-Witzense.com Products (collectively, “Non-Witzense.com Product Integrations”). If Customer opts to use any Non-Witzense.com Product Integrations, including but not limited to with respect to the exchange of data between Products and Non-Witzense.com Products, Customer agrees to: (i) assume sole responsibility for and all risk arising from Customer’s use of Non-Witzense.com Product Integrations and the content, functionality, or availability of any Non-Witzense.com Products, including waiving and releasing Witzense.com from any claims directly or indirectly related thereto; and (ii) without limitation, defend, indemnify, and hold harmless Witzense.com from any third party claims directly or indirectly arising from or related to Customer’s use of any Non-Witzense.com Product Integrations. WITZENSE.COM PROVIDES NON-WITZENSE.COM PRODUCT INTEGRATIONS “AS IS” WITHOUT WARRANTY OF ANY KIND AND ONLY AS A CONVENIENCE.
15. Publicity. Customer hereby grants Witzense.com permission to use the Customer name and logo on Witzense.com’s website, press releases, customer lists, SEC filings, earnings calls, and investor and marketing materials to list Customer as a customer. However, Witzense.com will not use Customer’s name, trademarks, or logos in any other way without Customer’s prior consent. Customer agrees to abide by the terms of Witzense.com’s Marks Usage Agreement available at https://www.Witzense.com/support/
16. Term. The term of these Terms begins upon the date on which you accept these Terms, by clicking a box indicating your acceptance, by executing an Order Form or other contract that references these Terms, by purchasing Products or otherwise entering into an Order Form or other contract with Witzense.com, a Witzense.com reseller, or any other entity or individual for the purchase of Products or under which Products are made available to you, or by otherwise accessing and/or using the Products, whichever is the earliest, and shall continue until (i) the License Expiration Date for the last active Order Form or other contract you entered into for the purchase of Products or under which Products are made available to you, (ii) you are no longer authorized to access and/or use the Products, or (iii) these Terms are otherwise terminated earlier as provided hereunder, whichever is earliest.
16.1 Renewal. Unless you notify Witzense.com in writing of your intent to cancel the applicable Order Form or other contract you entered into for the purchase of Products or under which Products are made available to you at least thirty (30) days prior to the License Expiration Date, Witzense.com may renew your license term, effective on the License Expiration Date, for up to the greater of (i) one year, and (ii) the same period as the immediately preceding license term(or, in Witzense.com’s discretion, shorter periods to align license expiration dates across multiple active orders) (each such period, or any renewal license term of the applicable Products after the Initial Term, a “Renewal Term”) at any time up to ninety (90) days after the License Expiration Date. Subject to Witzense.com’s renewal rights set forth in the foregoing sentence, you and Witzense.com may mutually agree to enter into a new Order Form to renew your license term upon the License Expiration Date, which new Order Form may include additional or different Products or license terms to the extent mutually agreed. If Witzense.com auto-renews your license term without Customer’s execution of a new Order Form as described in the first sentence of this paragraph, your payment method will remain the same as indicated on the applicable original Order Form (e.g., monthly if you were allowed monthly payments, or yearly if you were allowed annual payments or upfront payment). If your license term is renewed after termination of the immediately preceding license term and Witzense.com in its sole discretion allows you to continue using the applicable Products during such interim period, these Terms shall apply to such use. Please email support@Witzense.com.com for any questions regarding automatic renewal.
16.2 Termination. Witzense.com may terminate these Terms, any Order Form, and your access to and use of the Witzense.com Software at its sole discretion, at any time upon notice to you. However, if Witzense.com so terminates for its convenience and not as otherwise set forth in these Terms or the applicable Order Form or due to your breach thereof, then Witzense.com will provide you with a Refund. Unless otherwise set forth herein or in the applicable Order Form, an Order Form cannot be terminated prior to the License Expiration Date.
