Terms & Conditions

RHOMBUS SYSTEMS, Inc.

ENTERPRISE Terms of service

 

Last Updated: 8/3/2018

Welcome and thank you for your interest in Rhombus Systems, Inc.  (“Rhombus Systems”).  The following Terms of Service, and any additional terms incorporated by reference herein (collectively, the “Terms”), constitute the agreement between you and Rhombus Systems with respect to Rhombus Systems’ services, software, and products, including without limitation Rhombus Systems’ website, mobile apps, and cameras, made available to you through or in connection with the Rhombus Systems website located at http://www.rhombussystems.com, including without limitation all sub-domains thereof (collectively, the “Service”).  The Service is made available under these Terms solely to companies, business organizations, commercial enterprises, or other similar entities and is not intended for individual or personal use. If you are entering into these Terms on behalf of a company, business organization, commercial enterprise, or other similar entity, you represent that you have the authority to bind such entity to these Terms. The terms “you” and “your” refer to the company, business organization, commercial enterprise, or other similar entity using the Service.

1.           DEFINITIONS.

1.1                         “System Policies” means the various usage, configuration, security policies and guidelines relating to the use of the Camera, Device or Website that Customer may establish, configure, or implement through the Rhombus Security Solution, such as to monitor and track security-related issues; view or monitor video traffic from the Camera; share video content with other parties; restrict access to the Service; or otherwise administer the use of the Service.

1.2                         “Rhombus Materials” means all materials created, developed and provided by Rhombus to Customer in connection with or arising from the Service or these Terms and all other elements of the Service provided by Rhombus (for example, content, visual interfaces, interactive features, information, graphics, designs, and compilations), but excluding the Results (defined in Section 2.2) and Service Data (defined in Section 3.1).

1.3                         “Device” means the device(s) which are deployed to the Customer as part of the Services, and can include cameras or other sensors.

1.4                        Features” means the features and functionality of the Service selected in the Order and/or are otherwise made available to Customer by Rhombus.

1.5                        Feedback” means any suggestions, ideas, enhancement requests, feedback, recommendations and any other information, including without limitation information identifying potential errors, Customer provides to Rhombus, including without limitation in email or support forums or sites, but not including the Results and Service Data.

1.6                        Fees” means the Service fees payable by Customer to Rhombus, as described in the Order and as may be changed from time to time in accordance with these Terms.

1.7                        Order” means the physical, electronic, or online Rhombus order form, as applicable, which is accepted by Rhombus and describes the Services ordered by Customer.

2.           THE SERVICE

2.1                        License.  Subject to Customer’s compliance with these Terms, Rhombus hereby grants Customer the non-transferable right during the Term (defined in Section 7.1) to access and use the Service solely to establish, configure, implement and use the Service within the limitations set forth in any Order.  Customer is responsible for obtaining and configuring all required computer hardware, software and telecommunications services to access the Service.

2.2                        Rhombus Results.  The data collected by Customer’s use of the Service and Customer’s results, reports, and video data produced and made available to Customer through the Service (“Results”) shall be owned by Customer.  

2.3                        License Restrictions.  Customer shall have no rights or licenses with respect to the Service, Device, or Rhombus Materials except as expressly provided in these Terms. If Customer breaches any license or additional restrictions or otherwise exceeds the scope of the license granted herein, Customer may be subject to the prosecution and damages, as well as liability for infringement of intellectual property rights. Without limiting the generality of the foregoing, except as expressly provided in these Terms, Customer may not (a) copy, distribute, rent, sell, lease, lend, sublicense, or transfer the Service, Device, or Rhombus Materials; (b) make the Service, Device, or Rhombus Materials available to any third party; (c) to the extent valid under applicable law, decompile, reverse engineer, disassemble, or otherwise access or attempt to access to access the source code for the Service, Device, or Rhombus Materials; (d) create derivative works based on the Service, Device, or Rhombus Materials; (e) intentionally interfere with or damage, impair, or disable the operation of the Service, Device, or any customer’s enjoyment thereof, by any means, including without limitation uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code; or (f) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Service, Device, or Rhombus Materials or during the use and operation of the Service, Device, or Rhombus Materials.  Without limiting any of the foregoing, Customer will not provide third parties access to the Service, except authorized third party partners of service providers who administer or host the Service. 

