PATHIAN® INCORPORATED
TERMS OF SERVICE
Thank you for choosing Pathian® Incorporated as your HVAC controls solutions partner. This document (“Terms of Service”) describes the legal terms and conditions under which ( “Pathian®”, “we”, “us” or “our”) enables its customer (you individually, or the legal entity you represent with full authority to bind contractually, “Subscriber”, “you”, “your” or “yours”) to access and use our “cloud-based,” software-as-a-service (“SaaS”) and other engineering and buildings process applications (all referred to herein as our “Pathian® Applications”). Our Pathian® Applications presently run within the Honeywell/Tridium framework using the Tridium “Niagra 4” (or later version) appliance, and may be accessed by Subscriber or other authorized users acting on its behalf (“User”), only in accordance with these Terms of Service.
PLEASE READ THIS DOCUMENT CAREFULLY. THESE TERMS OF SERVICE CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN THE SUBSCRIBER AND PATHIAN®, AND CONTAIN IMPORTANT INFORMATION REGARDING THE DURATION OF THE SERVICES, OUR RIGHTS TO CHANGE THESE TERMS OF SERVICE, LIMITATIONS OF OUR LIABILITY, WARRANTY DISCLAIMERS, TERMS REGARDING THE SUBSCRIBER’S AND ITS USERS’ PRIVACY RIGHTS. THE CUSTOMER’S (INCLUDING ITS USERS’) USE OF OUR SERVICES WILL MEAN THAT THE CUSTOMER HAS ACCEPTED THE TERMS AND CONDITIONS DESCRIBED BELOW.
Scope.
These Terms of Service apply to all subscriptions for and use of any Pathian® Application.
Conditions of Use.
Subscriber Account. Upon subscription to a Pathian® Application, Subscriber may be invited to create a User account (“Subscriber Account”). Subscriber must protect the Subscriber Account with a complex, secure password, and keep its login information confidential. Subscriber is fully responsible for its and its Users’ access and use of the Subscriber Account, and any Subscriber Data accessible through it. Unless expressly permitted otherwise by Pathian® in writing, Subscriber may not create shared Subscriber Accounts so that multiple Users or other individuals would have access to one single Subscriber Account.
Permitted Use. Subscriber may only access and use Pathian® Application(s) (including any third-party or provided software) for its own internal purposes and not for distribution or resale. Subscriber may access and use a Pathian® Application(s) solely for the building controls system designated in the relevant purchase order. Subscriber may not access or use Pathian® Application(s) to create products that could be considered competitive with Pathian®. The Subscriber may not (and shall not encourage, assist or permit any other person to) modify, decompile, reverse engineer or otherwise tamper with any Pathian® Application, in whole or in part (including without limitation any software provided in relation to Cloud Services), or create any works derived from any Pathian® Application. Except as expressly allowed herein, Subscriber may not copy, sell, distribute, license or sub-license any Pathian® Application in whole or in part (including without limitation any provided software). We reserve the right to limit or suspend Subscriber’s (and/or any User’s) access or use of the Pathian® Application(s), in whole or in part, if we have reasonable grounds to believe that Subscriber (or any of its Users) violates these Terms of Services or accesses or uses our products or services in a manner that is unlawful, fraudulent, abusive, or that otherwise violates the applicable laws, including without limitation those pertaining to the privacy and property rights (including without limitation intellectual property rights) of others. Subscriber understands that by doing so, we will not be liable to Subscriber or any other person for any inconvenience, losses or damages whatsoever.
Subscriber Promises. By accessing and using any Pathian® Application(s), Subscriber warrants that: (i) it possesses all necessary permissions and authorizations to access and use our Services in a manner described in these Terms of Service; (ii) it has taken and will take such steps as may be necessary to ensure that its access and use of the Pathian® Application(s) complies with the applicable laws and regulations; and (iii) it does not and will not use the Pathian® Application(s) for any purpose that is illegal, unlawful, fraudulent or contrary to these Terms of Service, and it will fully cooperate with us to investigate any suspected or actual illegal, unlawful, fraudulent or improper activity related to the Pathian® Application(s). Subscriber further understands and agrees that Subscriber is fully liable for its Users’ access and use of the Pathian® Application(s) and compliance with these Terms of Service, as well as for all of their actions and omissions, as if they were actions or omissions of the Subscriber directly.