16.3 Effect of Termination. Upon any termination or expiration of these Terms, the following Sections of these Terms will survive: 5 (License Restrictions), 7.2 (Pre-Launch Offerings), 7.3 (Feedback), 8 (Payment, Shipping, and Delivery), 10 (Customer Data), 11 (Confidentiality), 12 (Proprietary Rights), 16 (Term), 17 (Warranty Disclaimers), 18 (Limitation of Liability), 19 (Dispute Resolution), 20 (Governing Law), and 21 (General Terms). At the Customer’s request, and subject to Witzense.com’s data retention and backup policies, Witzense.com shall delete and remove any Customer Data on the Hosted Software.
17. Warranty and Warranty Disclaimers.
17.1 Hardware Warranty. Witzense.com provides a Hardware warranty as set forth in the Hardware Warranty Policy section of its Hardware Warranty and RMA Policy at https://www.Witzense.com/support/
17.2 Warranty Disclaimers. EXCEPT AS EXPRESSLY PROVIDED UNDER THE LIMITED HARDWARE WARRANTY PROVIDED UNDER SECTION 17.1 (HARDWARE WARRANTY), THE PRODUCTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WITZENSE.COM EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ACTIVE DRIVER AND PERSONNEL SUPERVISION IS REQUIRED EVEN WHEN THE PRODUCTS ARE IN USE, AND THE PRODUCTS ARE NOT A CRASH OR ACCIDENT AVOIDANCE OR PREVENTION SYSTEM. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY AND ALL SPEEDING, TOLLS, AND OTHER TRAFFIC OR LEGAL VIOLATIONS FOR ITS VEHICLES AND EQUIPMENT EVEN WHEN THE PRODUCTS ARE IN USE. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PRODUCTS ARE NOT A SUBSTITUTE FOR SAFE AND LAWFUL DRIVING AND EQUIPMENT USE OR OTHER APPROPRIATE PERSONNEL OR WORKPLACE CONDUCT AS APPLICABLE AND THAT CUSTOMER SHALL NOT USE THE PRODUCTS AS A CRASH OR ACCIDENT AVOIDANCE OR PREVENTION SYSTEM. Witzense.com makes no warranty that the Services will meet Customer’s requirements or be available on an uninterrupted, secure, or error-free basis. Witzense.com makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any analytics or Customer Data.
18. Limitation of Liability.
18.1 No Consequential Damages. NEITHER WITZENSE.COM NOR CUSTOMER NOR ANY OTHER ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PRODUCTS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS LEGALLY PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.
18.2 Cap. EXCEPT AS TO ANY EXPRESS INDEMNIFICATION OBLIGATION SET FORTH IN THESE TERMS, AND EXCEPT AS TO CUSTOMER’S PAYMENT OBLIGATIONS UNDER AN ORDER FORM, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY, INCLUDING TO THE OTHER PARTY AND ANY OF ITS AFFILIATES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS EXCEED THE AMOUNTS CUSTOMER HAS PAID TO WITZENSE.COM HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE DAMAGE, OR IF CUSTOMER HAS NOT HAD ANY PAYMENT OBLIGATIONS TO WITZENSE.COM (FOR EXAMPLE THROUGH A FREE TRIAL), ONE HUNDRED DOLLARS ($100).
18.3 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WITZENSE.COM AND CUSTOMER.
19. Dispute Resolution.
19.1. Arbitration. Any dispute arising from or relating to these Terms or Customer's use of the Products that cannot be resolved by the Parties within a period of sixty (60) days after notice of a dispute has been given by one Party hereunder to the other, shall be finally and exclusively settled by confidential arbitration in San Francisco, California, United States, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (“JAMS Rules”) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes. The Parties agree that such arbitrator(s) shall have full authority to award preliminary and permanent injunctive relief, damages, and any other relief available in law, at equity, or otherwise pursuant to applicable law and that any emergency arbitrator(s) appointed in accordance with the JAMS Rules shall have authority to grant emergency relief in accordance with such rules.
