RemoteLock Professional Services Agreement
Last updated on December 14, 2022.
This Professional Services Agreement (the “Agreement”) is between RemoteLock, Inc. (“RemoteLock”), and the individual or entity (the “Customer”) signing or otherwise accepting any order form or similar document (“Order Form”) that references this Agreement. This Agreement is effective as of Customer’s execution and RemoteLock’s acceptance of the Order Form referencing this Agreement (the “Effective Date”). If the individual accepting this Agreement is accepting on behalf of a legal entity, such individual represents that they have the authority to bind such entity and its affiliates to this Agreement, in which case the term “Customer” shall refer to the entity and its affiliates.
Definitions.
“Customer Content” is all information, content and data provided by or on behalf of Customer to RemoteLock in connection with the Professional Services.
“Intellectual Property Rights” means all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.
“Professional Services” means the RemoteLock professional services agreed to in the applicable Order Form, which may include, without limitation, onboarding, implementation, configuration, consulting, customer support and/or training services.
“RemoteLock Access Control Service(s)” means RemoteLock’s remote device control services that are designed to permit a user to manage, control and/or access certain remote devices, including access control and security devices (such as locks).
Professional Services.
The Professional Services will be provided on a time and materials basis unless otherwise set forth in the Order Form. Customer shall reimburse RemoteLock for approved expenses reasonably incurred in the performance of Professional Services. RemoteLock shall provide reasonable documentation of such expenses upon Customer’s request. RemoteLock may provide the Professional Services through its third-party contractors but, in all such cases, RemoteLock will remain responsible for such contractors’ performance. The parties may make changes to the scope and/or cost of the Professional Services by executing a “Change Order” setting forth such changes. For the avoidance of doubt, this Agreement is limited to Professional Services and does not convey any right to any other RemoteLock services and/or products, including the RemoteLock Access Control Services. Customer acknowledges that Customer’s obligations set forth herein are not contingent on the provision and/or availability of other RemoteLock services and/or products or the features thereof.
Reliance on Customer Information.
To the extent that Customer has provided information to RemoteLock to help determine the cost, feasibility, scope, timeline or any other aspect of the Professional Services, Customer hereby represents that such information is accurate and complete. To the extent that such information is inaccurate and/or additional information that RemoteLock could not have reasonably discovered before the Effective Date is discovered and such inaccuracy or new information materially impacts the cost, feasibility, scope, timeline or any other aspect of the Professional Services, the parties agree to negotiate in good faith to execute a Change Order to address such material impact. If the parties are unable to agree upon such Change Order within a reasonable amount of time, which shall be determined in RemoteLock’s sole discretion, RemoteLock may terminate this Agreement and Customer shall owe RemoteLock the Fees for work performed as of the date of termination.
Customer Cooperation.
Customer will reasonably cooperate with RemoteLock to facilitate the performance of the Professional Services which shall include, but not be limited to, the following: (i) assigning a project manager with the requisite skills and training to serve as Customer’s primary point of contact; (ii) allocating sufficient resources to ensure Customer’s ability to meet its obligations; and (iii) providing RemoteLock with, or access to, such facilities (if applicable), equipment and support as are reasonably necessary for RemoteLock to provide the Professional Services. RemoteLock shall have no liability in connection with the Professional Services to the extent Customer fails to fully comply with this Section.
Term and Termination.
Term. This Agreement shall commence on the Effective Date and shall continue until the Professional Services are completed and all Fees are paid and/or as this Agreement is otherwise terminated and/or expires according to the terms herein.
Termination. Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated under the following circumstances. RemoteLock may terminate this Agreement or suspend the Professional Services immediately and without notice for Customer’s material breach of this Agreement. In the event of a termination pursuant to the foregoing sentence, Customer shall not be entitled to any refund of Fees paid, including any amounts paid for Professional Services that are not yet completed. If RemoteLock materially breaches this Agreement, Customer may terminate this Agreement “for cause” by providing thirty (30) days’ prior written notice to RemoteLock detailing such material breach, provided that, such termination shall be void if RemoteLock cures its breach within the thirty (30) day period. If Customer terminates “for cause” RemoteLock will refund any Fees prepaid for Professional Services not yet performed. Customer may also terminate this Agreement “for convenience” at any time by providing written notice to RemoteLock, however, Customer agrees that all Fees shall remain due to RemoteLock if Customer terminates for convenience.
