These Terms and Conditions (“Terms”) describe the rights and obligations of Building Robotics, Inc., a Delaware corporation (“BR”) and BR’s customer (the “Customer”) (collectively, the “Parties”) related to BR’s service (the “Service”) associated with the Comfy application, service, and associated software and hardware (“Comfy”). Details related to the duration of these Terms, payment amounts, service area, and others are in a separate “Order Form” executed by the Parties. The Order Form is subject to these Terms. These Terms shall be effective upon the date of the last signature in the Order Form (the “Effective Date”).
I. Permitted Uses.
(a) Monthly Subscription. If Customer chooses the “Monthly Subscription Fee” option in the Order Form, then Customer shall pay the “Initial Amount Due” indicated in the Order Form within 30 days of the Launch Date as consideration for the initial period of Service indicated in the Order Form. Thereafter, Customer shall pay the “Monthly Subscription Fee” in advance on or before the date of renewal for the subsequent month.
(b) Term Subscription. If Customer chooses the “Term Subscription Fee” option in the Order Form, then Customer shall pay the “Term Subscription Fee” indicated in the Order Form within 30 days of the Launch Date as consideration for the “Service Period” indicated in the Order Form. Thereafter, Customer shall pay an additional amount equal to the Term Subscription Fee for each subsequent Service Period in advance of the renewal date for the subsequent Service Period, unless these Terms are terminated prior to renewal for a subsequent Service Period, as described in Section III.
(c) Taxes. Any taxes, duties, excises and other charges, including without limitation VAT, levied in connection with the provision of Comfy to Customer shall be borne by Customer, except for any taxes and duties levied on BR’s income from the provision of Comfy.
III. Term, Termination, & Survival.
(a) Term. If Customer chooses the “Monthly Subscription Fee” option in the Order Form, then these Terms shall be effective beginning on the Effective Date and shall automatically renew each subsequent month following the Launch Date, unless terminated by either Party as provided below. If Customer chooses the “Term Subscription Fee” option in the Order Form, then these Terms shall be effective beginning on the Effective Date and shall automatically renew for subsequent Service Periods at the end of each Service Period, unless terminated by either Party as provided below prior to the next Service Period. Upon expiration or termination of these Terms for any reason, all licenses and rights to use Comfy granted to Customer and Customer Personnel under Section IV shall terminate immediately.
(b) Termination for Convenience. Either Party may terminate these Terms for any reason by 30 days’ written notice to the other Party. In the event of termination by Customer for any reason other than a material breach, all payments made, or currently due, to BR shall be non-refundable. In the event of termination by BR for any reason other than material breach, payments made to BR will be refunded to Customer on a pro rata basis for the period for which Customer paid but will not receive access to Comfy.
(c) Termination for Material Breach. In the event of a material breach of these Terms, the non-breaching Party may terminate these Terms immediately by notice in writing to the breaching Party. In the event of termination by Customer for BR’s material breach, payments made to BR will be refunded to Customer on a pro rata basis for the period for which Customer paid but will not receive access to Comfy. In the event of termination by BR for Customer’s material breach, all payments made, or currently due, to BR shall be non-refundable. Customer shall be considered to be in material breach of these Terms in the event that the owner of the building terminates Service, or causes the Service to terminate, while this Agreement is in effect.
(d) Survival. The provisions contained in these Terms that by their sense and context are intended to survive the termination of these Terms shall survive the termination. Such provisions shall include: Sections III (Term, Termination, & Survival), IV (Intellectual Property), V (Customer Information), VI (User Data), VIII (Indemnification), IX (Confidentiality), XI (Limitation of Liability), and XIII (Miscellaneous).
IV. Intellectual Property.
No provision in these Terms shall be construed as an assignment or transfer of ownership of any copyrights, patents, trade secrets, trademarks, or any other intellectual property rights from BR to Customer or Customer Personnel. BR only grants Customer a limited license to use its intellectual property to the extent strictly necessary to use Comfy for the permitted purposes described in Section I. This license is limited to the Service Area, and is non-exclusive, non-modifiable, and non-transferable. Comfy uses certain third party software provided under separate license terms, as set forth in more detail on BR’s website. Customer may have broader rights under the applicable terms applicable to such third party software and nothing in these Terms are intended to impose further restrictions on Customer’s use of such software.
V. Customer Information.
Customer shall supply BR with support and system access needed to integrate Comfy with the building management system. Customer shall also supply necessary information (the “Customer Information”), which may include floor maps and HVAC zone diagrams for the Service Area, and historical data on energy consumption. Customer Information is owned by Customer. Customer grants BR, and each of BR’s respective subsidiaries, affiliates, and successors an unlimited license to use the Customer Information for any purpose so long as BR’s use is in compliance with the confidentiality obligations related to the Customer Information described in Section IX. This license may be transferred and sub-licensed, and cannot be revoked by Customer. BR will provide Customer with more details on its practices related to Customer Information upon request by Customer.