19.1. Class Action Waiver. Any proceedings to arbitrate or resolve any dispute arising from or relating to these Terms or Customer’s use of the Products in any forum will be conducted solely on an individual basis and not as a class action, consolidated action, private attorney general action, or other representative action. You expressly waive your right to file a class action, participate in a class action, or seek relief on a class basis. Unless Witzense.com agrees in writing otherwise, the arbitrator or other adjudicator will not consolidate more than one person or entity’s claims.
20. Governing Law. These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. Subject to the agreement to arbitrate set forth herein, exclusive jurisdiction and venue for actions arising from or related to these Terms or Customer's use of the Products will be the state and federal courts located in San Francisco County, California, United States, and both Parties consent to the jurisdiction of such courts with respect to any such actions.
21. General Terms.
21.1 Miscellaneous. These Terms together with any applicable Order Form constitute the entire and exclusive understanding and agreement between Witzense.com and you regarding the Products and the subject matter hereof, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Witzense.com and you regarding the Products and the subject matter hereof. If there is a conflict between the terms of an Order Form and these Terms, then the terms of the Order Form controls over these Terms. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Witzense.com’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Witzense.com may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure solely to the benefit of the Parties, their successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity or Party Affiliate, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. Customer shall have no right to bring any claims under these Terms against any Witzense.com Affiliate, employee, director, officer, or shareholder. Any notices or other communications provided by Witzense.com under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; (ii) by posting to Witzense.com’s website; or (iii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Either Party’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of both Parties. Except as expressly set forth in these Terms, the exercise by either Party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
21.2 Acceptable Use. Customer may not, and may not allow any third-party, including its Authorized Users, to (a) use the Products: (i) for any inappropriate, improper, discriminatory, illegal, or otherwise harmful purpose or (ii) to violate, or encourage the violation of, the rights of others which includes, without limitation, legal rights (e.g., intellectual property or proprietary rights) or human rights (i.e., the rights inherent to all human beings regardless of race, sex, nationality, ethnicity, language, religion, or any other status, including without limitation the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more), each as reasonably determined by Witzense.com; or (b) engage in abusive, harassing, threatening, offensive, or otherwise improper conduct towards Witzense.com or its employees, agents, service providers, partners, or other customers. To report any potential misuse or violation, please email support@Witzense.com.com .
21.3 Export Restrictions. Customer shall not use the Products in violation of applicable export control or sanctions laws of the United States or any other applicable jurisdiction. Customer shall not use the Products if Customer is or is working on behalf of any restricted person or entity, including those listed on the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Department of Commerce Denied Person's List or Entity List, the State Department's Debarred list, or similar denied parties list without prior authorization by the U.S. Government. Customer shall not export, re-export, or transfer the Products if for use directly or indirectly in any prohibited activity described in Part 744 of the U.S. Export Administration Regulations, including certain nuclear, chemical or biological weapons, rocket systems or unmanned air vehicle end-uses.
21.4 Force Majeure. Witzense.com is not liable or responsible, nor shall be deemed to have defaulted under or breached these Terms, for any failure to perform or delay in performing its obligations under these Terms due to an event of force majeure. An event of force majeure is any event or circumstance beyond Witzense.com’s reasonable control, such as war, hostilities, act of God, earthquake, flood, fire, or other natural disaster, strike or labor conditions, material shortage, epidemic, disease, government action, or failure of utilities, transportation facilities, or communication or electronic systems.
21.5 Financed Purchases. If you are accessing the Products through a financing entity (“Lender”), the terms in this Section shall apply. Any obligation you may have to the Lender is absolute and unconditional, not subject to any setoff or counterclaim as between you and Lender, unless agreed to otherwise in the separate financing agreement (“Financing Agreement”) you enter into with the Lender to finance your purchase of the Products. You acknowledge and agree that when you execute the Financing Agreement, the Lender is prepaying Witzense.com for the Products on your behalf and such prepayment is final and cannot be refunded by Witzense.com unless otherwise provided under these Terms. You accept the risk that any Products are not provided or are not satisfactory; provided this sentence does not affect your rights against Witzense.com as limited by these Terms, or Witzense.com's obligations to you under these Terms. If you choose to discontinue use of the Products for any reason, you will continue to be liable for any outstanding payment obligations specified in the Financing Agreement. If you have any claim against or dispute with Witzense.com, you may not take action by reason of such claims against Lender. If you are purchasing through a Lender, Witzense.com may terminate your access to the Products should you breach these Terms or the terms of the Financing Agreement. Any Refunds issued by Witzense.com under these Terms for Product purchases financed under a Financing Agreement may in Witzense.com's sole discretion be remitted to the Lender, and any impact such remittance may have on your remaining payment obligations to Lender is governed by the Financing Agreement.