Service and Support. We work hard to maximize the availability of our Pathian® Applications. We will use reasonable efforts to provide sufficient hardware and software required for Subscriber to access the Pathian® Application(s) software and provide reasonable on-going telephone, email, or web based technical support resources during ordinary business hours. Additional or dedicated customer support resources may be provided subject to such additional terms and conditions that are agreed upon in writing at that time.
Third-Party Services. We may enable Subscriber to access and use third-party software and/or services through integration of such third-party offerings with our Pathian® Applications (“Third-Party Services”). Subscriber acknowledges that any such integrations and accesses to such Third-Party Services are for convenience only and Pathian® does not endorse nor make any representation or warranty whatsoever with respect to any such Third-Party Services. Such Third-Party Services are not part of the Pathian® Applications. Third-Party Services are provided to Subscriber in accordance with their respective terms and conditions, and Subscriber alone is responsible for ensuring that it procures appropriate rights to access and use any such Third-Party Services in association with the Pathian® Application(s). For clarity, third-party login authentication services that may be used by the Subscriber or its Users to log in to the Subscriber Account are considered Third-Party Services.
Scope Changes. As technology continues to evolve, we may adapt the scope of our Pathian® Application(s) to provide customers with our newest features and security protections. Though we will make reasonable efforts to not cause disruption in services, this may require discontinuing services, from time to time, without advance notice, while we may make these changes. We promise not to materially decrease any key features of the Pathian® Applications without advance notice to Subscribers.
Licenses, Intellectual Property Rights and Third-Party Tools.
Grant of Licenses. To the extent Pathian® provides Subscriber with any software as part of a Pathian® Application, we hereby grant Subscriber a limited, non-exclusive, non-transferrable, non-assignable royalty-free license to download, install, access and use such software, only in the form made available by Pathian®, up to the maximum number of instances or installations specified in the purchase order, for the building system(s) specified in the purchase order, for the subscription term specified in the purchase order, and for use only in accordance with the applicable documentation related to the Pathian® Application(s).
Subscriber Property Rights. Subscriber is and will remain the sole owner of all rights (including without limitation all intellectual property rights), titles and interest in and to all information, materials and other systems data uploaded by Subscriber or any of its Users to the cloud service, or generated for Subscriber by a Pathian® Application during the term of these Terms of Service (“Subscriber Data”). Subscriber Data also includes, but is not limited to, any personal data pertaining to the Subscriber or its Users and other materials and content uploaded to and stored by Subscriber or Users in a Subscriber Account.
Pathian® Property Rights. Our Pathian® Applications and cloud-based SaaS services and all related software are protected by law, including all associated intellectual property rights (such as patents, copyrights, service marks, trademarks, trade secrets, moral rights and other intellectual property rights) in Canada, the United States, and other countries. Pathian®, together with its licensors and partners (as applicable), is and will remain the sole owner of all rights, titles and interest in and to all trademarks, service marks, software, hardware and any other technology and/or property provided or otherwise made available by or on behalf of Pathian® in relation to our Pathian® Application(s), including all modifications and derivative works, as well as the associated goodwill, regardless of any use of the words ‘purchase’, ‘sale’ or the like in these Terms of Service, our websites or any documentation. Subscriber also grants to Pathian® a non-exclusive, royalty-free, license to access, use, reproduce, modify, display and distribute data generated or collected from Subscriber’s use of any of the Pathian® Application(s), other than Subscriber Data, or any software provided by us, as is reasonably or necessary for us to perform or provide the contracted for services. For clarity, such usage does not include any personal data of the Subscriber or its Users, all of which is Subscriber Data. The Subscriber acknowledges that we may collect and use such usage data to provide support services to the Subscriber, as well as to access and improve the performance and the quality of our Application(s).
Trademarks. The trademarks used in these Terms of Services and their respective logos are trademarks or registered trademarks of Pathian® Incorporated.
Subscriptions and Payment.
Subscription Fee. Subscriber shall pay in advance to Pathian® the subscription fee (“Subscription Fee”) in the amount and for the duration that Subscriber has selected and agreed to pursuant to the sign-up and subscription page(s) of the Pathian® web site. The Subscription Fee for the first Subscription Period shall be paid by the designated date and the Subscription Fee for all subsequent Subscription Periods shall be paid on or before the first day of each subsequent Subscription Period. The amount of the Subscription Fee does not include any applicable taxes. Subscriber is responsible for any and all applicable taxes.