2.4                        Support Forum. Customer’s use of any support forum or site made available by Rhombus (“Support Forum”), as a part of the Service, is governed by these Terms and the Rhombus Privacy Policy located at www.rhombussystems.com/privacy (the “Privacy Policy”).  Rhombus collects and retains as Service Data (as defined below) all comments and other content that Customer provides or posts in or to the Support Forum.  Customer acknowledges and agrees that Customer is responsible for all such comments and content and that Rhombus will not be liable for any such comments and content. Customer understands that the Support Forum is not private and any comments or other content that Customer provides or posts may be generally available during and after the Term.

2.5                        Ownership.  As between the parties, Rhombus retains all right, title and interest in and to the Service and any Rhombus Materials, including without limitation all intellectual property rights related to each of the foregoing.  As between the parties, Customer retains all right, title and interest in and to the Results and the Service Data (as defined in Section 3.1), including without limitation all intellectual property rights related to the foregoing. The Service and Rhombus Materials are protected by United States copyright, trade dress, patent, trade secret and trademark laws, international conventions, and all other applicable laws.  Customer agrees to assign and hereby does assign and otherwise transfer all right, title and interest in and to Feedback to Rhombus, without payment or restriction, and understands and agrees that Rhombus may use such Feedback in its sole discretion, without payment or restriction.

2.6                        Additional Restrictions.  Customer may not use any automated means, including without limitation agents, robots, scripts, or spiders, to access or manage Customer account(s) with the Service or Device. Customer agrees not to (a) remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service or Device, features that prevent or restrict the use or copying of any content accessible through the Service or Device, or features the enforce limitations on the use of the Service or Device, including without limitation any security or access control mechanism or other technological measures designed to protect the Service, Device or any content thereon; (b) gain unauthorized access to the Service or Device, or any part thereof, other accounts, computer systems or networks connected to the Service or Device, or any part thereof, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or Device or any activities conducted on the Service or Device; (c) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service or Device; (d) post any content or material to the Service (including without limitation the Support Forum) that infringes or violates any third party rights, including without limitation intellectual property or other proprietary rights, promotes or endorses false or misleading information or illegal activities, or endorses or provides instructional information about illegal activities or other activities prohibited by these Terms; (e) upload or otherwise transmit to the Service any information that is unlawful, harmful, harassing, defamatory, libelous, threatening, vulgar, sexually explicit, hateful or otherwise objectionable material of any kind or information that contains a link to such objectionable material; (f) solicit or attempt to solicit personal information from other users of the Service or Device; and (g) make unsolicited offers, advertisements, proposals, or send spam to other users of the Service or Device. Rhombus may suspend access to or use of the Service or Device as provided in Section 7.2 or terminate Customer’s Subscription, in whole or in part, at any time if Rhombus reasonably determines that such action is appropriate to (i) prevent errors or any other harm with respect to the Service, Device, or other properties, services, web sites and applications serviced by the Service, (ii) respond to Customer’s breach of these Terms, or (iii) limit Rhombus’ liability.  Rhombus shall notify Customer following any such suspension or termination.