Provisions that by their nature, should survive termination of this Agreement shall survive termination. By way of example, the following will survive termination: any obligation Customer has to pay, indemnification obligations, any limitation of liability, terms regarding ownership of intellectual property and terms regarding disputes.
Fees.
Payment. Customer agrees that RemoteLock may charge Customer for all applicable fees for the Professional Services (“Fees”). Fees may be calculated on a time and materials or fixed fee basis. If Fees are on a time and materials basis, the hourly rate shall be RemoteLock’s then applicable standard hourly rates for the Professional Services unless otherwise set forth in the Order Form. If Fees are on a fixed fee basis, the applicable fixed fee shall be set forth in the Order Form. All quoted Fees will be exclusive of taxes, duties and the like, which may be charged by RemoteLock and will be paid by Customer (exclusive of taxes based on RemoteLock’s net income). If Customer has provided a credit and/or debit card for payment, Customer agrees that fixed fees may be charged immediately and that hourly fees may be charged according to RemoteLock’s then applicable policy. If any payment is not received, is returned unpaid or if any credit card or similar transaction is rejected, denied, challenged or reversed, RemoteLock may suspend the Professional Services until payment is made or terminate this Agreement for material breach.
If the Order Form indicates that Fees shall be invoiced, Fees shall be due within thirty (30) days of invoice date. Invoices for fixed fees may be sent immediately and invoices for hourly fees may be sent according to RemoteLock’s then applicable policy. Customer agrees that RemoteLock may send invoices to any address that is set forth on the Order Form. RemoteLock shall not be required to use Customer’s payment system to submit an invoice, and Customer hereby represents that Customer does not require a purchase order to issue before invoicing. If Customer fails to pay the Fees on time, RemoteLock may charge the lesser of 1% interest per month or the maximum allowable under applicable law on overdue amounts.
Confidentiality.
Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain non-public information regarding the Disclosing Party’s business, including technical, marketing, financial, personnel, planning, and other information (“Confidential Information”). Regardless of whether marked as confidential or not, any non-public information regarding RemoteLock services and/or software shall be deemed the Confidential Information of RemoteLock.
Protection of Confidential Information. The Receiving Party shall not disclose the Confidential Information of the Disclosing Party, and shall otherwise protect such Confidential Information, using the same degree of care which the Receiving Party ordinarily uses with respect to its own Confidential Information, but in no event with less than reasonable care. The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose other than in connection with the Receiving Party’s rights and duties pursuant to this Agreement, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to the Confidential Information of the Disclosing Party, bound by confidentiality terms no less restrictive than those contained herein.
Exceptions. Notwithstanding anything herein to the contrary, Confidential Information shall not be deemed to include any information which (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party as reflected in the written records of the Receiving Party; (ii) was or becomes lawfully known to the general public without breach of this Agreement; (iii) was independently developed by the Receiving Party without access to, or use of, the Confidential Information; or (iv) is required to be disclosed by law or by the order or a court or similar judicial or administrative body; provided, however, (a) that the Receiving Party shall notify the Disclosing Party of such requirement immediately and in writing, and shall cooperate reasonably with the Disclosing Party, at the Disclosing Party’s expense, in the obtaining of a protective or similar order with respect thereto and (b) such information shall continue to be deemed Confidential Information with respect to any other use or disclosure.
Intellectual Property Ownership, Feedback and Customer Content.
Intellectual Property Ownership. The parties hereby agree that the Professional Services may involve the configuration, customization or improvement of the RemoteLock Access Control Services, and therefore any deliverables and associated Intellectual Property Rights created in connection with the Professional Services (“Deliverables”) will generally be inoperative without a subscription to the RemoteLock Access Control Services. Accordingly, as between the parties, RemoteLock shall solely and exclusively own all right, title, and interest in the Deliverables, including any improvements to the RemoteLock Access Control Services and all derivatives, enhancements and modifications thereof. Customer hereby makes all assignments necessary to accomplish the foregoing ownership.
