DATAWATCH DIRECTACCESS AGREEMENT
These Terms and Conditions, together with any applicable order contract (collectively, the “Agreement”) is a legally binding agreement between you (“Customer”) and Datawatch Systems, Inc., a Maryland corporation, having its principal place of business at 4520 East West Highway, Bethesda. Maryland 20814 (“Datawatch”).
THESE TERMS AND CONDITIONS APPLY TO AND GOVERN YOUR ACCESS TO AND USE OF THE DATAWATCH DIRECTACCESS PLATFORM INCLUDING THE WEBBASED APPLICATION AND/OR MOBILE APP.
IT IS IMPORTANT THAT YOU READ AND UNDERSTAND DATAWATCH’S TERMS AND CONDITIONS. BY ACCESSING OR USING THE DIRECTACCESS PLATFORM, YOU INDICATE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT ACCESS THE DIRECTACCESS PLATFORM.
NOTE: CUSTOMER HEREBY REPRESENTS AND WARRANTS TO DATAWATCH THAT (I) CUSTOMER IS NOT LOCATED IN A COUNTRY THAT IS OUTSIDE THE UNITED STATES; AND (II) CUSTOMER IS NOT LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.
a. “Device” means any smartphone, tablet or other mobile device that is owned or controlled by Customer.
b. “DirectAccess Platform” shall mean individually and collectively the Web-based Application and Mobile App.
c. “Mobile App” shall mean the software made available through an iOS / Android mobile application downloaded to the Customer’s mobile Device and hereby licensed by Datawatch to allow use of the DirectAccess Platform through which Customers can manage their access control systems.
d. “Web-based Application” shall mean the software (DirectAccess and DirectAccess Pro) made available via a web-based portal on the Customer’s PC or Mac computer and hereby licensed by Datawatch to allow use of the DirectAccess Platform through which Customers can manage their access control systems.
2. Scope and Acceptance.
a. Anyone affiliated with Customer who accesses or uses the DirectAccess Platform is a “User.” This Agreement sets forth Customer’s rights and obligations, and related User’s rights and obligations, with respect to access and use of the DirectAccess Platform and use of any and all information or data of any kind arising from access to, or use of, the DirectAccess Platform, including, without limitation, any text, graphics, sound recordings, audio, video, and art work. Use of the term “Customer” herein collectively refers to Customer and its related Users.
b. DATAWATCH RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO CHANGE, MODIFY, ADD OR REMOVE PORTIONS OF THIS AGREEMENT FROM TIME TO TIME, WITHOUT PRIOR NOTICE TO CUSTOMER (AS DESCRIBED IN SECTION 17.d. BELOW). DATAWATCH WILL POST MATERIAL CHANGES ON THE DIRECTACCESS PLATFORM, HOWEVER, IT IS CUSTOMER’S RESPONSIBILITY TO CHECK THIS AGREEMENT PERIODICALLY FOR CHANGES. CUSTOMER’S CONTINUED USE OF THE DIRECTACCESS PLATFORM FOLLOWING THE POSTING OF ANY REVISIONS WILL MEAN THAT CUSTOMER ACCEPTS AND AGREES TO THE REVISED TERMS.
3. Account Information and Security; Operation.
a. In order to use the DirectAccess Platform, Datawatch may ask Customer to create an account and select a password and/or provide Datawatch with certain information. Such information will be held and used in strict confidence.
b. Customer agrees to provide Datawatch with accurate, complete, and updated information on Customer’s account. Customer acknowledges and agrees that Customer is solely responsible for maintaining the confidentiality of any account information (user ID and/or password) for use in connection with the DirectAccess Platform. DATAWATCH WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM CUSTOMER’S FAILURE TO SAFEGUARD CUSTOMER’S ACCOUNT OR TO COMPLY WITH THIS SECTION. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY ACTIVITY IN CUSTOMER’S ACCOUNT, WHETHER OR NOT AUTHORIZED BY CUSTOMER.
c. Customer agrees to notify Datawatch immediately of any unauthorized use of Customer’s account or any other breach of security related to the DirectAccess Platform.
d. Datawatch reserves complete and sole discretion with respect to the operation of the DirectAccess Platform. Datawatch reserves the right to change Terms and Conditions, and warranties without notice to Customer. Datawatch also reserve the right to withdraw, suspend, or discontinue any functionality or feature of the DirectAccess Platform at any time.
