Uptime by SHzoom Terms and Conditions
Last update: December 12, 2022
These Terms and Conditions govern the access to and use of the System.
Definitions. Capitalized terms used but not defined in these Terms and Conditions have the meanings given to such terms in the Agreement or Scope of Services.
“Accident Crash and Repair Management System” means the web application, mobile application, and other products and services set forth in the applicable Scope of Services.
“Admin” means the designated representative(s) of Customer that will be given username and password credentials to access the System, as mutually agreed.
“Approved Uses” means use of the Accident Crash and Repair Management System for the Fleet as set forth in the Scope of Services.
“Intellectual Property Rights” means all intellectual property rights (whether or not registered, including all applications and the right to apply for registration) including any processes, technology, systems, reports, specifications, blueprints, patents, trademarks, service marks, trade names, domain names, designs, design rights, brands and company names, trade secrets, copyright works, URLs, drawings, discoveries, inventions, improvements, technical data, research data, formulae, computer programs, software, know- how, logos, symbols and similar industrial or intellectual property rights.
“Platform” means the web application and mobile application that are part of the Accident Crash and Repair Management System.
“Company” means SHzoom Technologies, Inc. “Customer” means the City of Westminster.
“Customer Personnel” means all Admin, employees and consultants of Customer.
Subject to Customer’s continued compliance with the terms and conditions of this Agreement, the Company hereby grants Customer a non-exclusive, non-transferable license during the Term to access, display internally, use and, where applicable, download and install onto a mobile device the Platform for the Approved Uses. The Company will furnish Customer with access to the Platform for the Approved Uses in accordance with the terms and conditions of the Agreement.
Use of the Platform.
Admin Credentials. As between the Company and Customer, Customer is responsible for ensuring the security and confidentiality of all Admin credentials. Customer will be liable for all actions taken under such Admin credentials and for Customer Personnel’s compliance with this Agreement. Customer will provide to the Company the name, contact information and other information reasonably requested by the Company to register each Admin to use the Platform or allow each Customer Personnel to provide such data directly to the Company. The Company has no obligation to verify the identity of any person who gains access to the Platform by means of Admin credentials.
Security. Customer will maintain commercially reasonable security procedures for the transmission of data by Customer to the Platform. Customer will notify the Company promptly of any suspected security breach regarding its transmissions to or from the Platform. Customer will not (a) breach or attempt to breach the security of the Platform or any network, servers, data, computers or other hardware relating to or used in connection with the Platform or belonging to or used or leased by any other customer of the Company or any third party that is hosting or interfacing with any part of the Platform; or (b) use or distribute through the Platform any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Platform or the operations or assets of any other customer of the Company or any third party.
Suspension of Access. If the Company believes there is a risk that may interfere with the proper continued provision of the Platform, it may immediately suspend, filter, block access to or take other appropriate action, including mitigation of risk, to protect the integrity of the Platform. If the Company makes a commercially reasonable determination that Customer is misusing the Platform by bypassing or attempting to bypass any security features, launching denial of service attacks, disabling security devices, using any malware or otherwise gaining or attempting to gain unauthorized access to the Platform, is reverse engineering any component of the Platform or is or may be engaged in illegal activity, then the Company may suspend or permanently terminate the misusing entity’s access to the Platform. The Company will not issue service credits in connection with actions taken under this paragraph.
Availability. The Company will use commercially reasonable efforts to make the Platform available to Customer at least 98% of the year, excluding Permitted Occurrences. “Permitted Occurrences” means: (i) scheduled downtime; (ii) delay or interruption in telecommunications provided by Customer or by third- party service providers outside the Company-controlled network; (iii) failure by Customer to comply with these Terms and Conditions; (iv) deficiencies or errors in data feeds provided by Customer or any Customer Personnel; or (v) a force majeure event as described in the force majeure paragraph below.
Customer Conduct. Customer will not,
Knowingly use the Platform in any way that may infringe any Intellectual Property Rights in the Platform;
Knowingly use, or knowingly permit anyone to use, the Platform for any unlawful or unauthorized purpose, or reproduce, copy, translate, modify, adapt, create derivative works from, distribute, transmit, transfer, republish, reverse-engineer, decompile or disclose the Platform, or otherwise attempt to discover any information used to deliver the Platform, or compile, remove or delete any portion of the Platform;
Distribute the Platform or any portion thereof through any service with a third party (e.g., joint or co- branded services) or authorize any third party to link, bookmark or point from a third-party service to the Platform or any portion thereof;
Remove, obscure or alter any copyright notice, trademark or other proprietary rights notices affixed to or contained within the Platform; or
Use the Platform in any other way that violates this Agreement.