2.7                        Beta or Free Trials.  Rhombus may offer a “beta” version or features of the Service (the “Beta Service”) or free trials of versions or features of the Service (“Free Trials”).  Rhombus will determine, at its sole discretion, the availability, duration (the “Trial Period”) and Features of each Beta Service and Free Trial.  THE BETA SERVICE AND FREE TRIALS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES.  Notwithstanding anything to the contrary in these Terms, in no event will Rhombus be liable to Customer or any third party for any damages or liability related to, arising out of, or caused by the Beta Service or Free Trials and any modification, suspension, or termination thereof.  If Rhombus permits Customer to use the Beta Service or Free Trials, Customer agrees to provide Feedback and respond to Rhombus’ questions or other inquiries regarding Customer use of the Beta Service or the Free Trial, as applicable.  Rhombus at its sole discretion shall determine whether or not to continue to offer any Beta Service or Free Trial.  Upon completion of a Trial Period, Customer will lose access to the applicable Beta Service and/or Free Trial and will be required to return any applicable Device(s), unless Customer is permitted to retain the Device(s) and add such features to Customer Subscription. Except as provided in this Section 2.8, these Terms govern Customer use of the Beta Service and the Free Trials, as part of the Service.

2.8                        Affiliates. Customer Affiliates may transact business during the term of this Agreement and place Orders, subject to acceptance by Rhombus, under these Terms.  References to “Customer” herein are deemed to refer to Customer Affiliates when Customer Affiliate places an Order accepted by Rhombus under these Terms.  Customer shall be responsible for all acts and omissions of Customer Affiliates as if such acts and omissions were committed by Customer. Customer Affiliate” as used herein means an entity that, directly or indirectly, controls, is controlled by or is under common control with Customer, where “control” means ownership of more than twenty percent (20%) of the outstanding shares or securities representing the right to vote for the election of Customer directors or other managing authority.

2.9                        Money-Back Guarantee. Notwithstanding anything else in this Agreement, Customer may terminate this Agreement for convenience within 60 days of the Effective Date; provided that Customer promptly ships back all Devices and other equipment sent by Rhombus as part of any Order. In such case, Customer shall receive a refund of all Fees paid during such 60-day period.

3.           DATA

3.1                        Data Rights.  In connection with the operation of the Service, Rhombus collects, receives, and generates data in connection with Customer use of the Service (such data, “Service Data”).  Customer acknowledges and agrees that Rhombus may, and Customer grants Rhombus a non-exclusive license during the Term to: (i)  collect, access, use, store, analyze, and display Service Data in connection with providing the Service to Customer, operating and improving the Service, developing new products and services , and for Rhombus’ other business purposes (provided that Rhombus will not disclose or transfer Service Data in a manner that specifically identifies you without your consent, except as otherwise set forth in this Section 3.1); (ii) collect, access, use, store, analyze, display, disclose, and transfer Service Data as may be required or permitted by law or legal process, or to protect Rhombus’ rights or property (including without limitation, enforcement of Rhombus’ agreements) or the rights, property, or safety of any person or entity; and (iii) display, disclose, and transfer Service Data (a) to third-party vendors who perform services for Rhombus and are bound by confidentiality obligations; and (b) to an acquirer, successor, or assignee of Rhombus, and its legal representatives, in connection with any merger, acquisition, debt financing, sale of company assets, or similar transaction, as well as in the event of an insolvency, bankruptcy, or receivership in which Service Data is transferred to a third party as one of Rhombus’ business assets.  Customer further acknowledges and agrees that Rhombus may, and you authorize Rhombus to, display, disclose, and transfer Service Data when it is aggregated with other information. Some Service Data may reside on the Service or Device, in which case such data may be periodically recycled or overwritten in accordance with the Service description set forth in the Rhombus Materials. Rhombus agrees and represents and warrants that the video data in the Service Data is encrypted while being transmitted from the Device to the Service and while being hosted by the Service.

3.2                        Data Limitations.  Customer shall be solely responsible for ensuring that Customer’s use of the Service complies with all applicable laws, rules, regulations, industry self-regulatory regimes and third-party contracts, terms and policies, including without limitation relating to the collection, storage, use, access, display, transfer, and disclosure of Service Data as contemplated by these Terms.  Rhombus shall be solely responsible for ensuring that its provision of the Service complies with all applicable laws, rules, regulations, industry self-regulatory regimes and third-party contracts, terms and policies, including without limitation relating to the collection, storage, use, access, display, transfer and disclosure of Service Data by Rhombus as contemplated by these Terms.

