Sales Terms
Your purchase of products ("Products") and subscription services (the “Services”) constitutes your agreement to be bound by these Sales Terms ("Sales Terms") and any additional terms we provide, including but not limited to our Website Terms of Service and Privacy Policy, which are incorporated herein. We reserve the right to change these Sales Terms at any time, so please review the Sales Terms each time prior to making a purchase. The Sales Terms apply to the purchaser of the Products (the “Client” or “You”) and (ii) your tenants and/or owners who use the Products (the “Authorized End Users”). It is your responsibility to ensure that You and the Authorized End Users comply with these Terms.
THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER FOR PRODUCTS AND/OR SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE SALES TERMS AND ON BEHALF OF YOUR AUTHORIZED END USERS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE SALES TERMS. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO PURCHASE AND USE PRODUCTS AND/OR SERVICES AND TO ENTER INTO THIS AGREEMENT. WHEN YOU PERMIT AUTHORIZED END USERS TO CREATE AND USE ACCOUNT(S), YOU ARE FULLY RESPONSIBLE FOR (I) THE ONLINE CONDUCT OF SUCH AUTHORIZED END USER; (II) CONTROLLING THE AUTHORIZED END USER’S ACCESS TO AND USE OF THE SERVICES; AND (III) THE CONSEQUENCES OF ANY MISUSE OR BREACH OF THESE SALES TERMS. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE SALES TERMS, YOU SHOULD NOT PURCHASE THE PRODUCTS AND/OR SERVICES.
1. Compatibility.
You acknowledge that you have verified the compatibility of the Products you are purchasing with other equipment in the home (e.g., ensuring that the heating, ventilation and air conditioning ("HVAC") system is compatible with the requirements described in the Documentation. You are solely responsible for determining the compatibility of the Products with other equipment in the home, and you accept that lack of compatibility is not a valid claim under the warranty provided with the Products.
2. Reservations.
Your placement of an order (the “Order”) specified on an Order Form is an only an order and does not create a contract for sale until Perceptive Things accept your offer to purchase Products and/or Services subject to these Sales Terms. At that time, Perceptive Things will process payment on the payment method you provided and deliver your Product as described in Section 4 below. Perceptive Things may obtain an additional authorization from your payment method service to confirm necessary funds are available to purchase the Products and/or Services requested.
Perceptive Things reserves the right to cancel or refuse any Order for any reason at any time prior to shipment, including after an Order has been submitted, whether or not the Order has been confirmed.
3. Payment
By providing a credit card or other payment method accepted by Perceptive Things, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order (including any applicable taxes and other charges). If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Perceptive Things account, you can do so at any time by logging into your account and editing your payment information.
4. Availability and Pricing.
All Products and/or Services are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order and to discontinue offering certain Products and/or Services without prior notice. Prices for the Products and/or Services are subject to change at any time but such changes will not affect any Order for Products and/or Services you have already placed. Perceptive Things calculates and charges sales tax in accordance with applicable laws. Perceptive Things shall invoice for all Orders as of the date specified in the Order Form. You shall pay all Fees within thirty (30) days of the invoice date. Any amounts payable by you hereunder that remain unpaid after the due date will be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by law. You agree to reimburse Perceptive Things for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
5. Title and Risk of Loss Transfer.
Products purchased from Perceptive Things are intended for end users only, and are not authorized for resale. Title and risk of loss for Products purchased from Perceptive Things passes to you at the time of delivery by Perceptive Things.
6. Shipping and Delivery.
Prices for the Products do not include shipping costs. Delivery of the Products to you by Perceptive Things, at Perceptive Things’ sole cost and expense, shall be made after receipt of an Order Form (hereinafter "Delivery Date"). Delivery of the Equipment in an undamaged condition to Customer’s Installation Site shall constitute "Delivery" to you.
You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined. We are not liable or responsible if you break any such law.