Payment. All amounts payable from Customer to Company under this Agreement will be invoiced by the Company and paid by the Customer as set forth in this Agreement. All payments are payable in U.S. dollars, and Customer has no right of setoff.
Taxes. All amounts payable from Customer to the Company under this Agreement are intended by the parties to be net amounts and will be grossed-up by Customer to account for any and all sales, use, excise, privilege, value added, withholding or other taxes, levies or charges with respect to such amounts (including any penalties and interest imposed thereon), other than U.S. federal, state and local taxes payable by the Company on its net income. Customer will indemnify and hold harmless the Company from any damages incurred by the Company with respect to any taxes described in the preceding sentence. When grossing-up any payment due to the Company under this Agreement for taxes or other charges, the sum payable by Customer will be increased as may be necessary so that after making all required deductions and relevant tax payments (including deductions and taxes applicable to additional sums payable under this Fees Section), the Company receives an amount equal to the sum it would have received had no such deductions or relevant tax payments been imposed. Customer will submit to the Company all exemption certificates and other relevant documents evidencing exemption from any relevant taxes. Customer is solely responsible for withholding and remitting any relevant sales, use, excise, privilege, value added, withholding or other taxes, levies or charges imposed with respect to amounts payable by any Customer to Customer and will indemnify and hold harmless the Company from any damages incurred by the Company with respect to such taxes, levies or other charges.
Company Representations and Warranties; Disclaimer.
Company Limited Warranties. The Company represents, warrants and covenants to Customer that:
The Company has the full and unencumbered right, power and authority to enter into this Agreement and to otherwise carry out its obligations under this Agreement; and
The Company will use commercially reasonable efforts to make the Platform available in accordance with this Agreement and provide the Accident Crash and Repair Management System in a professional manner.
Remedies. The Company’s sole liability for breach of the foregoing warranty, and Customer’s sole and exclusive remedy, will be the correction of the Platform or refund of the applicable fees during the applicable period of breach, as reasonably determined by the Company.
Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AVAILABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY DOES NOT WARRANT THAT (A) THE OPERATION OF THE ACCIDENT CRASH AND REPAIR MANAGEMENT SYSTEM, THE PLATFORM OR ANY RELATED SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) ANY DEFECT OR MALFUNCTION IN THE ACCIDENT CRASH AND REPAIR MANAGEMENT SYSTEM, THE PLATFORM OR ANY RELATED SERVICE IS CORRECTABLE OR WILL BE CORRECTED. THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY THIRD PARTY’S SOFTWARE, SERVICE OR HARDWARE THAT THE COMPANY OR ANY OF ITS SERVICE PROVIDERS PROVIDES OR USES IN THE PERFORMANCE OR PROVISION OF THE ACCIDENT
CRASH AND REPAIR MANAGEMENT SYSTEM, THE PLATFORM OR ANY RELATED SERVICE UNDER THIS AGREEMENT.
Confidential Information. “Confidential Information” means: (a) any business or technical information of the Company or Customer, including product and services plans, designs, costs, product and services prices and names, supplier lists, customer lists, lists of prospects, finances, marketing plans, research, business opportunities, personnel, research, development, know-how or other intellectual property (including trade secrets); (b) the position of a party or an officer or employee of that party on any confidential matter; (c) third-party information disclosed in confidence; (d) the terms of this Agreement, including pricing (but not its existence); and (e) any other information the disclosure or use of which may be detrimental to the interests of a party or of any other person who has provided it to that party on a confidential basis. For clarity, the Platform constitutes Confidential Information of the Company.