VI. User Data.
VII. Onboarding & Support.
BR will use commercially reasonable efforts to configure Comfy for Customer. This will include installation of a gateway device that interfaces with the building management system. After installation and onboarding, BR shall provide basic support for Comfy to Customer at no additional charge. Support does not include substantial changes required for ongoing functionality of Comfy, including but not limited to, changes to: HVAC zone design or building floor plans, the building management system, or security and connectivity preferences. BR warrants it will exercise due care and diligence under these Terms and that all Services shall be of the standard and quality which prevail among contractors with knowledge, experience, and skill engaged to perform similar Services for comparable projects.
(a) IP Infringement Claims. If any action is instituted by a third party against Customer based upon a claim that Comfy infringes a United States patent, copyright or trademark, BR shall defend such action at its own expense on behalf of Customer, pay all expenses incurred by Customer (including reasonable attorney’s fees) and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. BR may, at its option and expense, (a) procure for Customer the right to continue using the allegedly infringing items, (b) replace or modify the such items, or (c) terminate these Terms, in which case BR shall refund a prorated amount of the fees paid by Customer. BR shall have no liability to Customer for any infringement action to the extent such action arises out of a breach of these Terms by Customer or any Customer Personnel’s use of Comfy in a manner that would constitute a breach of these Terms if such Customer Personnel were party to these Terms. BR shall have no obligation pursuant to this Section VIII(a) unless Customer gives prompt written notice of the applicable claim to BR promptly after Customer is notified or has knowledge of such claim and permits BR to solely control and direct the investigation, preparation, defense and settlement of the claim. This Section VIII(a) states BR’s sole liability to, and Customer’s exclusive remedy against, BR for infringement claims described in this Section VIII(a).
(b) By Customer. Customer will indemnify, defend, and hold harmless BR and its respective affiliates, officers, directors and employees from and against all third party claims, demands, suits, causes of action, awards, judgments and liabilities, including reasonable attorneys’ fees and costs, (collectively “Claims”) arising out of or relating to any breach by Customer or any acts or omissions of any Customer Personnel which would constitute a breach if such Customer Personnel were a party to these Terms.
Each Party may disclose information to the other Party, or otherwise learn such information, that is designated as confidential or that reasonably should be understood to be confidential (“Confidential Information”). Each Party agrees to only use the other Party’s Confidential Information for its intended purpose and agrees to maintain the confidentiality of Confidential Information during the term of these Terms and for a period of two years following termination of these Terms, except that the non-disclosure and use restriction obligations shall survive with respect to Confidential Information for as long as such Confidential Information retains its status as a trade secret under applicable law. Each Party shall provide prompt notification to the other Party of any unauthorized access to or disclosure of the other Party’s Confidential Information. The term “Confidential Information” shall include Customer Information and shall not include any information that is or becomes publicly and widely known through no wrongful act of the Parties, nor information that was independently developed by a Party without use of the other Party’s Confidential Information. Customer’s Confidential Information may be disclosed and otherwise transferred by BR to an acquirer, or successor or assignee as part of 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 such data is transferred to one or more third parties as a BR business asset.
X. Publicity Rights.
Each Party may use the other Party’s name and logo on the Party’s website and in pitch decks. All other uses of a Party’s name, logo, or likeness by the other Party, except in the context of using Comfy as described in these Terms, shall be by mutual agreement.
XI. Limitation of Liability.
IN NO EVENT WILL BR’S MAXIMUM AGGREGATE LIABILITY UNDER THESE TERMS EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE LEGAL THEORY OR FORM OF ACTION. THIS LIMITATION OF LIABILITY WILL NOT APPLY TO BR’S INDEMNITY OBLIGATIONS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, BR MAKES NO WARRANTIES WITH RESPECT TO THE SERVICES OR COMFY, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND/OR MERCHANTABILITY.
BR will maintain commercial general liability insurance covering bodily injury, death, property damage, and personal injury, with coverage limits of not less than $1,000,000 per occurrence.
(a) Dispute Resolution. These Terms shall be governed by California law, without reference to conflicts of laws principles. The Parties agree to resolve any dispute, claim or controversy relating to these Terms through binding arbitration in Oakland, California administered by the American Arbitration Association under its Commercial Arbitration Rules. Either Party may bring a lawsuit solely for injunctive relief to stop infringement and/or breach of intellectual property or confidentiality obligations without first engaging in the dispute resolution process described in this Section.
(b) Independent Contractor. BR is an independent contractor as defined by applicable law. Nothing contained in these Terms shall be construed to create a fiduciary relationship.
(c) Entire Agreement, Amendments, & Waiver. These Terms are the entire agreement with respect to the subject matter hereof and may only be modified in writing by both Parties. No waiver is effective unless in writing signed by the waiving party.
(d) Severability. Should any provision of these Terms be held to be void or unenforceable, the remaining provisions shall remain in full force and effect.
(e) Successors and Assigns. These Terms shall be binding and inure to the benefit of the Parties, and their respective successors and assigns. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign these Terms in their entirety, without consent of the other Party, to its parent, subsidiary, or affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.