Payment. Subscriber shall provide a valid credit card, ACH payment system information, bank account information authorized for automated payment, or other method of payment acceptable to Pathian® and shall take all necessary steps to authorize automatic payment of the Subscription Fee. By its acceptance of these Terms of Service Subscriber hereby authorizes Pathian® to automatically charge said method of payment for all Subscription Periods. If, for any reason, automatic payment shall be denied, then Subscriber shall pay the applicable Subscription Fee, together with a $50.00 late fee within five (5) days of notice from Pathian®. Any different or additional payment terms between Pathian® and Subscriber shall be agreed to in advance by a separate writing between the parties.
Term and Termination.
Term. Subscriber will be bound by these Terms of Service immediately upon an accepted its subscription to any Pathian® Application and will remain in full force and effect until the expiration of the term of all subscriptions for Pathian® Applications held by the Subscriber.
Termination. These Terms of Service will be terminated upon the occurrence of any of the following: (i) Subscriber terminates these Terms of Service by providing Pathian® with a written notice of termination; (ii) Pathian® terminates these Terms of Service by providing Subscriber with a written notice of termination if: (a) Subscriber (or any User) is in breach of any of these Terms of Service (including any payment obligation) or any license for third-party software, (b) Pathian® receives an order from a court or a regulatory authority to cease the provision of services to Subscriber, or (c) Pathian® discontinues the relevant Pathian® Application(s) (provided in such case we will not terminate your access to such services until the later of the expiration of your then-current subscription term or (6) months following issuance of our notice advising you of such discontinuation); or (iii) as otherwise provided in these Terms of Service.
Effect of Termination. Upon termination of these Terms of Service: (i) Pathian® will immediately stop providing all Pathian® Application(s) to Subscriber and its Users, (ii) all software licenses provided by Pathian® to Subscriber as part of the Pathian® Application(s), if any, will immediately terminate, and the Subscriber must uninstall such software from all of its devices, and destroy all copies thereof; and (iii) as applicable, Subscriber must without delay return any Pathian® documentation concerning Subscriber’s use of the Pathian® Application(s) made available to Subscriber or its Users.
Survival. Notwithstanding anything to the contrary in these Terms of Service or any applicable addendum hereto, the sections concerning Licenses and Intellectual Property, Confidential Information, Warranties, Limitations of Liability, and Indemnification, shall survive the termination of these Terms of Service.
Confidentiality, Privacy and Data Security.
Confidential Information. As part of the Pathian® Application(s), both Subscriber and Pathian® may obtain certain non-public information relating to other party’s business and facilities, such as, but not limited to, codes, technology, know-how, algorithms, testing procedures, structures, interfaces, specifications documentation, engineering documentation, analysis and performance information, and other technical, building systems operational data (“Confidential Information”). Each party agrees to hold such Confidential Information in confidence, and not disclose it to anyone or use it for any purpose other than the use (in the case of the Subscriber) or the provision (in the case of Pathian®) of the Pathian® Application(s) under these Terms of Service.
Ownership of Confidential Information. Nothing in these Terms of Service will be construed to convey any title or ownership rights to any Confidential Information of Pathian® that is not generally publicly known, or to any patent, copyright, trademark, or trade secret embodied therein, to Subscriber or to grant any other right, title, or ownership interest embodied in any Pathian® Application. Neither party shall sell, lease, license, assign, transfer, or disclose any Confidential Information to any third party and shall not copy, reproduce or distribute Confidential Information except as may be expressly permitted.
Suggestions/Improvements. Unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Subscriber regarding the Pathian® Applications will be owned by Pathian® and Subscriber agrees to assign any such rights to Pathian®. Nothing in these Terms of Service will preclude Pathian® from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Pathian® in the delivery of the Pathian® Applications hereunder.
Privacy. We respect our customers’ privacy. In order to be able to provide the Pathian® Application(s), we may need to access, collect and store certain proprietary, confidential or personal information. The objectives and the scope of our collection, use and disclosure of personal data of the Subscriber and its Users in connection with their use of the Cloud Services is outlined in our privacy policy, available a www.Pathian.com. Subscriber’s acceptance of these Terms of Service will also signify the Subscriber’s acceptance of the terms of the privacy policy.
Data Security. We have put in place and will maintain throughout your subscription to the Pathian® Application(s) administrative, physical, and technical measures for the protection of the security, confidentiality and integrity of the Subscriber Data. Those measures include, safeguards for preventing access, use, modification or disclosure of the Subscriber Data by our personnel except if necessary to provide you with the Pathian® Application(s) and any related services (such as support), to prevent or resolve service or technical problems, if required by law, or if otherwise agreed to in writing by the Subscriber.