7. Installation.
There may be laws in the jurisdiction that you install a particular Product applicable to where and how to install that Product. You should check that you are in compliance with all relevant laws in your jurisdiction. IN THE EVENT YOU OR YOUR AUTHORIZED USERS INSTALL, SET UP, PLACE OR USE THE PRODUCTS AND CHANGE DEFAULTS OR CHOOSES PARTICULAR SETTINGS, SUCH SET UPS, USES AND CHOICES MAY CAUSE NON-RECOMMENDED OR UNINTENDED OPERATION OR NON-OPERATION OF PRODUCTS AND ANY CONNECTED EQUIPMENT. YOU AND YOUR AUTHORIZED USERS SHALL ASSUME ALL LIABILITY FOR ANY DAMAGES AND LOSSES CAUSED BY, OR RELATED TO, THE CHOICES YOU MAKE FOR THE PARTICULAR SETTINGS FOR THE PRODUCTS, AND SETTING OR CHANGING DEFAULTS.
8. Returns
Subject to Section 15, Perceptive Things shall accept returns of uninstalled Products within 30 days of your receipt of such Products and process any refunds once it has determined, in its sole discretion, that such Products are not damaged. Perceptive Things will not issue any credit or make any payment to you for any open units returned by you.
9. Subscription Services
Perceptive Things grants you and your Authorized End Users a nonexclusive, nontransferable, non-sublicensable, limited, license to access and use the Services in connection with the Products as set forth in a relevant Order Form. You and your Authorized End Users will not, (i) modify, copy, or otherwise reproduce the Services in whole or in part;(ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code from or structure of the software used in the Services; attempt to gain unauthorized access to the Services, or perform any penetration testing or security scans of the Services; (iii) use the Services as a competitor or use the Services for competitive analysis; (iv) provide, lease or lend the Services to any third party except as expressly authorized in this agreement; (v) remove any proprietary notices or labels displayed on the Services; modify or create a derivative work of any part of the Products and/or Services or use the Services for any unlawful purpose. You will (1) be liable for any failure of your Authorized End Users to comply with these Sales Terms; (2) use commercially reasonable efforts to prevent unauthorized access to or use of the Services through your login account or your Authorized End Users’ login accounts; and (3) use the Services only in accordance with the Sales Terms and applicable laws and government regulations.
The Services may include certain remote viewing, access and control features and functionality. The ability for those features and functionality to work with the Products and Services will be dependent upon a variety of factors outside the control of Perceptive Things, including, but not limited to, faulty equipment, faulty transmission systems, limitations inherent in wireless services, power outages, and other factors. Perceptive Things shall attempt to ensure that such features and functionality interoperate with the Products and Services, but shall not be liable in the event they fail to do so. Access to the Services via wireless device is dependent upon the capabilities of your wireless device and network. Perceptive Things shall not be liable for issues arising from your access, or your Authorized End Users’ access, to the Services via wireless device. Your access, or your Authorized End Users’ access, to the Services from your wireless device is subject to any agreement with your wireless carrier.
Perceptive Things has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data in accordance with industry standards.
10. Limitation of Software/Connectivity
You are solely responsible for providing, when applicable, Internet connectivity and electric power needed to use the Products and/or Services. Perceptive Things has no responsibility for interruptions of electric power or Internet connectivity.
You and your Authorized End Users understand that: (i) the Products communicate over "Long Range Wide Area Network" (“LoRaWAN”), VoIP, DSL, broadband, cellular, radio, and/or Internet, (ii) transmission systems are maintained and serviced solely by the applicable transmission system provider;(iii) these transmission systems may be affected by faulty or failed equipment, weather conditions, power outages, upgrade or maintenance work, or other interruptions in service. Any such conditions or changes made to these transmission systems, or inherent limitations in wireless services, may disrupt communications to or from the Products, or even certain functionality of the Products. Without notice from you or your Authorized End Users, Perceptive Things may not be aware of the existence of any such problem. Perceptive Things is not responsible or liable for any damages allegedly caused by the failure or delay of the Products and/or Services. Your access, or your Authorized End Users’ access, to the Services from its wireless device is subject to its agreement with its wireless carrier.