3.3                        International Use. Rhombus makes no representations that the Service is appropriate or available for use in locations outside of the United States. If Customer accesses or uses the Service from other jurisdictions, Customer understands and agrees that Customer do so at Customer’s own risk and is responsible for compliance with local law.  If Customer chooses to use the Service from outside the United States, then Customer understands and consents to the transfer, storage, processing, and use of Service Data outside of Customer’s region and into the United States. Customer understands and agrees that Rhombus may transfer Customer data from the United States to other countries or regions in connection with storage and processing of data, fulfilling Customer requests, and operating the Service.  Customer acknowledges and understands that each region outside of the United States may have its own privacy and data security laws, which may differ from the applicable laws and regulations of the United States.

3.4                        Non-Rhombus Connections . Rhombus has no responsibility for whether and how Customer configures the APIs to transfer Service Data to non-Rhombus servers or what happens to this data following such a transfer.

4.           ACCOUNTS

4.1                        Account Registration.  In order to use the Service, Customer will have to register for a Rhombus account.  Rhombus will collect as Service Data any personally identifiable information that Customer provides to Rhombus in the course of registering for an account.  Rhombus may indicate that some personally identifiable information is required for Customer to register for the account, while some is optional.  Customer may be given the option to access or register for the Service through a third party service, such as through Google Apps or the use of Customer Google credentials (each an “Integrated Service”),  By doing this, Customer authorizes Rhombus to access and store as Service Data the credentials Customer provides, Customer name, email address(es), date of birth, gender, current city, profile picture URL, and other information that the Integrated Service makes available to Rhombus, and to use and disclose it as Service Data in accordance with these Terms.  Customer should check the Google or other Integrated Service privacy settings to understand and change the information sent to Rhombus through Google or other Integrated Services.  Please review each Integrated Service’s terms of use and privacy policies carefully before using their services and connecting to the Service.  Customer agrees that the information Customer provides or authorizes third parties to provide to Rhombus upon registration and, at all other times, will be true, accurate, current, and complete. Customer also agrees that Customer will ensure that this information is kept accurate and up-to-date at all times.

4.2                        Authorized Accounts.  Customer may create Rhombus accounts with unique log-in credentials for designated users to access and use the Service on Customer’s behalf (“Authorized Accounts”).  The number of Authorized Accounts Customer can create may be limited as set forth in the Order.  Customer is solely responsible at all times for (a) ensuring that all of Customer accounts are used solely in accordance with these Terms, (b) maintaining the confidentiality of all log-in credentials for Customer accounts and restricting access to Customer computer, and (c) for the activities of any person accessing the Services using any of Customer accounts.

5.           PRIVACY. 

5.1                          Customer’s use of the Service is subject to the Rhombus Privacy Policy located at www.rhombussystems.com/privacy, which is hereby incorporated into and made a part of these Terms by reference, and subject to change as provided in the Privacy Policy.  The use of certain Features may require Customer to enter into another agreement with Rhombus, as determined by Rhombus, in its sole discretion.

6.           FEES; PAYMENT

6.1                        Payment Method.  Access to the Service, or to certain features of the Service, may require Customer to pay Fees. Before Customer is required to pay any Fees, Customer will have an opportunity to review the Fees that Customer will be charged. Customer authorizes Rhombus or its third party payment providers to charge Customer for all Fees by the payment method indicated on the Order (the “Payment Method”).  If Customer pays any Fees with a credit card, Rhombus may seek pre-authorization of Customer’s credit card account prior to Customer purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase. Customer acknowledges and agrees that any credit card and related billing and payment information that Customer provides to Rhombus may be shared by Rhombus with companies that work on Rhombus’ behalf, such as payment processors and/or credit agencies, for the purposes of checking credit, effecting payment to Rhombus, and servicing Customer’s account.  The terms of Customer payment will be based on Customer’s chosen Payment Method and may be determined by agreements between Customer and the financial institution providing such Payment Method. 

