This AROYA GO SOFTWARE LICENSE AGREEMENT (this “Agreement”) governs the use of and access to AROYA GO (defined herein) and Hardware Products (defined herein) and related matters. This Agreement is attached to and incorporated by reference into any Order Form (defined herein) between Addium, Inc. (“Addium”) and the customer identified on the applicable Order Form (“Customer”) (each a “Party,” and, together, the “Parties”). Capitalized terms used but not defined herein shall have the meaning assigned to them in the Order Form or the T&Cs (defined below) available at https://aroya.io/en/company/terms-and-conditions.
“You” means the entity you represent in accepting this Agreement or, if that does not apply, you individually. This Agreement is effective as of the date you first click “I agree” (or similar button or checkbox) or use or access AROYA GO or the AROYA Mobile Application, whichever is earlier (the “Effective Date”). This Agreement does not have to be signed in order to be binding. You indicate your assent to this Agreement by clicking “I agree” (or similar button or checkbox) at the time you register for or access AROYA GO or the AROYA Mobile Application, create an account to access AROYA GO or the AROYA Mobile Application, or enter into an Order Form.
If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer or such entity to this Agreement; (b) you have read and understand this Agreement; and (c) you agree to this Agreement on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click “I agree” (or similar button or checkbox) that is presented to you. Please note that if you create an account or access AROYA GO or the AROYA Mobile Application using an email address from your employer or another entity, then (a) you will be deemed to represent such party, (b) your click to accept the “I agree” (or similar button or checkbox) will bind the employer or that entity to this Agreement, and (c) that entity will be the Customer.
You agree that from time-to-time Addium may modify this Agreement and that any such changes shall become effective immediately.
IMPORTANT: If You do not agree to these Terms, do not access or use AROYA GO and do not click “I agree” (or similar button or checkbox).
- Certain Definitions.
- “Addium IP” means AROYA GO, the Documentation, the AROYA Mobile Application and Usage Data, and any other intellectual property provided to Customer or any User in connection with the foregoing or in which Addium has any right, title or interest.
- “AROYA Mobile Application” means a software application that may be downloaded by Customer through Addium websites, software platforms or marketplaces from time to time, including the Apple® App Store® or Google Play Store®, and loaded onto an iPad® or other mobile device on which the then-current AROYA Mobile Application has been designed to and is permitted to run.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” means possession of the power to direct the management and policies, including through the legal or beneficial ownership of fifty percent (50%) or more of the voting securities or interest in the subject entity.
- “AROYA GO” means Addium’s proprietary hosted product and software solution made available through Addium’s online platform, as may be modified, enhanced and/or updated from time to time.
- “Customer Data” means all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or a User to Addium, including through AROYA GO, or that is generated for Customer by AROYA GO.
- “Documentation” means Addium’s user guides, documentation, policies, and training materials, as updated from time to time, accessible via AROYA GO or Addium’s online platform.
- “Hardware Products” means any equipment, hardware, products, materials or other tangible goods that are purchased or leased by Customer from Addium pursuant to an Order Form or as part of its access to AROYA GO.
- “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components that are not proprietary to Addium.
- “Usage Data” means all data, content, results, metrics, statistics, and information related to Customer’s use of AROYA GO, which has been either de-identified or aggregated such that neither Customer, nor any User or individual may be identified.
- “Users” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use AROYA GO under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to AROYA GO has been purchased under an Order Form.
- Order Forms and T&Cs. Customer may enter into order forms via Addium’s online platform from time to time to purchase access to AROYA GO and related Hardware Products (each, an “Order Form”). Addium’s Terms and Conditions located at https://aroya.io/en/company/terms-and-conditions (the “T&Cs”) are hereby expressly incorporated into this Agreement by reference.
- Fees and Payment. Customer must pay all fees, expenses and other amounts specified in this Agreement and any applicable Order Form(s) (the “Fees”), in accordance with the payment and invoicing terms set forth in the applicable Order Form(s) and the T&Cs.
