Your use of Dataprobe's products, software, services and web sites, including iBoot Cloud services, (referred to collectively as the "Services" in this document and excluding any services provided to you by Dataprobe under a separate written agreement) is subject to the terms of a legal agreement between you and Dataprobe. "Dataprobe" refers to Dataprobe Inc., a corporation with its principal place of business at 1 Pearl Court, Suite B, Allendale New Jersey 07401, USA. This document explains how the agreement is made up, and sets out the terms of the agreement.
If you are a paid subscriber to Dataprobe's iBoot Cloud Service, your agreement with Dataprobe will also include the terms of Section B, Paid Services. The Terms and Conditions together with the Section B Paid Services form a legally binding agreement between you and Dataprobe in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement will be referred to below as the "Terms".
In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
You can accept the Terms by:
(A) clicking to accept or agree to the Terms, where this option is made available to you by Dataprobe in the user interface for any Service; or
(B) by actually using the Services. In this case, you understand and agree that Dataprobe will consider your use of the Services as acceptance of the Terms from that point on.
You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Dataprobe, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.
Before you continue, it is recommended that you print off or save a local copy of the Terms of Service for your records.
You acknowledge and agree that Dataprobe may change the form and nature of the Service from time to time without prior notice to you. Dataprobe may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Dataprobe's sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Dataprobe when you stop using the Services.
You acknowledge and agree that if Dataprobe disables access to your account, you may be prevented from accessing the Services and your account details or any files or other content which is contained in your account.
You acknowledge and agree that while Dataprobe may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by Dataprobe at any time, at Dataprobe's discretion.
You agree to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Dataprobe, unless you have been specifically allowed to do so in a separate agreement with Dataprobe. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services.
You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
Unless you have been specifically permitted to do so in a separate agreement with Dataprobe, you agree that you will not reproduce, duplicate, or copy the Services for any purpose.
You agree that you are solely responsible for (and that Dataprobe has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which Dataprobe may suffer) of any such breach.
You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.
Accordingly, you agree that you will be solely responsible to Dataprobe for all activities that occur under your account.
If you become aware of any unauthorized use of your password or of your account, you agree to notify Dataprobe immediately at firstname.lastname@example.org.
You agree to the use of your data in accordance with Dataprobe's privacy policies.
You acknowledge and agree that Dataprobe (or Dataprobe's licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Dataprobe and that you shall not disclose such information without Dataprobe's prior written consent.
Unless you have been expressly authorized to do so in writing by Dataprobe, you agree that in using the Services, you will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
Dataprobe gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by Dataprobe as part of the Services as provided to you by Dataprobe (referred to as the "Software" below). This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Dataprobe, in the manner permitted by the Terms.
You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Dataprobe, in writing.
You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Dataprobe a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Dataprobe to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
You agree that this license includes a right for Dataprobe to make such Content available to other companies, organizations or individuals with whom Dataprobe has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.
You understand that Dataprobe, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Dataprobe to take these actions.
A Dataprobe device connected to the Service will transmit information regarding the condition of the device, which includes but is not limited to: meter readings, statistical information and usage. You understand that this information is property of Dataprobe.
You confirm and warrant to Dataprobe that you have all the rights, power and authority necessary to grant the above license.
Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for free or for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as "certified" or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
The Terms will continue to apply until terminated by either you or Dataprobe as set out below.
If you want to terminate your legal agreement with Dataprobe, you may do so by (a) notifying Dataprobe at any time and (b) closing your accounts for all of the Services which you use, where Dataprobe has made this option available to you. Your notice should be sent, in writing, to Dataprobe's address which is set out at the beginning of these Terms.
Dataprobe may at any time, terminate its legal agreement with you if:
(A) you have breached any provision of the Terms (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
(B) Dataprobe is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or
(C) the partner with whom Dataprobe offered the Services to you has terminated its relationship with Dataprobe or ceased to offer the Services to you; or
(D) Dataprobe is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
(E) the provision of the Services to you by Dataprobe is, in Dataprobe's opinion, no longer commercially viable.