6.2                        Fees.  Customer agrees to pay Rhombus all Fees incurred under Customer accounts for all Services to which Customer or anyone else who uses Customer’s accounts subscribe pursuant to these Terms.  If Customer’s Payment Method fails or Customer accounts are past due, (a) Customer agrees to pay all amounts due on Customer’s account upon demand, (b) Rhombus may collect fees owed using other collection mechanisms, (c) Rhombus reserves the right to either suspend or terminate Customer’s Services, or Customer’s account with Rhombus, and/or (d) Customer agrees to pay a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. All Fees are due and payable in U.S. dollars.  Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to these Terms, other than taxes based on Rhombus’ income.  All Fees are non-refundable except as specifically stated in this Agreement.  Notwithstanding the foregoing, Customer will be given a refund of the Fees Customer has paid in advance for the unused portions of the Term if the Service is permanently discontinued by Rhombus or if these Terms or Customer Subscription is terminated by Rhombus for any reason other than Customer’s material breach.

6.3            Customer may purchase one of two Service plans.  Under the “Total Plan”,  (a) Customer will be eligible for a hardware upgrade every three (3) years for updated hardware that conforms to the same tier of Customers’ then-existing hardware, and (b) Rhombus will maintain and support (and if necessary replace) all hardware experiencing material errors during the subscription term, except for errors or deficiencies caused by loss, theft, abuse or misuse of such hardware.  Under the “Hardware and Software Subscription Plan”, Rhombus will warrant that the hardware shall be error-free for a period of two (2) years from the Effective Date (except for errors or deficiencies caused by loss, theft, abuse or misuse of such hardware).

7.           TERM; TERMINATION.

7.1                        Term.  The initial term of these Terms shall be as described in the Order (“Initial Term”) with a minimum term of one (1) year, and, unless otherwise provided in the Order, the term will automatically renew for successive periods of the same length as the Initial Term at the then-current listing prices unless either provides notice of its intent not to renew at least 30 days prior to the expiration of the then-current term (each such period, a “Renewal Term”) (the Initial Term together with all Renewal Terms, collectively, the “Term”).  Customer will not be notified in advance of impending Renewal Terms. 

7.2                        Suspension.  If Customer’s use of the Service negatively affects, or is reasonably expected to negatively affect, any part of the Service, including without limitation in the event of breach of Customer’s payment obligations, then Rhombus reserves the right to suspend the Service or change the level of the Service, including without limitation the Features, provided to Customer, with or without notice and without liability to Customer. 

7.3                        Termination for Cause.  Either party shall have the right to immediately terminate this Agreement should the other party breach any of its representations or warranties.  Either party may terminate these Terms effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within 30 days (or 10 days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.  Either party may terminate immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within 30 calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.

7.4                        Termination for Convenience.  Rhombus, at its sole discretion, has the right to terminate this Agreement and refuse any and all current or future use of the Service by Customer, for any reason at any time upon 30 days’ prior written notice to Customer and Customer will be given a refund of the Fees Customer has paid in advance for the unused portions of the Term.  Customer may also terminate this Agreement and Customer’s Subscription and discontinue Customer’s use of the Service at any time by providing Rhombus 30 days’ prior written notice of termination, and Customer will be given a refund of the Fees Customer has paid in advance for the unused portions of the Term.