- Access Period. Except as otherwise provided in the applicable Order Form: (i) access to AROYA GO are purchased for a three (3) year period (“Access Period”); and (ii) at the end of the Access period, Customer will have the option of renewing its access to AROYA GO or entering into a subscription or agreement for another Addium Product.
- Access Suspension or Restriction. In addition to any other rights or remedies Addium may have under this Agreement, at law or in equity or otherwise, Addium may temporarily suspend or restrict Customer’s access to any portion or all of AROYA GO, without liability or obligation to Customer, including without limitation any obligation to refund any Fees: (i) as set forth in Section 3(a); or (ii) if Addium determines, in its sole discretion, that: (1) Customer’s use of AROYA GO disrupts or poses a security risk to AROYA GO or to any other customer or vendor of Addium; (2) Customer is using AROYA GO or Documentation for fraudulent or illegal activities or Customer or its Users are in breach of Agreement; (3) AROYA GO is being used in an unsafe or harmful manner, or (4) Customer or a User is using AROYA GO in a way that may subject Addium, its Affiliates, employees, officers, directors, contractors, other representatives, or any third party to liability.
- Termination by Addium. Addium may terminate this Agreement, effective on written notice to Customer, if: (i) Customer materially breaches this Agreement, and if capable of cure, such breach remains uncured for thirty (30) days after Addium provides Customer with written notice of such breach; or (ii) Customer: (1) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (2) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (3) makes or seeks to make a general assignment for the benefit of its creditors; or (4) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Termination by Customer and Refund. Within thirty (30) days of entering into an Order Form or using AROYA GO, whichever is earlier, Customer may terminate this Agreement for any reason and receive a refund of Fees paid by Customer under this Agreement, except for any shipping fees or costs, by submitting written notice to Addium of its intent to terminate the Agreement and otherwise complying with Section 2(g) and other applicable provisions of this Agreement. After such thirty (30) day period, Customer shall not be entitled to a refund of Fees.
- Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, Customer must, as of the date of such termination or expiration, immediately cease accessing or otherwise utilizing AROYA GO and the Addium IP. Customer shall delete, destroy, or return all copies of the Addium IP and certify in writing to the Addium that the Addium IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination nor, except as set forth in Section 2(f), entitle Customer to any refund.
- Survival. The following provisions shall survive any expiration or termination of this Agreement: Sections 1, 2, 3(c), 3(d), 3(e), 3(f), 3(h), 4, 5, 6, and 7, and any other provisions that by their terms are intended to survive.
- Customer Data Retention and Return. Upon the termination or expiration of this Agreement, applicable Customer Data may be preserved for up to ninety (90) days thereafter (the “Retention Period”). During the Access Period or the Retention Period, within thirty (30) days of receipt of Customer’s written request, Addium will facilitate electronic delivery of any Customer Data in AROYA GO to Customer in Addium’s standard database export format at no additional charge. After the Retention Period, the Customer Data may be permanently deleted from Addium’s servers and will be irrecoverable by Customer. Customer hereby acknowledges and agrees that Addium shall have no obligation to retain Customer Data after the Retention Period unless otherwise required by applicable law. If Customer renews the Access Period or enters into a new subscription or agreement for different Addium Products pursuant to an Order Form prior to the end of the Retention Period, Customer Data shall remain available to Customer in accordance with this Agreement.
- Access Grant. Subject to the terms of this Agreement, Addium grants to Customer and its Users a limited, revocable, nonexclusive, nontransferable, nonassignable, nonsublicensable: (i) right to access and use AROYA GO during the Access Period, solely for use by Users in accordance with the Order Form, T&Cs and this Agreement; and (ii) right to use the Documentation during the Access Period in connection with its use of AROYA GO. The foregoing rights and licenses are limited to Customer’s internal use. Access may be temporarily restricted or suspended without liability or obligation to Customer for (1) Scheduled Downtime (defined below) or other reasonably required maintenance; (2) downtime or degradation or other maintenance due to a force majeure event or any other circumstances beyond Addium’s reasonable control, including Customer’s or any User’s use of Third Party Materials or the acts or omissions of any party besides Addium; (3) use of AROYA GO other than in compliance with the express terms of this Agreement and the Documentation; and (4) any suspension or termination of Customer’s or any Users’ access to or use of AROYA GO as permitted by this Agreement. Addium may from time to time in its sole and absolute discretion make any changes to AROYA GO and/or Documentation that it deems necessary or useful.