Subject to the terms and conditions hereof, RemoteLock grants Customer a non-exclusive, non-transferable, non-sublicensable license to use Deliverables solely in connection with Customer’s permitted use of the RemoteLock Access Control Services. For the avoidance of doubt, Customer hereby acknowledges that additional fees and a separate agreement shall apply to obtain access to the RemoteLock Access Control Services and that RemoteLock does not represent that Customer shall be guaranteed and/or have uninterrupted access to the RemoteLock Access Control Services.
Feedback. Customer may communicate with RemoteLock about the Professional Services and hereby agrees that RemoteLock shall own all feedback, comments, suggestions, ideas, concepts and changes that Customer communicates to RemoteLock regarding the Professional Services and RemoteLock Access Control Services and all associated Intellectual Property Rights (collectively the “Feedback”). Customer hereby assigns to RemoteLock all of Customer’s right, title and interest thereto. Customer agrees that Customer will not knowingly provide RemoteLock any Feedback that is subject to third party Intellectual Property Rights. Customer agrees to cooperate fully with RemoteLock with respect to signing further documents and doing such other acts as are reasonably requested by RemoteLock to confirm that RemoteLock owns the Feedback and to enable RemoteLock to register and/or protect any associated Intellectual Property Rights. For the avoidance of doubt, Feedback shall not be considered Customer’s Confidential Information and RemoteLock shall not owe Customer any compensation in connection with the Feedback.
Customer Content. Customer will be responsible for obtaining permission for the use of all Customer Content in connection with the Professional Services whether or not such Customer Content is specifically requested by RemoteLock as part of providing the Professional Services. Customer grants to RemoteLock all necessary rights and licenses in and to the Customer Content necessary for RemoteLock to provide the Professional Services and otherwise perform its obligations under this Agreement. Customer will not, and will not permit any third parties to, provide Customer Content that, and Customer represents and warrants that no Customer Content: (a) infringes, misappropriates or violates any third party rights, including any Intellectual Property Right or privacy rights, or is defamatory, harmful to minors, obscene or child pornographic; (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any of the RemoteLock Access Control Services, data or personal information; or (c) is false, misleading or inaccurate. RemoteLock will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any Customer Content. RemoteLock is under no obligation to review any Customer Content for accuracy or potential liability.
Limited Warranty and Warranty Disclaimer.
Limited Warranty.
RemoteLock warrants that the Professional Services provided pursuant to this Agreement will be performed in a timely and professional manner, consistent with generally-accepted industry standards; provided that Customer’s sole and exclusive remedy for any breach of this warranty will be, at RemoteLock’s option, re-performance of the Professional Services or termination of the applicable Order Form and return of the portion of the Fees paid to RemoteLock by Customer for the nonconforming portion of the Professional Services.
Warranty Disclaimer.
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN CUSTOMER AGREES THAT REMOTELOCK AND ANY CONTRACTORS PROVIDE THE PROFESSIONAL SERVICES AND DELIVERABLES ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTIES OR REPRESENTATIONS. NEITHER REMOTELOCK NOR ITS CONTRACTORS MAKE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE PROFESSIONAL SERVICES, DELIVERABLES AND/OR ANY INFORMATION OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND REMOTELOCK ON BEHALF OF ITSELF AND ITS CONTRACTORS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. REMOTELOCK DOES NOT WARRANT THAT ACCESS TO ANY DELIVERABLE WILL BE UNITERRUPTED OR ERROR FREE, OR THAT IT WILL SATISFY ANY PARTICULAR PERFORMANCE CRITERIA. REMOTELOCK EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT ANY DELIVERABLE UNLESS REMOTELOCK HAS OTHERWISE AGREED IN A WRITTEN AGREEMENT TO DO SO.
Limitation of Liability.