7.5                        Effect of Termination.  Sections 1, 2,2, 2.3, 2.5, 2.6, 2.7, 2.8 3, 6, 7.5, and 9 -14  of this Agreement shall survive expiration or termination of this Agreement.  Upon termination or expiration of this Agreement for any reason, all licenses granted herein to Customer shall terminate and Customer shall immediately discontinue all use of the Service, and at Rhombus’ request, return or destroy all Rhombus Materials, and certify such return or destruction in writing.  Upon termination or expiration of this Agreement for any reason, all licenses granted herein to the Service shall terminate and Rhombus shall, at Customer’s request, either return or destroy all Results and Service Data, and certify such return or destruction in writing.

8.           SUPPORT AND SERVICE.  Rhombus may at its discretion provide customer support to Customer via email, phone or a website with respect to Customer’s use of the Service, including without limitation support on how to configure or implement System Policies. If Rhombus releases any mobile application for the Service, it is Customer’s responsibility to install such updates or upgrades and use the latest production-ready version of the application to receive the full Features of Customer’s subscription and Rhombus is not responsible for any consequence due to Customer’s failure to do so (including without limitation Customer’s inability to access any Features of the Service).

9.           REPRESENTATIONS AND WARRANTIES.

9.1                        Mutual.  Each party represents and warrants to the other party that: (a) it has the full power and authority to enter into these Terms; (b) the execution of these Terms and performance of its obligations under these Terms does not violate any other agreement to which it is a party; and (c) these Terms constitute a legal, valid and binding obligation when executed and delivered.

9.2                        Representations and Warranties of Customer.  Customer represent and warrant to Rhombus that: (a) Customer will not use the Service, including without limitation in connection with the configuration or implementation of System Policies,  in a manner that violates any law, rule, regulation or industry self-regulatory regime, including without limitation applicable laws, rules, regulations, and self-regulatory requirements relating to privacy or data protection; (b) Customer will comply with, obtain, and maintain any licenses and certifications from third-party suppliers or service providers required in connection with the Service and/or Device; (c) Customer will not establish, configure, implement, or use any Service in any way that is not expressly authorized by Rhombus; and (d) Customer will comply with all third-party terms and policies and all regulations that apply to the Service or Device.; (e) the collection, storage, use, access, analysis, display, transfer, and/or disclosure of Service Data does not and will not infringe upon, violate, or misappropriate any third-party right, including without limitation any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; and (f) Customer agrees not to defame, harass, abuse, threaten, stalk or defraud others, including without limitation other users of the Service.  Rhombus will not be liable to Customer or any third party for any harm related to, arising out of, or caused by the collection, storage, use, access, analysis, display, transfer, or disclosure by Rhombus in accordance with these Terms or System Policies of any data provided through the Service or Device, including without limitation Service Data.

10.      DISCLAIMERS

10.1                   NO WARRANTIES; “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICE, THE DEVICE, AND RHOMBUS SYSTEMS MATERIALS ARE PROVIDED “AS IS” AND YOU AGREE THAT YOUR USE OF THE SERVICE, THE DEVICES, AND RHOMBUS SYSTEMS MATERIALS (INCLUDING WITHOUT LIMITATION ANY RESULTS) IS AT YOUR SOLE RISK.  EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RHOMBUS SYSTEMS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. 