- Third-Party Materials. As a condition precedent to installing or accessing any Third-Party Materials (if any), Customer may be required to execute a click-through, shrink-wrap End User License Agreement (EULA) or similar license agreement provided by the Third-Party Materials provider. Customer’s use of such Third-Party Materials is subject to the applicable third-party license terms and conditions. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to the Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Third-Party Materials are and will remain with the respective rights holders in the Third-Party Materials.
- Addium IP. Addium reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Addium IP. Customer acknowledges that, as between Customer and Addium, Addium owns all right, title, and interest, including all intellectual property rights, in and to the Addium IP and Customer waives any claims, demands, actions or causes of action to the contrary.
- Customer Data and Privacy. Addium acknowledges that, as between Addium and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants Addium a worldwide, perpetual, nonexclusive, royalty-free, fully paid-up, assignable, transferable, sublicensable right and license to collect, host, store, transfer, display, perform, reproduce, modify, use, distribute and create derivative works of Customer Data, to provide AROYA GO to Customer and to create or generate Usage Data. As part of the provision of AROYA GO or provision of Hardware Products to Customer, Addium may provide Customer Data to third parties, including companies providing other controllers or hardware, which in turn may utilize the Customer Data to provide other services or as part of AROYA GO. Except as set forth in this Agreement or any other agreement between the Parties, Addium shall not provide Customer Data to third parties.
- Usage Data and Related Rights and Duties. Notwithstanding anything to the contrary in this Agreement or any other written agreement between the Parties, Addium may monitor Customer’s use of AROYA GO and collect, compile, and generate Usage Data, including from Customer Data. The Parties acknowledge and agree that Addium (i) owns and holds any and all worldwide rights, title, and interests in and to the Usage Data, including, without limitation, all intellectual property rights and any registration and patent rights which may subsist therein, and (ii) may use the Usage Date for any purpose, including, without limitation, diagnostic and corrective purposes in connection with providing technical and customer support, to deliver performance insights, to analyze, enhance and improve its products and services, to develop new products and services.
- Feedback. Customer acknowledges and agrees that Addium may, at its discretion and for any purpose, use, modify, and incorporate into AROYA GO or other services or products any feedback, comments, or suggestions Customer or Users provide to Addium (collectively, “Feedback”), without any obligation or liability to Customer or Users, although Addium is not required to use any Feedback.
- Scheduled Downtime. Addium will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of AROYA GO between the hours of 8 PM and 6 AM, Mountain Time; and (b) give Customer at least 24 hours prior notice of all scheduled outages of the Services (“Scheduled Downtime”). In the event of an emergency or force majeure event, Addium may schedule downtime for maintenance of the Services at any time and without prior notice.
- Data Backup. AROYA GO does not replace the need for Customer to maintain regular data backups or redundant data archives. ADDIUM HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
- Obligations and Restrictions.
- Confidentiality and Data Security. The Parties shall comply with the obligations of confidentiality set forth in the T&Cs. Addium will implement commercially reasonable technical and organizational measures designed to secure the confidentiality and security of AROYA GO and any Customer Data.