21.6 Contact Information. If you have any questions about these Terms or the Products, please contact Witzense.com at firstname.lastname@example.org
*CHOICE OF LAW
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state or jurisdiction in which your billing address in our records is located, without regard to the conflicts of laws rules of that state or jurisdiction. Foreign laws do not apply. Arbitration or court proceedings must be in the county and state or jurisdiction in which your billing address in our records is located, but not outside the U.S.; or Puerto Rico.
*Disclaimer Of Warranties. Except for any written warranty that may be provided with a Witzense.com Device you purchase from us, and to the extent permitted by law, the Services and Devices are provided on an “as is” and “with all faults” basis and without warranties of any kind. We make no representations or warranties, express or implied, including any implied warranty of merchantability or fitness for a particular purpose, including security or authentication purposes, concerning your Service or your Device. While Witzense.com strives to protect customer accounts, Witzense.com does not guarantee security. You accept responsibility if you use your Service as a means of security or authentication for other accounts. We can’t and don’t promise uninterrupted or error-free Service and don’t authorize anyone to make any warranties on our behalf. This doesn’t deprive you of any warranty rights you may have against anyone else. We do not guarantee that your communications will be private or secure; it is illegal for unauthorized people to intercept your communications, but such interceptions can occur.
Services or Software provided by third parties (including voice applications), 911 or E911, text to 911, or other calling or messaging functionality, may work differently than services offered by us, or may not work at all. Please review all terms and conditions of such third-party products. When using these products, we are not responsible for the availability or reliability of 911 calls or text to 911 messages, or if inaccurate location information is provided to the 911 Communications Center. We cannot assure you that if you place a 911 call or text you will be found.
We are not responsible for any download, installation, use, transmission failure, interruption, or delay related to Content & Apps, or any third party content, services, advertisements, or websites you may be able to access by using your Device or the Services, even if charges for Content & Apps appear on your Witzense.com bill. You are responsible for maintaining virus and other Internet security protections when accessing third party Content & Apps or other services.
*Limitation of Liability. To the extent permitted by law, you and we each agree to limit claims for damages, or other monetary relief against each other to direct and actual damages regardless of the theory of liability. This means that neither of us will seek any indirect, special, consequential, treble, or punitive damages from the other. These disallowed damages include, but are not limited to, damages arising out of unauthorized access or changes to your Account, Service, or Device, or the use of your Account, Service, or Device by you or by others to authenticate, access, use or make changes to third party accounts, including financial, cryptocurrency, or social media accounts. This limitation and waiver also applies to any claims you may bring against any other party to the extent that we would be required to indemnify that party for such claim. You agree we are not liable for problems caused by you or a third party, by any act of nature, or by any criminal activity by someone unrelated to Witzense.com. You also agree we aren't liable for missed or deleted voicemails or other messages, for any information (like pictures) that gets lost or deleted if we work on your Device, or for failure or delay in connecting a call or text to 911 or any other emergency service. To the extent permitted by law, you and we each also agree that all claims must be brought within 2 years of the date the claim arises.
*Indemnification. You agree to defend, indemnify, and hold us and our directors, officers, and employees harmless from any claims arising out of use of the Services or Devices, breach of the Agreement, or violation of any laws or regulations or the rights of any third party by you, any person on your account, or any person you allow to use the Services or your Device.