You may choose to provide internet access service to Perceptive Things Products at designated locations (“Client-Supplied Internet Access”). You and your Authorized Users agree that any disruptions to Client-Supplied Internet Access is beyond the control of Perceptive Things, and you will be solely responsible for any loss of connectivity and/or data for any and all Perceptive Things devices. Perceptive Things shall not be responsible to you, your Authorized Users, or any third parties whatsoever for any loss of Customer Data.
11. Warranties; Disclaimers.
THE PRODUCTS AND/OR SERVICES ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
The Products and/or Services are intended to be accessed and used for non-time-critical information and control of Products. The Products and/or Services are not intended to be reliable or available 100% of the time. The Products and/or Services may be subject to sporadic interruptions and failures for a variety of reasons beyond Perceptive Things’ control, including, without limitation, wired and wireless network intermittency, uptime, mobile notifications and operators, installation by you, or location of Products. You and your Authorized End Users acknowledge these limitations and agrees that Perceptive Things is not responsible or liable for any damages allegedly caused by the failure or delay of the Products and/or Services.
You and your Authorized End Users acknowledge and agree that the Products and Services, whether standing alone or when interfaced with any third-party products or services, are not certified for emergency response. Perceptive Things makes no warranty or representation that use of the Products or Services with any third-party product or service will affect or increase any level of safety. YOU AND YOUR AUTHORIZED END USERS AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON PRODUCTS AND/OR SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY.
You and your Authorized End Users acknowledge that the Products and/or Services, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available.
Perceptive Things shall not be held liable if you, or your Authorized End Users (i)modify, substitute, move, or otherwise change any of the Products and/or Services without the express authorization of Perceptive Things; (ii) for any and all defects and/or modifications of the Product and any consequences deriving from your misuse of the Products and/or Services; (ii) for any inadequate intervention on the Products and/or Services from a third party; (iv) for the use of the Products and/or Services with a component or a third party system that is not compatible or not certified by Perceptive Things (including a defect caused by your malfunctioning Customer Equipment); and/or (v) where the Product has been subjected to abnormal physical or electrical stress, misuse, misapplication, negligence or accident.
The Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You acknowledge and agree that you will not be entitled to any refund or rebate for such suspensions. Perceptive Things does not offer any specific uptime guarantee for the Products and/or Services.
You install any Products at your own discretion and risk. You will be solely responsible for (and Perceptive Things and its affiliates disclaim) any and all loss, liability or damages resulting from your use or installation of a Product, including damage or loss to HVAC systems, plumbing, homes, other peripherals connected to the Product, computers, mobile devices, and all other items and pets in the home. Unless explicitly promising a "guarantee," Perceptive Things does not guarantee or promise any specific benefit from the use of a Product or any feature of it.
Perceptive Things gives no warranty regarding the life of the batteries used in a Product. Actual battery life may vary depending on a number of factors, including the configuration and usage of a Product.
Perceptive Things shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. EXCEPT AS SET FORTH HEREIN,PERCEPTIVE THINGS DOES NOT WARRANT THAT THE PRODUCTS AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. PERCEPTIVE THINGS DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH, OR IN CONNECTION WITH, THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY PRODUCTS AND SERVICES CONNECTED THROUGH THE PRODUCTS AND/OR SERVICES), OR ANY HYPERLINKED WEBSITE OR SERVICE, AND PERCEPTIVE THINGS WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES. IN ADDITION TO THE FOREGOING, PERCEPTIVE THINGS MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE PRODUCTS AND/OR SERVICES, AND PERCEPTIVE THINGS WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES.