4. Platform Availability.
a. It is not possible for Datawatch to operate the DirectAccess Platform with 100% guaranteed uptime. Datawatch will make commercially reasonable efforts to keep the DirectAccess Platform fully operational at all times. However, certain technical difficulties, routine site maintenance and upgrades, and other events may, from time to time, result in interruptions to or outages of the DirectAccess Platform. In addition, Datawatch reserves the right at any time, and from time to time, to modify or discontinue (on a temporary or permanent basis) certain functions of the DirectAccess Platform, with or without notice to Customer.
b. CUSTOMER AGREES THAT DATAWATCH SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY DIRECT OR INDIRECT CONSEQUENCE OF ANY MODIFICATION, SUSPENSION, DISCONTINUANCE OF, OR INTERRUPTION TO THE DIRECTACCESS PLATFORM.
Subject to the Terms, Datawatch grants Customer a limited, non-exclusive, nontransferable,
non-assignable, non-sublicensable, and revocable license to access and use the DirectAccess Platform including the right to download, install, and use the Mobile App on a single mobile Device owned and controlled by Customer.
6. Restrictions on Use.
a. Customer shall use the DirectAccess Platform strictly in accordance with the terms herein and any posted policy that appears on Datawatch’s website, and only for lawful purposes. Unless otherwise agreed in writing Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the DirectAccess Platform or make available to any third party the Mobile App in any way; (ii) modify or make derivative works based upon the DirectAccess Platform; (iii) “frame” or “mirror” the DirectAccess Platform on any other server or wireless or Internet-based device; (iv) reverse engineer or access the DirectAccess Platform in order to (a) design or build a competitive product or service, (b) design or build a product using similar ideas, features, functions or graphics of the DirectAccess Platform, or (c) copy any ideas, features, functions or graphics of the DirectAccess Platform, or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the DirectAccess Platform.
b. Datawatch reserves the right to terminate Customer’s access to the DirectAccess Platform at any time, without notice, if Datawatch determines, in its sole discretion, that Customer has abused or violated any of these terms and conditions.
7. Restriction on Transfer. Customer may not rent, lease, lend, sublicense or transfer its right
to access and use the DirectAccess Platform, this License or any of the rights granted hereunder. Any attempted transfer in contravention of this provision shall be null and void and of no force or effect.
8. System Requirements and Limitations for Mobile App.
a. In order to use the Mobile App, Customer is required to have a compatible mobile telephone or handheld device, internet access, and the necessary minimum specifications (‘Software Requirements’).
b. The Software Requirements are as follows: Apple iOS devices running iOS 10, and Android OS devices running Android OS 6; Language: English.
c. From time to time, Datawatch may offer version upgrades of the Mobile App software to add support for new functions and services.
d. The Mobile App is available to handheld mobile devices running Apple iOS and Android OS Operating Systems. Datawatch will use commercially reasonable efforts to ensure the Mobile App is available at all times. CUSTOMER ACKNOWLEDGES AND AGREES THE APP IS MADE AVAILABLE FOR USE OVER THE INTERNET AND MOBILE NETWORKS AND, AS SUCH, THE QUALITY AND AVAILABILITY OF THE MOBILE APP MAY BE AFFECTED BY FACTORS OUTSIDE DATAWATCH’S REASONABLE CONTROL.
e. Notwithstanding the terms of this Section 9, Datawatch does not warrant that the Mobile App will be compatible or interoperable with Customer’s mobile Device or any other piece of hardware, software, equipment or device installed on or used in connection with Customer’s mobile Device. Customer acknowledges and agrees that Datawatch and its affiliates, partners, suppliers and licensors shall have no liability to Customer for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
9. Mobile Charges.
Customer is responsible for payment of any costs or expenses incurred as a result of downloading and using the Mobile App. Please check with your service provider for details.
10. Intellectual Property Rights.
The DirectAccess Platform, and certain content therein, and any underlying software may be protected by copyright, trademark, patent, and/or other intellectual property and proprietary rights laws and are owned (along with all proprietary rights therein, including all rights, in and to the DirectAccess Platform, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the DirectAccess Platform) by Datawatch. Customer agrees that Customer will not copy, distribute, republish, display, post, transmit, download, or modify any content you obtain from the DirectAccess Platform, or any other Datawatch owned intellectual property without Datawatch’s prior written permission.
11. Term and Termination.
This License shall be effective until terminated. Datawatch may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this License and the rights afforded to you hereunder with or without prior notice. Furthermore, if you fail to comply with any terms and conditions of this License, then this License and any rights afforded to you hereunder shall terminate automatically, without any notice or other action by Us. Upon the termination of this License, you shall cease all use of the Application and uninstall it from your mobile Device.