10.2                   SERVICES AND RHOMBUS SYSTEMS MATERIALS.  RHOMBUS SYSTEMS AND ITS AFFILIATES, SUPPLIERS, DISTRIBUTORS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE SERVICE, DEVICES, OR RHOMBUS SYSTEMS MATERIALS WILL BE CORRECT, UNINTERRUPTED, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE, DEVICE, OR RHOMBUS SYSTEMS MATERIALS, OR THE SERVERS THAT MAKE EACH OF THE FOREGOING AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  WITHOUT LIMITING THE FOREGOING, PLEASE NOTE THAT ANY LOCATION DATA COLLECTED OR USED PURSUANT TO THE SERVICE MAY NOT BE ACCURATE, WHETHER COLLECTED ORIGINALLY BY THE SERVICE, DEVICE, OR A THIRD PARTY APPLICATION ORIGINATING A PIECE OF MEDIA CONTENT, AND RHOMBUS SYSTEMS AND ITS AFFILIATES, SUPPLIERS, DISTRIBUTORS, LICENSORS, AND PARTNERS DISCLAIM ANY AND ALL WARRANTIES RELATED TO LOCATION DATA AND LOCATION BASED SERVICES. YOU UNDERSTAND AND AGREE THAT IF YOU USE, ACCESS, DOWNLOAD, INSTALL, OR OTHERWISE OBTAIN RHOMBUS SYSTEMS MATERIALS, OR THE DEVICE, IT IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING WITHOUT LIMITATION YOUR COMPUTER SYSTEM OR ANY DEVICES) OR LOSS OF OR STOLEN DATA THAT RESULTS FROM THE DOWNLOAD, INSTALLATION, OR USE OF RHOMBUS SYSTEMS MATERIALS OR THE DEVICE.  RHOMBUS SYSTEMS AND ITS AFFILIATES, SUPPLIERS, DISTRIBUTORS, LICENSORS, AND PARTNERS DO NOT WARRANT THE COMPATIBILITY OF ANY SOFTWARE WITH THE SERVICE OR DEVICE.  FUTURE VERSIONS OF THE SERVICE, DEVICE, AND RHOMBUS SYSTEMS MATERIALS MAY BE DEVELOPED AND RELEASED BY RHOMBUS SYSTEMS AT ITS SOLE DISCRETION, AND RHOMBUS SYSTEMS DOES NOT WARRANT THAT IT WILL DEVELOP OR RELEASE ANY UPDATES OR UPGRADES TO THE SERVICE, THE DEVICE, OR RHOMBUS SYSTEMS MATERIALS. 

11.      INDEMNIFICATIONEach party agrees to indemnify, defend, and hold the other party and their affiliates and their respective directors, officers, employees and contractors harmless from and against any liabilities, damages or expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent arising out of or relating to the alleged or actual breach of any of Customer’s covenants, representations or warranties in this Agreement, including without limitation any actual or alleged violation of any applicable laws, rules, regulations, industry standards, privacy policies, or third-party terms. In each case, indemnification will only apply if the person seeking indemnification:  (a) notifies the indemnifying party in writing of the claim; (b) grants the indemnifying party sole control of the defense and/or settlement of the claim; and (c) provides the indemnifying party, at its expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim, but in a manner consistent with Rhombus’ confidentiality obligations and preservation of attorney/client and work product privileges.

12.      LIMITATION OF LIABILITY.

12.1                   LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTION 11 (INDEMNIFICATION), CUSTOMER’SBREACH OF SECTIONS 2 (THE SERVICE;) OR 3 (DATA), OR EITHER PARTY’S BREACH OF SECTION 9 (REPRESENTATIONS AND WARRANTIES) OR SECTION 13 (CONFIDENTIALITY), NEITHER PARTY OR THEIR RESPECTIVE AFFILIATES, SUPPLIERS, DISTRIBUTORS, LICENSORS, AND PARTNERS SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

12.2                   LIMITATION OF DAMAGES. IN NO EVENT WILL RHOMBUS SYSTEMS’ OR ITS AFFILIATES’, SUPPLIERS’, DISTRIBUTORS’, LICENSORS’, OR PARTNERS’ LIABILITY AND DAMAGES UNDER THESE TERMS EXCEED THE GREATER OF $100 OR THE SUM OF THE TOTAL FEES PAID AND PAYABLE TO RHOMBUS SYSTEMS UNDER THESE TERMS DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM FIRST AROSE.  THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

12.3                   LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN. CERTAIN JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

13.      CONFIDENTIALITY.

13.1                   Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within 15 days of the disclosure.  In the case of Customer, Confidential Information includes the Results and the Service Data.  In the case of Rhombus, Confidential Information includes all information with respect to the Fees, including without limitation the amounts of the Fees and the payment terms.  Confidential Information does not include information that:  (i) is or becomes generally known to the public through no fault of or breach of these Terms by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.

