envoyatHome, Inc. SERVICES AGREEMENT
Last Modified: [2020-01-31]
This Services Agreement (this “Agreement”) is by and between envoyatHome, Inc., a Delaware corporation (“Company“), and the customer whose name is indicated on the registration form (“Customer“), and is effective as of the date on which the Customer clicks the “Accept” button on the registration form (the “Effective Date“). By clicking the “Accept” button on the registration form, Customer agrees to accept and comply with the terms and conditions set forth in this Agreement.
WHEREAS, Company provides access and subscription services to an on-demand and online software product available through Company’s website (the “Web Application Services”).
WHEREAS, in connection with the Web Application Services, Company sells third-party smart home hardware devices and sensors through Company’s website (the “Smart Home Devices”) in order for Company’s customers to enable and use the Web Application Services.
WHEREAS, in connection with the Web Application Services, Company provides configuration and installation services for smart home hardware devices or sensors (the “Installation Services”) (collectively, together with the Web Application Services, the “Services”).
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Customer agrees as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Company shall provide to Customer the Services that Customer purchases from Company. In connection with providing the Services, Company may from time to time in its discretion engage third parties to perform the Services (each, a “Subcontractor”).
2. Subscription Fee. In connection with the Web Application Services, Customer shall pay Company on a monthly basis a subscription fee set forth in the registration form in accordance with Sections 2 and 5 (the “Subscription Fee”). The Subscription Fee will become due each month on the calendar day on which Customer’s subscription to the Web Application Services commenced, and will continue to become due until this Agreement terminates. In some cases, the payment date for the Subscription Fee may change, for example, if Customer commenced its subscription to the Web Application Services on a day not contained in a given month. Company may modify the Subscription Fee by providing written notice to Customer at least 30 days prior to the commencement of such fee modification.
3. Smart Home Devices. Company is a reseller of Smart Home Devices that are manufactured and distributed by third-party vendors. Customer shall initiate all purchase orders for any Smart Home Devices through the registration form on Company’s website or any other purchase method agreed to by Company. Company has the right, in its sole discretion, to accept or reject any purchase order for Smart Home Devices. In connection with the purchase of Smart Home Devices, Customer shall pay Company the purchase price set forth in the registration form or any applicable purchase order in accordance with Section 5. Shipment and delivery terms for the sale and purchase of Smart Home Devices shall be set forth in the registration form or any applicable purchase order. Except for the representations and warranties in Section 10, Company makes no representation or warranties with respect to any Smart Home Devices.
4. Configuration and Installation. In connection with the Installation Services, Customer shall pay Company a configuration and installation fee set forth in the registration form in accordance with Section 5. After Company receives full payment for the Installation Services, Company will contact Customer to initiate and schedule the Installation Services.
5.1. Payment; Late Fees. Subject to the terms and conditions set forth in the Agreement, Customer shall pay all amounts due in full on or prior to the due date and all payments hereunder shall be made in U.S. dollars by credit card or any other payment method agreed to by Company. Customer shall provide to Company Customer’s credit card information through the registration form (“Payment Method”). Customer shall ensure that the Payment Method is current and up-to-date. In connection with the Services, Customer authorizes Company to charge the Payment Method, or any update thereof, on a monthly basis for payment of the Subscription Fee or any other payment Customer owes Company. If Customer fails to make a payment when due, Customer shall be liable to Company for a late payment fee on any past due payments equal to 5% of the payment amount then due. Company may suspend or terminate the Services if failure to pay past due amounts continue for 15 calendar days following any written notice thereof, without incurring any liability for such termination of the Services.
5.2. Discount. In connection with the Services and the Smart Home Devices, Customer may be entitled to a discount (the “Discount”). The Discount shall be set forth in the registration form or any applicable purchase order. The Discount shall not be applicable if Customer does not satisfy the terms and conditions of the Discount set forth in the registration form or any applicable purchase order. If the Discount is not applicable, Customer shall be liable to Company for the Discount for each billing period in which the Discount applied and such payment shall become immediately due.
6. Term and Termination. The term of this Agreement shall commence on the Effective Date and will continue in effect until terminated in accordance with this Section 6. Either party may terminate this Agreement without cause, effective upon 30 days prior written notice provided to the other party. Either party may terminate this Agreement for cause, effective immediately upon written notice provided to the other party, if the other party materially breaches this Agreement and such breach (i) is incapable of cure or (ii) is capable of cure and remains uncured for 15 days. Upon any termination of this Agreement, (a) all intellectual property rights granted hereunder will immediately terminate; and (b) if Company terminates pursuant to a material breach of this Agreement, Company is entitled to all fees that would have become payable had there been no such material breach by Customer, and such payment shall become immediately due. Company may suspend or terminate all or part of the Services, without incurring any liability if (a) Company receives a judicial or other government notice or order that requires Company to do so; (b) Customer fails to comply with the terms of this Agreement; (c) Customer is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Services; or (e) this Agreement terminates. The provisions set forth in Sections 5, 6, 9, 10, 11, 12, 13, 14, and 16 shall survive any termination or expiration of this Agreement.
7. Customer Obligations. In connection with the Services, Customer shall cooperate with Company and provide access to Customer’s premises and equipment as required by Company, including obtaining any consents. Company is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of Customer’s obligations under this Agreement (each, a “Customer Failure“). Customer shall employ all physical, administrative, and other safeguards necessary to protect against any unauthorized access to or use of the Services.