12. Disclaimer of Warranties.
THE DIRECTACCESS PLATFORM AND ANY INFORMATION PROVIDED THROUGH THE DIRECTACCESS PLATFORM, INCLUDING ANY THIRD PARTY APPLICATIONS OR THIRD PARTY PROVIDED INFORMATION, ARE PROVIDED BY DATAWATCH ON AN “AS IS” BASIS, AND NEITHER DATAWATCH NOR ITS PARTNERS, AFFILIATES, VENDORS OR SUBCONTRACTORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE DIRECTACCESS PLATFORM OR THE INFORMATION MADE AVAILABLE BY OR THROUGH THE DIRECTACCESS PLATFORM. IN ADDITION, DATAWATCH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY AND NON-STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATION, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR CUSTOM OF TRADE. NEITHER DATAWATCH NOR ANY OF ITS PARTNERS, AFFILIATES, VENDORS OR SUBCONTRACTORS WARRANTS THAT USE OF THE DIRECTACCESS PLATFORM WILL BE UNINTERRUPTED, AVAILABLE AT ANY TIME OR FROM ANY PARTICULAR LOCATION, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE DIRECTACCESS PLATFORM IS FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS.
13. Limitation of Liability.
IN NO EVENT WILL DATAWATCH, ANY OF ITS PARTNERS, AFFILIATES, VENDORS OR SUBCONTRACTORS, INCLUDING THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE DIRECTACCESS PLATFORM, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER DATAWATCH KNEW OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DATAWATCH’S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING FROM OR RELATING TO THE DIRECTACCESS PLATFORM (REGARDLESS OF THE CAUSE OF ACTION, WHETHER UNDER CONTRACT, TORT, OR OTHER LEGAL THEORY) IS LIMITED TO THE AMOUNT PAID BY CUSTOMER TO DATAWATCH FOR THE SPECIFIC SERVICE THAT IS THE SUBJECT OF THE DISPUTE. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF, AND SHALL APPLY REGARDLESS OF, ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
Customer acknowledges that Datawatch has agreed to provide the DirectAccess Platform in
reliance on the exclusions of liability and disclaimers of warranty set forth herein.
Customer agrees to indemnify and hold Datawatch, its partners, affiliates, vendors, subcontractors, officers, employees, and agents harmless from any and all losses, liabilities, damages and/or costs (including reasonable attorneys’ fees) arising from any thirdparty claims arising from or related to your use of the DirectAccess Platform, or your violation of the Terms.
15. Force Majeure. Customer acknowledges and agrees that Datawatch shall not be liable to
Customer for any delay or failure to perform, in full or in part, any of its obligations in connection with the DirectAccess Platform provided that such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond Datawatch’s control, including but not limited to acts of God, wars, riots, strikes, floods, fire, earthquake, hurricane, unusually severe weather, labor disputes, inevitable accidents, destruction caused by public carrier, or other such causes beyond the control of Datawatch.
16. Export Control.
Datawatch operates the software underlying and required for Customer’s use of the DirectAccess Platform from the United States of America and it is possible that such software or some downloads from the DirectAccess Platform could be subject to government export controls or other restrictions. Customer represents that Customer is not subject to such controls and restrictions and that Customer will not transfer or export such software from the United States (including, for example, providing such software to any foreign person or entity in the United States) or re-export such software outside the United States in violation of United States export laws and regulations.
a. Assignment. Customer shall not assign this Agreement, nor transfer any of its rights or obligations under this Agreement, without the prior written consent of Datawatch.
b. Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
c. Severability. If one or more provisions of this Agreement are held to be unenforceable, they shall be excluded, and the remaining provisions enforced.
d. Modification. Datawatch may modify or amend the terms of this Agreement by posting a copy of the modified or amended Terms. Customer will be deemed to have agreed to any such modification or amendment by Customers’ decision to continue using the DirectAccess Platform following the date on which the modified or amended Agreement is posted on Datawatch’s website.
e. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Maryland, without regard to any conflicts of law principles applied in that state. CUSTOMER HEREBY EXPRESSLY CONSENTS TO EXCLUSIVE JURISDICTION AND VENUE IN THE COURTS LOCATED IN THE STATE OF MARYLAND FOR ALL MATTERS ARISING IN CONNECTION WITH THESE TERMS OR CUSTOMER’S ACCESS OR USE OF THE DIRECTACCESS PLATFORM.
f. Access and Use Where Prohibited. Access to and use of the DirectAccess Platform are unauthorized in any jurisdiction that does not give effect to all provisions of the Agreement, including this Section.
g. Entire Agreement. These Terms and the other policies and terms posted on Datawatch’s website set forth the entire agreement between Datawatch and Customer on this subject matter and supersede all other negotiations, understandings, statements and agreements between the parties.