Warranties, Indemnities and Limitation of Liability.
Our Warranties. We warrant that during the term of your subscription to a Pathian® Application, our services will perform materially in accordance with the applicable documentation throughout the duration of Subscriber’s subscription term, provided the Pathian® Application(s) is used in accordance with such documentation. For clarity, the foregoing warranty does not extend to ensuring continuous availability of any Third-Party Services, as they may not be under our control. If we are in breach of any warranty above, Subscriber’s only remedy will be to terminate these Terms of Service in writing and accordance with these Terms of Service.
Pathian® Disclaimer of Warranties. Except for the warranties set forth specifically herein, to the maximum extent permitted by law, Pathian® makes no representations and gives no warranties with regards to Subscriber’s use of any Pathian® Application, including without limitation with regards to their performance, availability, coverage, uninterrupted availability, security, pricing or operation, or that of any software, hardware, services, connections, networks or Third-Party Services used or provided in association with our Pathian® Application(s). All services are provided “as is” and “as available”, without any representations or warranties whatsoever, including, without limitation, warranties of title, security, non-infringement, merchantability, quality, availability or fitness for a particular purpose.
Subscriber’s Disclaimer of Reliance. Except for the warranties set forth specifically herein, Subscriber represents and warrants that it is not relying upon Pathian® for the final engineering, design, installation, or proper operation of any building HAVC controls system, and Subscriber acknowledges and agrees that all designs, installations, and operation of such systems shall remain the ultimate responsibility of Subscriber and/or other third-party suppliers and providers of Subscriber.
Indemnification by Pathian®. Pathian® agrees to defend Subscriber against or settle any demands, claims, causes of action, suits and proceedings (“Claims”) against Subscriber brought by a third party alleging that the Pathian® Application(s) infringe or misappropriate such third party’s intellectual property rights, and Pathian® agrees to indemnify and hold harmless Subscriber from any damages, attorney fees and legal costs finally awarded against Subscriber, or the amounts payable by Subscriber under a settlement approved by Pathian® in writing, as a result of such Claim against Subscriber, provided Subscriber promptly gives Pathian® a written notice of such Claim, gives Pathian® sole control of the defense or settlement of the Claim (provided Subscriber shall first approve to any settlement in writing, which approval must not be unreasonably withheld), and provides Pathian® with all reasonable assistance at Pathian®’s expense. In the event of any such infringement or misappropriation Claim brought or threatened against Subscriber, Pathian® may, at its option: (i) obtain for Subscriber the right to continue to use the service(s); (ii) replace or modify the service(s) so it becomes non-infringing; or (iii) if we determine that the resolutions described in items (i) and (ii) are not reasonably practicable, then we may end your access to the relevant service(s), and refund issue a refund for any prepaid but not used fees. This section sets out our entire liability and your sole remedy with respect to any Claims concerning infringement or misappropriation of third-party intellectual property rights.
Subscriber’s Compliance with Laws. Subscriber warrants that its access and use of our Pathian® Application(s) (including, where applicable, access and use of any software and/or hardware provided hereunder) will be in compliance with all applicable laws, rules and regulations, including privacy, intellectual property, exports and imports laws in the United States and in other countries. Subscriber may access and use Pathian® Application(s) (and access and use any software and/or hardware provided in association with them), only for the building system(s) specified in the relevant purchase order.
Indemnification by Subscriber. Subscriber agrees to defend Pathian® against or settle any Claims against Pathian® by a third party alleging that Subscriber has infringed or misappropriated such third party’s privacy or property rights (including without limitation intellectual property rights), or otherwise violates any applicable laws or regulations, and Subscriber agrees to indemnify and hold harmless Pathian® from any damages, attorney fees and legal costs awarded against Pathian®, or the amounts payable by Pathian® under a settlement approved by Subscriber in writing, as a result of such Claim against Pathian®, provided that Pathian® promptly gives Subscriber a written notice of such Claim, gives Subscriber sole control of the defense or settlement of the Claim (provided that Pathian® shall first approve any settlement in writing, which approval must not be unreasonably withheld), and provides Subscriber with all reasonable assistance at the Subscriber’s expense.
Limitation of Liability. Except for the parties’ respective confidentiality and indemnity obligations under these Terms of Services, to the maximum extent permitted by applicable law, IN NO EVENT WILL PATHIAN® BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY SUBSCRIBER TO PATHIAN® DURING THE TWELVE MONTHS PRECEEDING THE ACTS GIVING RISE TO THE ALLEGED LIABILITY.