Nondisclosure. Neither party will disclose Confidential Information of the other party to any person (except on a confidential basis to (a) the receiving party’s employees and agents who have a need to know such Confidential Information and who agree in writing to preserve the confidentiality thereof, or (b) to its professional advisers, auditors, bankers and insurers acting as such, provided that such persons have first been directed to keep it confidential) or use the Confidential Information of the disclosing party for any purposes other than those permitted under this Agreement. Each party will diligently preserve the confidentiality of the Confidential Information of the disclosing party and must exercise at least such care as the party employs to preserve the confidentiality of its own Confidential Information, but in any event no less than a reasonable standard of care. If either party becomes, or anticipates becoming, compelled to disclose the Confidential Information of the disclosing party under court order or other lawful process, the receiving party: (a) may disclose the Confidential Information only to the extent required to fulfill such purpose or legal requirement, (b) will notify the disclosing party of the compelled disclosure promptly and prior to disclosure, and (c) will request that the person demanding the production of the Confidential Information allow the disclosing party a reasonable period of time to seek a remedy or a protective order. The obligations set forth in these Confidentiality paragraphs will not apply to information, other than personally identifiable information, in the public domain (unless it is in the public domain due to a breach of confidentiality by any party to this Agreement).
Return of Confidential Information. Whenever requested by the disclosing party or upon the expiration or termination of this Agreement, the receiving party will immediately either return to the disclosing party or, at the disclosing party’s request, destroy all manifestations of the disclosing party’s Confidential Information and procure that its officers, employees, professional advisers, auditors, bankers and insurers do the same. Where a party requests the destruction of Confidential Information under this paragraph, the other party must provide a written confirmation of the destruction of the Confidential Information.
Ownership. Customer and the Company agree that the Company owns all proprietary rights, title and interest, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Accident Crash and Repair Management System and the Platform and any bug fixes, enhancements, error corrections, updates, upgrades or other modifications, including custom modifications, to the Platform, whether made by the Company or any third party (the “Company Property”) and nothing herein shall confer on Customer any right of ownership or interest in the Company Property.
Any and all data, documents and other records originally provided by Customer in connection with Customer’s access or use of the Platform (collectively “Customer Data”) shall be the Confidential Information of Customer and remain Customer’s exclusive property. The Company will upon Customer’s request return, delete or otherwise permanently destroy, Customer Data to which the Company has access or that is stored in the Company’s systems; provided, however, that the Company is not obligated to return, delete, or destroy any Customer Data that (i) the Company is required by applicable law to retain a copy for its records; or (ii) is stored on back-up media solely for routine data archiving or disaster recovery purposes and that is subject to destruction in due course.
Feedback. It is expressly understood, acknowledged, and agreed that Customer and/or Customer Personnel may, regardless of whether or not formally requested to do so, provide to the Company suggestions, comments, ideas, reports, and feedback with respect to the Platform (collectively, “Feedback”). Customer acknowledges and agrees that any Feedback provided to the Company, whether in questionnaires or otherwise, shall be considered the Company’s proprietary and confidential information, and Customer hereby irrevocably transfers and assigns (and agrees to cause its employee(s) and Customer Personnel to irrevocably transfer and assign) to the Company all Intellectual Property Rights embodied in or arising in connection with such Feedback, and any other rights or claims that Customer or any Customer Personnel may have with respect to any such Feedback.
Term and Termination.
Term. The term of this Agreement begins on the Effective Date and, unless terminated as permitted hereunder, continues for the length of the Term identified in the Agreement (inclusive of any renewal periods).
Termination for Cause. Upon failure of any party to comply with any material provision of this Agreement, the other party may terminate this Agreement upon: (a) thirty (30) days’ prior written notice thereof unless the material breach is cured within that 30-day period, or (b) written notice if such material breach is incapable of cure. As exceptions to the preceding sentence, the Company may, in its sole discretion, immediately terminate this Agreement if a breach by Customer relates to Customer’s conduct or unauthorized use or disclosure of Confidential Information as set forth in the Customer Conduct, Confidentiality and Ownership Paragraphs.
Effects of Termination. Upon the effective date of termination of this Agreement for any reason:
All sums owed by Customer to the Company will be immediately due and payable; and
All Customer and Customer Personnel access to the Accident Crash and Repair Management System and the Platform (or components thereof) will cease and all rights, licenses, privileges and obligations granted or received by Customer hereunder will immediately cease and terminate; provided, however, that the Company will give Customer five (5) business days from the date of termination to export any data assessments from the Platform.
Limitation of Liability.