CUSTOMER AGREES THAT IN NO EVENT SHALL REMOTELOCK OR ITS PARENTS, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, LICENSORS OR SUPPLIERS (COLLECTIVELY, REMOTELOCK AND THE OTHER ENTITIES, THE “REMOTELOCK ENTITIES”) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND RELATING TO THIS AGREEMENT, THE PROFSSIONAL SERVICES, DELIVERABLES AND/OR ANY INFORMATION OR OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST DATA, UNAUTHORIZED ACCESS TO CUSTOMER’S PROPERTY, PROPERTY DAMAGE OR INABILITY TO USE DELIVERABLES, AND/OR ANY INFORMATION OR SERVICES, EVEN IF THE REMOTELOCK ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ADDITIONALLY, IN NO EVENT SHALL THE REMOTELOCK ENTITIES AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF THE AMOUNT PAID BY CUSTOMER TO REMOTELOCK IN CONNECTION WITH THIS AGREEMENT OR ONE HUNDRED DOLLARS (US$100.00). THE LIMITATIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE LIMITATION OF LIABILITY.
Indemnification.
Customer agrees to defend, indemnify and hold harmless the RemoteLock Entities from and against any claims, suits or other actions brought by third parties, including, without limitation, associated losses, damages, liabilities, penalties, fines, costs, and expenses (including reasonable attorneys’ fees) resulting from or relating to (i) any breach by Customer of Customer’s representations, obligations, duties, or responsibilities under this Agreement; (ii) any negligent actions or omissions on the part of Customer; or (iii) an allegation that the authorized use by RemoteLock of any Customer Content infringes or misappropriates the rights (including Intellectual Property Rights and privacy rights) of, or has caused liability, harm or damage to, any third party, or otherwise relating to the Customer Content.
Choice of Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, excluding its conflict of law provisions. The parties agree that the Uniform Computer Information Transactions Act (UCITA) is hereby excluded from application to this Agreement and the parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court in Denver, Colorado, U.S.A., and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
General.
Electronic Communications. Customer consents to receiving electronic communications from RemoteLock. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Professional Services. These electronic communications are part of Customer’s relationship with RemoteLock and Customer receives them as part of Customer’s agreement with RemoteLock. Customer agrees that any notices, agreements, disclosures or other communications that RemoteLock sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
Entire Agreement. Unless Customer has entered into a separate agreement or ordering document with RemoteLock that contains additional terms (a “Master Agreement”), this Agreement represents the entire understanding between Customer and RemoteLock relating to Customer’s purchase and/or use of the Professional Services and/or Deliverables set forth in the Order Form. For the avoidance of doubt, a Customer purchase order or similar document shall not be considered a Master Agreement and the terms of any such document shall not apply. If a Master Agreements applies to the Professional Services, the terms of the Master Agreement and this Agreement shall apply to the Professional Services unless otherwise set forth in the Master Agreement. In the event of a conflict between the Master Agreement and this Agreement, the Master Agreement shall control. For the avoidance of doubt, other than as set forth in the foregoing sentence, this Agreement prevails over any other communications between Customer, or on Customer’s behalf, and RemoteLock, including any prior version of this Agreement.
Assignment. Customer may not assign this Agreement other than to an entity acquiring substantially all of Customer’s assets, provided that such assignee is not a RemoteLock competitor, as may be determined in RemoteLock’s reasonable discretion, and such assignee agrees in writing to assume all obligations under this Agreement. Except as set forth above, Customer may not assign any of Customer’s rights or delegate any of Customer’s obligations under this Agreement to any party without the express written consent of RemoteLock. Any attempted assignment in violation of the foregoing shall be void and of no effect. Subject to the above, this Agreement shall be binding upon and inure to the benefit of Customer’s successors and assigns.
Notice. Any notice hereunder shall be in writing and shall be given by certified mail or by email. Notice to Customer shall be to any physical and/or email address that is provided by Customer (or on Customer’s behalf) to RemoteLock. Notice to RemoteLock shall be provided by email to legalnotice@remotelock.com. Notices shall be deemed given when received.
Force Majeure
Neither party shall be liable for any breach of the Agreement or for any delay or failure of performance resulting from any cause beyond such party’s reasonable control, including but not limited to the weather, civil disturbances, acts of civil or military authorities, pandemics or acts of God.
Other Provisions.
No waiver, amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced.
No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall be deemed as a waiver of any such right, power or remedy.
If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
The parties’ relationship shall be solely that of independent contractor and nothing contained in this Agreement shall be construed to make either party an agent, partner, joint venturer or representative of the other for any purpose.