IN THE EVENT YOU INSTALL, SETS UP, PLACE OR USE THE PRODUCTS AND/OR SERVICES AND CHANGE DEFAULTS OR CHOOSE PARTICULAR SETTINGS, SUCH SET UPS, USES AND CHOICES MAY CAUSE NON-RECOMMENDED OR UNINTENDED OPERATION OR NON-OPERATION OF PRODUCTS AND/OR SERVICES. YOU SHALL ASSUME ALL LIABILITY FOR ANY DAMAGES AND LOSSES CAUSED BY, OR RELATED TO, THE CHOICES YOU MAKE FOR THE PARTICULAR SETTINGS FOR THE PRODUCTS AND/OR SERVICES, AND SETTING OR CHANGING DEFAULTS. IN ADDITION TO THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT SOME OF THE PRODUCTS ARE NOTIFICATION, SIGNALLING AND DETECTION PRODUCTS. THOSE PRODUCTS AND SERVICES DO NOT ELIMINATE OCCURRENCES OF EVENTS, SUCH AS FIRES, FLOODS, BURGLARIES, ROBBERIES, AND MEDICAL ISSUES. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THOSE PRODUCTS MAY NOT AVERT OR MINIMIZE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES.
12. Limitation of Liability; Indemnity.
Nothing in these Sales Terms and in particular within this "Limitation of Liability" section shall attempt to exclude or limit liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) PERCEPTIVE THINGS OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS AND/OR SERVICES, EVEN IF PERCEPTIVE THINGS OR SUCH AFFILIATE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) PERCEPTIVE THINGS’S AND ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND/OR SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO PERCEPTIVE THINGS OR PERCEPTIVE THINGS’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR SIX (6)MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. PERCEPTIVE THINGS AND ITS AFFILIATES DISCLAIM ALL LIABILITY OF ANY KIND OF PERCEPTIVE THINGS’S AND ITS AFFILIATES’ LICENSORS AND SUPPLIERS.
You and your Authorized End Users agree to defend, indemnify, and hold harmless, Perceptive Things, its third party licensors, and its affiliates, and each of its and their respective officers, directors, members, managers, employees, sublicensees, contractors and agents (collectively, the “Perceptive Things Indemnitees”) from and against Third Party Claims and will pay any losses associated with such Third Party Claims, in each case to the extent arising from or relating to: (a) your use or your Authorized End Users’ use of any Product and/or Services (or part thereof); (b) any violation of any law or regulation arising from or in connection with your use or your Authorized End Users’ use of the Product and/or Services; or (c) your breach of any provision of these Sales Terms arising out of or in connection with your use or your Authorized End Users’ use of the Product and/or Services.
13. Data Protection.
By placing an order for Products and/or Services, you agree and understand that Perceptive Things may store, share, process and use Sensor Data, and any other data collected from your Order Form or phone/fax/email order for the purposes of processing the order. Perceptive Things may also share such data globally within the Perceptive Things group of companies All Perceptive Things companies will protect your information in accordance with the Perceptive Things Privacy Policy. Perceptive Things works with other companies that help Perceptive Things provide Products to you, such as freight carriers and credit card processing companies, and Perceptive Things may have to share certain information with these companies for this purpose.
14. Dispute Resolution and Arbitration PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Arbitration. Perceptive Things and you agree to arbitrate all disputes and claims that arise from or relating to these Sales Terms or your use of the Products and/or Services in any way, except for claims arising from bodily injury. This arbitration agreement does not preclude either of us from bringing an individualized action in small claims court. It also does not preclude either of us from seeking an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction. Nor does this arbitration agreement bar you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. In addition, you or Perceptive Things may seek injunctive or other equitable relief to protect your or its trade secrets and intellectual property rights or to prevent loss or damage to its Products and/or Services in any court with competent jurisdiction.
You agree that, by entering into this Sales Terms, we are each waiving the right to a trial by jury or to participate in a class or representative action. These Sales Terms are evidence of this transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
(b) Notice of disputes. If either of us intends to seek arbitration of a dispute, that party must provide the other with notice in writing. The notice to Perceptive Things should be sent to: Perceptive Things 105 West 86th St., New York, NY, USA.
Perceptive Things will send notice to you at the e‑mail and/or mailing addresses associated with your account. Your notice to Perceptive Things must (a) provide your name, mailing address, and email address; (b) describe the dispute; and (c) state the relief you are requesting. If we are unable to reach an agreement to resolve the dispute within 60 days after the notice is received, you or we may commence arbitration.