General. Except as provided in the Indemnification paragraph below, the Company’s liability under this Agreement is limited to damages arising solely out of the gross negligence or willful misconduct of the Company, and Customer hereby releases the Company from all claims, demands or damages for other losses. Except as provided in the Indemnification by the Company paragraph below, in no event will the Company’s maximum cumulative liability for any and all losses arising out of or relating to this Agreement, the Accident Crash and Repair Management System, or the Platform, regardless of the form of action, exceed the fees paid by Customer to the Company under the Agreement in the 12 months preceding the last act or omission from which the claims, losses or damages arise. Under no circumstances will Customer or the Company be liable for special, indirect, incidental, consequential, exemplary or punitive damages, including lost profits or loss resulting from business interruption even if a party has been advised of the possibility or likelihood of such damages. The Company will not be liable for any delay, loss or damage attributable to any service, product or action of any person other than the Company and its employees. The parties acknowledge that the Company has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Agreement. The parties acknowledge that the limitation and exclusions of liability and disclaimers specified in this Agreement will survive termination of this Agreement and apply even if found to have failed of their essential purpose. No action, regardless of form, arising from or pertaining to the Accident Crash and Repair Management System or the Platform may be brought by Customer more than two years after such action has accrued.
By the Company. The Company will indemnify, defend and hold Customer harmless from and against any and all losses, damages or costs, including reasonable attorneys’ fees (collectively, “Losses”) in connection with claims, demands, suits or proceedings (collectively, “Claims”) made by a third party against Customer that any aspect of the Platform infringes any United States patent, copyright, trademark or other Intellectual Property Right of any third party under U.S. law; provided that: (a) Customer promptly informs the Company in writing of the Claim; (b) the Company is given control over the defenses and any settlement thereof; and (c) Customer cooperates in the defense at Customer’s reasonable expense. The Company, however, will not have any liability to Customer to the extent that any such infringement, or claim thereof, is based upon or arises out of (i) compliance with the design, plans or specifications furnished by or on behalf of Customer; (ii) the use of hardware or software not used, approved or supplied by the Company; (iii) Customer’s or the Customers’ use of the Platform outside the scope of this Agreement; (iv) the use of the Platform in a manner for which the same was neither designated nor contemplated; or (v) the claimed infringement of any patent in which Customer or any subsidiary or affiliate of Customer has any direct or indirect interest, by license or otherwise. If a claim, demand, suit or action alleging infringement is brought or the Company believes one may be brought, the Company will have the option at its expense and at its sole discretion to (A) modify the Platform to avoid the allegation of infringement without materially diminishing the functionality of the Platform; or (B) obtain for Customer at no cost to Customer a license to continue providing access to the Platform to Customer in accordance with this Agreement free of any liability or restriction; provided that if none of the foregoing alternatives are reasonably practical, as determined by the Company in it sole discretion, Customer will discontinue use of the affected component of the Platform and receive a prorated refund of any prepaid fees for affected component of the Platform. The foregoing provisions of this paragraph state the entire liability of the Company for or resulting from such infringement or claim thereof.
By Customer. Customer will indemnify, defend and hold the Company and its third-party suppliers and licensors (each, a “Company Indemnitee”) harmless from and against any and all Losses in connection with Claims made by a third party against a the Company Indemnitee to the extent the Claim arises from, results from or relates to: (a) any breach of this Agreement by Customer; or (b) Customer’s use of the Platform or any data, information, service, report, analysis or publication derived therefrom, in violation of this Agreement, except in the event of the Company’s gross negligence or willful misconduct; provided that (i) the Company promptly informs Customer in writing of the Claim; and (ii) Customer is given control over the defense thereof and the Company cooperates in the defense at Company’s reasonable expense. The Company will have the right to select its own counsel to participate in any such defense at the Company’s expense.
Amendments. This Agreement may be amended, supplemented or modified only by a record signed or otherwise authenticated by both parties. The Company has the right to modify the Platform at any time, provided the modifications do not materially degrade or reduce the basic functionality of the Platform.