Nothing in this Section shall affect Dataprobe's rights regarding provision of Services under Section 3 of the Terms.
When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Dataprobe have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation.
NOTHING IN THESE TERMS, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT DATAPROBE'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE."
IN PARTICULAR, DATAPROBE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DATAPROBE OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
DATAPROBE FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
SUBJECT TO OVERALL PROVISION IN SECTION 12, ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT DATAPROBE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR:
(A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY.. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS;
ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
(I) ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
(II) ANY CHANGES WHICH DATAPROBE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
(III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
(III) YOUR FAILURE TO PROVIDE DATAPROBE WITH ACCURATE ACCOUNT INFORMATION;
(IV) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
THE LIMITATIONS ON DATAPROBE'S LIABILITY TO YOU ABOVE SHALL APPLY WHETHER OR NOT DATAPROBE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
The Services may include hyperlinks to other web sites or content or resources. Dataprobe may have no control over any web sites or resources which are provided by companies or persons other than Dataprobe.
You acknowledge and agree that Dataprobe is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
You acknowledge and agree that Dataprobe is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
Dataprobe may make changes to the Terms of Service of Service from time to time. When these changes are made, Dataprobe will make a new copy of the Terms of Service available here and any new Additional Terms will be made available to you from within, or through, the affected Services.
You understand and agree that if you use the Services after the date on which the Terms of Service or Additional Terms have changed, Dataprobe will treat your use as acceptance of the updated Terms of Service or Additional Terms.
The Terms constitute the whole legal agreement between you and Dataprobe and govern your use of the Services (but excluding any services which Dataprobe may provide to you under a separate written agreement), and completely replace any prior agreements between you and Dataprobe in relation to the Services.
You agree that Dataprobe may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
You agree that if Dataprobe does not exercise or enforce any legal right or remedy which is contained in the Terms (or which Dataprobe has the benefit of under any applicable law), this will not be taken to be a formal waiver of Dataprobe's rights and that those rights or remedies will still be available to Dataprobe.
If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
The Terms, and your relationship with Dataprobe under the Terms, shall be governed by the laws of the State of New Jersey without regard to its conflict of laws provisions. You and Dataprobe agree to submit to the exclusive jurisdiction of the courts located within the county of Bergen, New Jersey to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that Dataprobe shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
Provision of IBoot Cloud Service. We shall make the IBoot Cloud Service available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
User or Device Subscriptions. Unless otherwise specified in the applicable Order Form, Services are purchased as User or Device subscriptions and may be accessed by no more than the specified number of Users or Devices.
Unless otherwise specified in the applicable Order Form, User or Device subscriptions are required to be purchased and maintained for a Device to operate with the Service. We have no obligation to provide Services for Devices without a current User or Device subscription associated with such Services or Devices, or to refund any payments made to Us if You chose to discontinue a subscription outside the applicable Return or Exchange period.
Our Responsibilities. We shall: (i) provide to You basic support for the IBoot Cloud Service at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the IBoot Cloud Service available 24 hours a day, 7 days a week, with a service availability of 99.9% measured over a period of one calendar year, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the IBoot Cloud Service and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the IBoot Cloud Service only in accordance with applicable laws and government regulations.
Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User or Device Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use the Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (e) attempt to gain unauthorized access to the Services or their related systems or networks.
Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
Term of Purchased Subscriptions. User and Device subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User and Device subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
User or Device Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User or Device subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User or Device subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
3.1 Invoicing and Payment.
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section B.4.2 (Term of Purchased User or Device Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
3.2 Overdue Charges
If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 20.1 (Invoicing and Payment).
3.3 Suspension of Service and Acceleration
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
3.4 Payment Disputes.
We shall not exercise Our rights under Section 3.2 (Overdue Charges) or 3.3 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on our income, property and employees.