- General Restrictions. Customer shall not (and shall not allow any Users or other third party to): (i) copy, modify, adapt, translate, or otherwise prepare derivative works or improvements of Addium IP, or incorporate Addium IP into or with other software; (ii) distribute, sell, sublicense, rent, lease, lend or use Addium IP for time sharing, service bureau, software as a service, cloud or other technology or service or similar purposes, or otherwise make the Addium IP available to any third party; (iii) frame, scrape, or mirror any content forming part of the Addium IP; (iv) use the Addium IP to store or transmit any software, code, files, scripts, agents, or programs intended to do harm, including viruses, worms, time bombs, and Trojan horses; (v) interfere with or disrupt the integrity or performance of the Addium IP; (vi) bypass or breach any security device or protection used for or contained in the Addium IP or otherwise attempt to gain unauthorized access to the Addium IP or its related systems or networks; (vii) decompile, disassemble, or otherwise reverse engineer the Addium IP or attempt to reconstruct or discover any source code, APIs, underlying ideas, algorithms, file formats, data or programming interfaces of the Addium IP by any means whatsoever; (viii) remove, alter, obscure, or otherwise change any proprietary or other notices from the Addium IP; (ix) use the Addium IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (x) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to Addium IP; (xi) otherwise access Addium IP beyond the scope of authorization granted hereunder; or (xii) use Addium IP for purposes of: (1) benchmarking or competitive analysis of Addium IP; (2) developing, using, or providing a competing software product or service; or (3) any other purpose that is to Addium’s detriment or commercial disadvantage. If Customer becomes aware of any actual or threatened activity prohibited by Section 4(b) or other provisions of this Agreement, Customer shall, and shall cause its Users to, immediately take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to AROYA GO and other Addium IP and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access), and immediately notify Addium of any such actual or threatened activity.
- Customer Compliance. Customer shall use AROYA GO only in accordance with this Agreement, the Documentation, the applicable Order Form(s), and applicable laws. Customer hereby represents and warrants to Addium that: (a) it has sufficient rights in the Customer Data to authorize Addium to use the Customer Data as contemplated by this Agreement; (b) the Customer Data and its use hereunder will not violate or infringe the rights of any third party; and (c) Customer’s use of AROYA GO and all Customer Data is at all times compliant with its own privacy policies and all applicable laws, including without limitation those related to data privacy, international communications and the exportation of technical or personal data.
- Credentials. Users may be assigned a unique PIN by Addium; otherwise, each User must create their own unique username and password (collectively, the “Credentials”). Credentials are specific to each User and may not be shared with or transferred to any other person. Addium reserves the right to refuse to register any username or cancel any password that it deems inappropriate. Users are responsible for maintaining the confidentiality and security of the Credentials. Customer will ensure that all Users log out of AROYA GO at the end of each session, and Customer will immediately notify Addium if it knows or suspects that a User’s Credentials have been used by any other person (including other employees of Customer). Customer will ensure that (a) Users only access AROYA GO using their appropriate User-specific Credentials and (b) no other person (including other employees of Customer) will access AROYA GO without using Credentials that have been specifically assigned to that person.
- Users. Customer is responsible and liable for all uses of AROYA GO resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will ensure that all Users are aware of this Agreement’s provisions and will cause Users to comply with such provisions. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of AROYA GO and will notify Addium promptly upon discovering any such unauthorized access or use.
- Hardware Products and Customer Equipment. Customer acknowledges and agrees that certain Hardware Products are required for use of AROYA GO. Customer shall be responsible for obtaining and maintaining these Hardware Products, and any other materials, equipment and ancillary services needed to prepare its premises for installation of the Hardware Products, and to connect to, access or otherwise use AROYA GO, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Customer Equipment”). Customer is solely responsible for determining whether the Customer Equipment or any other third-party information technology hardware or software is adequate for and compatible with the Hardware Products and AROYA GO. Customer shall also be responsible for maintaining the security of the Customer Equipment and for all uses of the Customer Equipment, with or without Customer’s knowledge or consent. Customer shall be responsible for any damages or injuries caused by the Customer Equipment. Customer acknowledges that if Customer fails to maintain the Hardware Products and Customer Equipment, such failure may negatively affect performance of AROYA GO, and Customer further acknowledges and agrees that Addium will not be responsible for any deficiencies in the performance of AROYA GO, or for any damages or injuries caused by such failure or otherwise by Customer Equipment.