Limitation of Damages. To the maximum extent permitted by applicable law, IN NO EVENT WILL PATHIAN® BE LABILE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.
General.
Contact Information. If you wish to contact us for matters related to these Terms of Service, please write us at: Pathian® Incorporated, 11260 Chester Road, Suite 545, Cincinnati, OH 45246, or at info@pathian.com. If we need to contact Subscriber for matters related to these Terms of Service, we will use the contact information that you will have provided to us as part of your subscription. Please ensure to promptly advise us of any changes to your contact information. All notices will be deemed delivered on the date shown on the postal receipt, or on the courier, facsimile or electronic mail confirmation of delivery.
Force Majeure. Subscriber hereby acknowledges that circumstances outside of our reasonable control (such as, without limitation, internet or power outages, fires, floods, vandalism, sabotage, epidemics or pandemics, large scale outbreaks of computer virus, malware or other malicious code, strikes, riots, wars or other military action, civil disorder, acts of terrorism, acts of third parties, or the like) may cause delays in our ability to deliver Pathian® Application(s). As such, Subscriber hereby acknowledges and agrees that Pathian® shall have no liability whatsoever to Subscriber (or any User) or any third party for any direct or indirect damages whatsoever, resulting from such delays or any incapacity to perform Pathian® Application(s) in a timely manner.
Waiver. A failure by Pathian® to fully enforce any of its rights under these Terms of Service shall not affect the right to require such performance at any time thereafter; nor shall any failure or delay to enforce any right or privilege by Pathian® under these Terms of Service be interpreted as a waiver of such right or privilege by Pathian®.
Severability. If any provision of these Terms of Service is held by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law. Nonetheless, such provision shall continue to apply in full force and effect in all other jurisdictions, as the case may be. Moreover, the remaining provisions of these Terms of Service shall remain in full force and effect.
Modifications to these Terms of Service. We reserve the right to make changes to these Terms of Service (including any ancillary document, such as any addendum or supplement hereto) at any time by (a) posting a revised version of such terms on our website, or by (b) sending information regarding any such amendment to the email address provided to us by Subscriber in connection with the Cloud Services (as the case may be). The revised Terms of Service or any such ancillary document will become effective and apply to Subscriber within thirty (30) days from Subscriber’s receipt of the updated document or from the date of its publication on the website, whichever occurs first.
Transfer of these Terms of Service. Neither party may assign or otherwise transfer these Terms of Service or any of its rights or obligations hereunder to any person or entity, in whole or in part, without the other party’s prior written consent. Any attempted assignment or transfer by Subscriber in violation of this requirement will automatically terminate these Terms of Services and any of the rights or privileges granted to Subscriber hereunder.
Applicable Law and Dispute Resolution Process. The parties hereby agree that the laws of the State of Ohio (USA), with the exception of any conflict of laws principles, will apply to interpret these Terms of Service, as well as to resolve any disputes related to them or any Pathian® Application(s) provided hereunder. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service. Each party hereby irrevocably and unconditionally waives the right to a trial by jury in any Claim. All such disputes must be brought exclusively before a court of having proper jurisdiction located in Hamilton County, OH (USA). However, the foregoing does not prohibit either party from seeking injunctive or other equitable relief in any other jurisdiction in case of any violation, breach or infringement of its rights related to intellectual property or confidentiality in such jurisdiction.
U.S. Government Users. If Subscriber is an entity of the U.S. Government, or if these Terms of Service otherwise become subject to the Federal Acquisition Regulations (FAR), the Defense Federal Acquisition Regulations (DFARS) or similar regulatory regimes, the Subscriber acknowledges that our Pathian® Application(s) and any software and documentation provided in association with them are “commercial items” in accordance with the applicable regulations.
Entire Agreement. These Terms of Service, together with all applicable addenda and supplements hereto, if any, and any relevant purchase order(s), constitute the entire agreement between Subscriber and Pathian® with regards to the subject matter hereof and supersede any other prior and contemporaneous communications and agreements between them.
Purchase Orders. In the event of a conflict between the language of these Terms and Conditions and the language of any relevant and accepted written purchase order for Pathian® Application(s), the language and terms of the purchase order shall be deemed the more specific and thus controlling.
These Terms of Service have been last updated on December 31, 2020. The latest version of these Terms of Service may be found at www.pathian.com.