13.2                   Use and Disclosure Restrictions.  Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under these Terms.  Except as otherwise permitted expressly by these Terms, each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees, and contractors that need to know such Confidential Information for the purposes of these Terms, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein.  Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance.  The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors.  In addition, each party may disclose the provisions of these Terms: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.

14.      MISCELLANEOUS.

14.1                   Publicity.  Each party agrees not to use any the logos, graphics, or trademarks of the other party without such other party’s express written consent.

14.2                   Export Laws.  Customer acknowledges and agrees that U.S. and foreign laws and regulations may restrict the export and re-export of certain commodities and technical data.  Customer shall not export or re-export the Rhombus Materials in any form without first obtaining all appropriate U.S. and foreign government licenses and permissions.

14.3                   Relationship of the Parties.  The parties are independent contractors with respect to each other.  These Terms do not constitute and shall not be construed as constituting a partnership or joint venture among the parties, or an employee-employer relationship.  No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.

14.4                   Government Use. The Service, Device, Rhombus Materials, and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to any other end users pursuant to the terms and conditions in these Terms. Unpublished-rights reserved under the copyright laws of the United States.

14.5                   Assignment. Customer may not assign these Terms or delegate or transfer any of Customer rights or obligations under this Agreement without Rhombus’ prior written consent, which shall not be unreasonably withheld.  Rhombus may assign these Terms and/or delegate or transfer its rights or obligations under these Terms without Customer’s consent.  This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.

14.6                   Force Majeure.  Except for payment obligations, neither party will be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.

14.7                   Headings and Wording.  Unless otherwise expressly stated in these Terms, the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to these Terms as a whole and not to any particular Section or other subdivision.  The words “include” and “including” shall not be construed or interpreted as terms of limitation.  The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month, and calendar year.  Section headings are for reference purposes only, and should not be used in the interpretation hereof.  No provision of these Terms will be construed against either party as the drafter thereof.

14.8                   Notices.  All notices under these Terms shall be given in writing and sent by registered mail, internationally recognized carrier, email, or facsimile transmission with machine confirmation or shall be delivered by hand to following addresses.

Rhombus:

101 Broadway, Suite 224

Oakland, CA 94607

 

sales@rhombussystems.com

                  Customer:

Via information provided in the Order.

All notices shall be presumed to have been received when they are hand delivered, or five business days of their mailing, or on the business day following the day of a successful email or facsimile transmission.

14.9                   Waiver.  A waiver of any provision of these Terms will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived.  The failure by either party to insist upon the strict performance of these Terms, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.

14.10              Construction.  These Terms shall be fairly interpreted and construed in accordance with its provisions and without strict interpretation or construction in favor of or against either party.  Each party has had the opportunity to consult with counsel in the negotiation of these Terms.  No trade usage or other regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express provisions of these Terms.

14.11              Severability; Counterparts.  If any provision, or portion thereof, of these Terms is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of these Terms, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct.  A waiver of any provision of these Terms will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. 

14.12              Governing Law; Jurisdiction.  These Terms shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles.  The parties agree that the federal and state courts in Santa Clara County, California will have exclusive jurisdiction and venue under these Terms, and the parties hereby agree to submit to such jurisdiction exclusively. 

14.13              Entire Agreement.  These Terms, including any Order completed herewith, constitute the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersede any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof.  Except as otherwise expressly provided in these Terms, any amendments to these Terms shall only be valid if in writing and signed by an authorized representative of each party, or pursuant to a click-to-accept mechanism.  Nothing contained in Customer purchase order, order acceptance form or similar document shall in any way modify these Terms or add any additional provisions to these Terms except as expressly contemplated by these Terms.  In the event of any irreconcilable conflict between the provisions of these Terms and the Rhombus Privacy Policy, the provisions of these Terms shall govern.  Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.