(c) Arbitration procedures. The arbitration will be governed by the Consumer Arbitration Rules ("AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1‑800‑778‑7879. If the AAA is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. Unless you and we agree otherwise, any arbitration hearings will take place in the county (or parish) where you are receiving Perceptive Things Products. If the value of your claim is $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of this arbitration provision or the arbitrability of disputes are for the court to decide. The arbitrator may consider but is not bound by rulings in other arbitrations between Perceptive Things and Perceptive Things users. The arbitrator can award the same individualized damages and relief that a court can award. Judgment on the award may be entered by any court having jurisdiction.
(d) Costs of arbitration. The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at www.adr.org or by calling the AAA at 1‑800‑778‑7879). Perceptive Things will pay all AAA filing, administrative, and arbitrator fees for any arbitration that Perceptive Things commences. If you provided Perceptive Things with 60 days’ notice of your intent to arbitrate before commencing arbitration and the value of your claim is $75,000 or less, Perceptive Things will pay your share of any such AAA fees. If the value of your claim exceeds $75,000, the allocation of AAA fees will be governed by the AAA Rules (unless the law of your state requires Perceptive Things to pay all such fees). If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA fees shall be governed by the AAA Rules. In such cases, the arbitrator may direct you to reimburse Perceptive Things for amounts that Perceptive Things paid on your behalf.
(e) No class arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND PERCEPTIVE THINGS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
(f) 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this section, you must notify Perceptive Things in writing within 30 days of the date that you first accept these Terms & Conditions (unless a longer period is required by applicable law). Your written notification must be mailed to Perceptive Things at the following address: Perceptive Things 105 West 86th St., New York, NY. Subject to section 14(g) below, if you do not notify Perceptive Things in accordance with this section 14(f), you agree to be bound by the arbitration and class-action waiver provisions of these Sales Terms, including such provisions in any Sales Terms revised after the date of your first acceptance. Such notification must include: (a) your name, (b) the email address associated with your Perceptive Things account, (c) your mailing address, and (d) a statement that you do not wish to resolve disputes with Perceptive Things through arbitration. This notification affects these Sales Terms only; if you previously entered into other arbitration agreements with Perceptive Things or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Sales Terms shall not affect the other arbitration agreements between you and Perceptive Things.
(g) Future changes to arbitration provision. If Perceptive Things makes any changes to the Dispute Resolutions and Arbitration section of these Terms & Conditions (other than a change to the address at which Perceptive Things will receive notices of dispute, opt-out notices, or rejections of future changes to the Dispute Resolution and Arbitration section), you may reject any such change by sending us written notice within 30 days of the change to Perceptive Things Legal Department, 105 West 86th St., Suite 225, New York, NY 10024, USA. It is not necessary to send us a rejection of a future change to the Dispute Resolution and Arbitration section of these Terms & Conditions if you had properly opted out of the arbitration and class-action waiver provisions in this section within the first 30 days after you first accepted these Terms & Conditions. If you have not properly opted out of the arbitration and class-action waiver provisions in this section, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject.
15. Support Services
Supports Services shall be provided as set forth in an Order Form. Perceptive Things shall, upon written request, provide you either new or reconditioned replacement sensors, and shipped or replaced in accordance with the terms of the level of service purchased. Certain Products may include whole sensors and/or spare parts as part of the initial Product shipment (“Critical Spare Parts”). Critical Spare Parts shall be utilized only upon authorization by Perceptive Things after diagnosis by Perceptive Things of the reported service issue. You shall be responsible to replace used Critical Spare Parts, and arrange for acceptance of replacement parts and make them available at the time of on-site service. Delays in acceptance and/or failure to maintain stock of Critical Spare Parts may result in additional cost and/or delay in delivery of onsite service. The Product or parts of Product that are removed or replaced, either by you or Perceptive Things will become property of Perceptive Things and must be return shipped to Perceptive Things within 10 business days. IN ORDER TO HAVE ACCESS TO WHOLE SENSOR OR SPARE PARTS, INCLUDING CRITICAL SPARE PARTS, PRODUCT MUST BE COVERED UNDER WARRANTY OR A THEN-CURRENT SUPPORT CONTRACT.