Force Majeure. Each party will be excused from delays in performing or from its failure to perform under this Agreement (other than payment delays) to the extent that the delays or failures result from causes beyond the reasonable control of the party, including acts of civil or military authority; national emergencies; epidemics or pandemics; labor difficulties; fire, flood or other catastrophe; acts of God; terrorism; insurrection; war; riots; failure of transportation, telecommunication or power supply; or performance (or lack thereof) of third parties; provided that, in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of the delay or failure.
Assignment. Neither party may assign the Agreement or these Platform Terms and Conditions without the prior written consent of the other party; provided, however, that the Company may assign this Agreement without consent of Customer to an affiliate of the Company or in the event of a change in the majority control of its then current owners by sale of equity or assets, merger or otherwise (“Change of Control”). The Company’s consent to an assignment of this Agreement by Customer will not be unreasonably withheld, except in the event the proposed assignment is to a competitor or customer of the Company, in which case the Company may withhold its consent to assignment in its sole discretion. A Change of Control affecting Customer will be deemed to constitute an assignment by Customer of Customer’s rights, duties and obligations under this Agreement requiring the Company’s consent.
Governing Law. This Agreement and any claim arising from this Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without regard to conflicts of laws and principles. Any and all actions brought to enforce this Agreement or resolve any dispute arising out of this Agreement must be brought exclusively in the federal or state courts having jurisdiction in Allegheny County, Pennsylvania, and each party hereby consents to and agrees to submit to the exclusive personal jurisdiction and venue of such courts.
Severability. If any provision of this Agreement is invalid or unenforceable in any circumstance, its application in any other circumstances and the remaining provisions of this Agreement will not be affected thereby.
Entire Agreement. This Agreement, including all Orders, constitutes the entire agreement and understanding of the parties relating to the subject matter hereof. This Agreement supersedes all prior and contemporaneous written and oral agreements and all other communications between the Company and Customer regarding the subject matter hereof.
Interpretation and Priority of Documents. In the event of any conflict between the terms of this Agreement and the terms of any Order, the terms of this Agreement will prevail, except to the extent the Order expressly references the specific provision in this Agreement to be modified by the Order, then the terms of the Order will prevail with respect to that Order only.
Waiver of Breach. No waiver by a party of any breach of this Agreement will constitute a waiver of any other breach of the same or other provisions of this Agreement. No waiver by a party will be effective unless made in a record signed or otherwise authenticated by an authorized representative of such party.
Third-Party Beneficiaries. Except as specifically provided herein, each party intends that this Agreement will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than Customer and the Company.
Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement or in the activities contemplated by the parties will be deemed to create an agency, partnership, employment or joint- venture relationship between the parties.
Headings; Interpretation. Any headings of sections herein are for convenience only and do not affect in any way the scope, intent or meaning of the provisions to which they refer. The terms defined in this Agreement include the plural as well as the singular and the derivatives of such terms. The words “include” and “including” will not be construed as terms of limitation. Unless Business Days are specified, all references to “days” mean calendar days. The words “month” and “year” mean, respectively, calendar month and calendar year.
Equitable Relief. The parties acknowledge that the covenants and restrictions contained in this Agreement are reasonable and necessary in order to protect each party’s legitimate interests and that any violation of such covenants or restrictions would result in irreparable injuries. Each party acknowledges that, in the event of any violation of these covenants or restrictions, the other party will be entitled to temporary and permanent injunctive relief, specific performance and other equitable relief to enforce the provisions of this Agreement. The defending party will waive the right to assert the defense that any such violation can be adequately compensated in damages in an action at law. This provision with respect to injunctive relief will not, however, diminish the right of the claimant party to claim and recover damages or other remedies in addition to equitable relief.
Authority; Counterparts. Customer’s signature is by an authorized representative of Customer and constitutes Customer’s acceptance of this Agreement and its agreement to be bound thereby. This Agreement may be executed and delivered by the parties in counterparts (each of which will be considered for all purposes an original) and by facsimile or by e-mail transmission in PDF format, and when a counterpart has been executed and delivered by each of the parties, by facsimile, e-mail in PDF format or otherwise, all such counterparts and facsimiles together will constitute one agreement.
Survival. The following Sections will survive the expiration or earlier termination of this Agreement: Fees (to the extent any fees remain due and owing under this Agreement prior to the expiration or termination); Company Representations and Warranties, Disclaimer; Confidentiality; Ownership; Limitation of Liability; Indemnification; Miscellaneous.