- Prohibited Data. Customer acknowledges that AROYA GO is not designed with security or within following categories of information or data: (a) any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located; (b) data that is classified or subject to governmental prohibitions or protections against processing or dissemination or disclosure; (c) data, the processing or possession of which is prohibited by applicable laws; or (d) stolen or fraudulent data (each of the foregoing, ”Prohibited Data”). Customer shall not, and shall not permit any User or other person to, provide any Prohibited Data to, or process any Prohibited Data through, AROYA GO. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
- No Warranties; Disclaimer.
- No Warranties. Customer acknowledges AROYA GO is an online software product, and to provide improved customer experience Addium may make changes to AROYA GO, and Addium may update the Documentation accordingly. In the event of any unplanned unavailability of AROYA GO during the Access Period, Addium shall, as its sole liability and obligations and Customer’s sole and exclusive remedy for such unavailability, use commercially reasonable efforts to restore Customer’s access to AROYA GO. Except as provided in Section 2(f), Customer shall not have any rights to a refund of Fees because of such unplanned unavailability.
- DISCLAIMER. EXCEPT THE FOR SPECIFIC OBLIGATIONS SET FORTH IN THIS SECTION 5, ADDIUM PROVIDES AROYA GO, DOCUMENTATION AND ANY OTHER ADDIUM IP “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE.” AROYA GO MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INCLUDING WITHOUT LIMITATION THOSE INHERENT IN THE USE OF SAAS, CLOUD COMPUTING, THE INTERNET, AND ELECTRONIC COMMUNICATIONS, AND ADDIUM SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE SPECIFIC OBLIGATIONS EXPRESSLY SET FORTH IN THIS SECTION, ADDIUM MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT AROYA GO AND DOCUMENTATION WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS; THAT THE CUSTOMER DATA OR ANY OTHER DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; ANY WARRANTY (WHETHER EXPRESS, IMPLIED, OR STATUTORY) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT; ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR ANY WARRANTY THAT THE HARDWARE PRODUCTS OR AROYA GO WILL BE COMPATIBLE WITH HARDWARE OR SOFTWARE OFFERED, PROVIDED, OR CREATED BY THIRD PARTIES.
- LIMITATIONS ON RELIANCE ON DATA. CUSTOMER SHALL NOT RELY ON, REFERENCE, UTILIZE, INCORPORATE OR OTHERWISE USE CUSTOMER DATA, USAGE DATA OR OTHER INFORMATION OR DATA GENERATED BY OR AS PART OF AROYA GO OR HARDWARE PRODUCTS TO MEET ITS OBLIGATIONS OR SATISFY REQUIREMENTS UNDER APPLICABLE WORKER HEALTH AND SAFETY LAWS. WITHOUT LIMITING THE FOREGOING, FOR EXAMPLE, CUSTOMER SHALL NOT RELY ON CARBON DIOXIDE DATA PRODUCED BY SENSORS TO MEET CUSTOMER’S OBLIGATIONS RELATED TO EXPSOURE TO CARBON DIOXIDE AS THE SENSORS ARE NOT DESIGNED FOR THIS PURPOSE.
- Indemnification. Customer will defend, indemnify, and hold Addium and its Affiliates, and their officers, directors, employees and agents harmless against any loss, damage, or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Addium by a third party based upon or related to: (a) allegations that the Customer Data infringes the rights of (including the intellectual property rights or any privacy rights), or has caused harm to, a third party; or (b) Customer’s breach of this Agreement; provided that Addium: (i) promptly gives written notice of the Claim to Customer (provided, however, that Addium’s failure to give such notice to Customer shall not limit Addium’s rights under this Section 6 except to the extent Customer’s ability to defend any such Claim is actually prejudiced by such failure); (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Addium of all liability); and (iii) provides to Customer, at Customer’s cost, all reasonable assistance.
- Entire Agreement. This Agreement (including any exhibits, attachments, schedules, or addenda), the Order Form(s), the T&Cs, and any applicable online terms referenced herein constitute the entire agreement between Customer and Addium regarding AROYA GO and the Hardware Products, and this Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.