Support Services do not include: (a) replacement of parts and/or services to repair damage or errors resulting from accident, neglect, or misuse on the part of a party other than Perceptive Things, or modification of Product and/or Services not approved, authorized or directed by Perceptive Things; (b) replacement of parts and/or services to repair damage resulting from any act of God, including but not limited to storms, fires, floods, and earthquakes; (c) replacement of parts and/or services to repair damage caused by failure to provide or maintain adequate or appropriate electrical power, air conditioning, humidity controls, electrical surge protection, or other facilities or environmental conditions unless such failure is caused by the negligent act or omission of Perceptive Things; (d) replacement or reconditioning of Product and/or Services which Perceptive Things reasonably believes cannot be reliably maintained or repaired because of excessive wear or deterioration not resulting from any negligent act or omission on the part of Perceptive Things; (e) services on Product and/or Services which you have moved or relocated without notifying Perceptive Things; (f) services requested after unauthorized resale, transfer, or other assignment (actual or constructive) of Product and/or Services; (g) services required as a result of use of Product and/or Services beyond its rated capacity, not in accordance with manufacturer published specifications, or not in compliance with the Agreement or Documentation. THE OCCURRENCE OF EVENTS (A)-(G) ABOVE SHALL RENDER THE WARRANTY VOID AND/OR SUBJECT A SUPPORT CONTRACT TO TERMINATION.
16. Notifications.
Perceptive Things may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Perceptive Things account, hard copy, or posting of such notice on the Perceptive Things website.
17. Force Majeure.
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond our reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
18. Intellectual Property Rights.
Perceptive Things, its suppliers and its licensors are the owners of all right, title, and interest in and to the Products, Services, Equipment, Equipment Software, Sensor Data, all improvements, enhancements or modifications thereto, and all intellectual property rights therein, and you shall not obtain or claim any ownership interest in any intellectual property in such Products, Services, Equipment or Equipment Software (“Perceptive Things IP”). All rights to the Products and/or Services not expressly granted herein or an Order Form are reserved by Perceptive Things. You shall own all right, title and interest in and to the Customer Data except for Sensor Data, which shall be owned by Perceptive Things.
Notwithstanding anything to the contrary, Perceptive Things shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Perceptive Things will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Perceptive Things’ offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein
19. Severability.
If any part of these Sales Terms becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed not to form part of the contract between us. The legality, validity or enforceability of the remainder of these Sales Terms will remain in full force and effect.
20. Survivability.
The obligations in Sections 9 through 18 will survive any expiration or termination of these Sales Terms.
21. Waiver.
Failure or delay by us to enforce any these Sales Terms will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.
22. Governing Law and Jurisdiction.
These Sales Terms are governed by the laws of the State of New York without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for New York County, New York for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.
23. Definitions
“Customer Data” includes non-public data provided by you or your Authorized End Users to Perceptive Things to enable the provision of the Services.
“Customer Equipment” means any equipment and ancillary services that you provide and/or use to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.
“Documentation” means the user guides and manuals for installation and use of a Product that Perceptive Things makes generally available.
“Equipment” means the third-party hardware described in a relevant Order Form, which you purchase pursuant to these Sales Terms.
“Equipment Software” shall mean third-party software embedded in the Equipment licensed to Perceptive Things from the third-party Equipment manufacturer.
“Perceptive Things Platform” shall mean proprietary web-based software provided to you by Perceptive Things or a Perceptive Things authorized provider on a pay-for-use or subscription basis.
“Order Form” shall mean the order form which sets forth the purchasing of Products and/or Services by you.
“Product” shall mean as Perceptive Things branded Equipment.
“Sensor Data” is data received from sensor devices configured to operate with the Services.
“Services” shall include, without limitation, the Software and Support Services.
“Site” shall mean the website perceptivethings.com, ptcloud.io, mobile application, and/or online on-line dashboard made available at the Site via login for viewing and analyzing Sensor Data (as defined herein).
“Software” shall mean Equipment Software and Perceptive Things Platform
“Support Services” shall have the meaning described in the Sales Terms.