8.1. Service Levels. During the term of this Agreement, Company shall make the Services available to Customer for use and access at least 99% of the time as measured over the course of each calendar month (each such month, a “Service Period”), excluding any unavailability of the Services due to the Exceptions (as defined below) (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Exceptions” to the Availability Requirement includes any (a) act or omission by Customer or access to, or use of, the Services by Customer that does not strictly comply with this Agreement; (b) Customer Failure; (c) failure of Customer’s internet connectivity; (d) Force Majeure Event (as defined below); (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Company pursuant to this Agreement; (f) scheduled downtime; or (g) disabling, suspension, or termination of the Services pursuant to Section 6.
8.2. Service Level Failures and Remedies. If a Service Level Failure occurs, Company shall issue credit to Customer in the amount of 5% of the Subscription Fee due for the Service Period in which the Service Level Failure occurred (each, a “Service Credit“). Any Service Credits payable to Customer under this Agreement shall be issued and applied to Customer’s bill in the calendar month following the Service Period in which the Service Level Failure occurred. Company is not obligated to issue any Service Credits if Customer does not (i) report the Service Level Failure to Company immediately or when Customer becomes aware of such Service Level Failure; and (ii) request such Service Credit in writing within 30 days of such Service Level Failure.
8.3. Scheduled Downtime. Company shall notify Customer at least 24 hours in advance of all scheduled downtime or outages of the Services. If Company does not satisfy the foregoing requirement, Company shall issue credit to Customer in the amount of 5% of the Subscription Fee due for the Service Period in which the downtime or outage occurred (each, an “Outage Credit”). Any Outage Credits payable to Customer under this Agreement shall be issued and applied to Customer’s bill in the calendar month following the Service Period in which the downtime or outage occurred. Company is not obligated to issue any Outage Credits if Customer does not (i) report the downtime or outage to Company immediately or when Customer becomes aware of such downtime or outage; and (ii) request such Outage Credit in writing within 30 days of such downtime or outage.
8.4. Limitation of Service Credit and Outage Credit. In no event will the sum of the Service Credit and Outage Credit for any Service Period exceed the total Subscription Fee that would be payable for that Service Period if no Service Level Failure or downtime or outage had occurred. This Section 8 sets forth Company’s sole obligation and liability and Customer’s sole remedy for any Service Level Failures or downtime or outage of the Services.
9.1. Web Application License. In connection with providing the Web Application Services, Company hereby grants to Customer, and its authorized agents, a non-exclusive, non-transferable right to access and use the Web Application Services subject to the terms and conditions of this Agreement.
9.2. Materials. All right, title, and interest in and to the Services, any documentation, manuals, instructions, and all other information provided to Customer by Company (“Company Materials”), including all intellectual property rights therein, are and will remain with Company and, with respect to any third-party materials, the applicable third-party service provider owns all right, title, and interest, including all intellectual property rights, in and to any third-party materials. Customer has no right, license, or authorization with respect to any of the Customer Materials except as expressly set forth in this Agreement or the applicable third-party license. All third-party materials and devices shall be subject to any applicable terms and licenses between the owner of such third-party materials or devices and Customer. All other rights in and to the Company Materials are expressly reserved by Company, or, with respect to any third-party materials, expressly reserved by such third-party service provider.
9.3. Resultant Data. In connection with the Services, Customer hereby unconditionally and irrevocably grants to Company an assignment of all right, title, and interest in and to the Resultant Data, including all intellectual property rights thereto. “Resultant Data” means any data and information related to Customer’s use of the Services that is used by Company in an aggregate and anonymized manner to compile statistical and performance information in connection with this Agreement.
9.4. Customer Data; Consent to Use Customer Data. As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted in this Section 9. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Company and its Subcontractors to enforce this Agreement and exercise Company’s and its Subcontractors’ rights and to perform Company’s and its Subcontractors’ obligations hereunder. “Customer Data” means any information and data, other than Resultant Data, that is collected, downloaded, or otherwise received from Customer by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.
9.5. Restrictions. Customer shall not (a) copy, modify, or create derivative works or improvements of the Company Materials and third-party materials; (b) reverse engineer, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Company Materials and third-party materials, in whole or in part; or (c) otherwise use the Company Materials beyond the scope of this Agreement.
10.1. Mutual Representation and Warranties. Each party represents, warrants, and covenants to the other party that (a) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (b) the execution of this Agreement by its representative whose acceptance of this Agreement has been duly authorized; and (c) it will maintain its systems, documentation and all other specifications so that they continue to be current, complete, accurate, and free from any harmful software or hardware that is intended to: (i) permit unauthorized access, destroy, disrupt or otherwise harm in any manner the Services, (ii) harm the integrity, security, and system of the Services, and (iii) prevent other parties from accessing the Services.
10.2. Additional Company Representations and Warranties. Company represents, warrants, and covenants to Customer that (a) Company will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet Company’s obligations hereunder; (b) neither Company’s grant of rights or licenses hereunder nor Company’s performance of any Services or other obligations hereunder does not conflict with or violate any applicable law; and (c) all Services and other materials provided by Company under this Agreement will not infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
10.3. Additional Customer Representations and Warranties. Customer represents, warrants, and covenants to Company that (a) if Customer is an individual, Customer is 18 years of age or older; (b) if Customer is an entity, Customer is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of Customer’s incorporation or other organization; and (c) if Customer is not the Care Receiver, Customer is authorized, and has full right and power from the Care Receiver, to grant permission and access to Company (i) to install the Smart Home Devices in the Care Receiver’s home, and (ii) to monitor the Care Receiver through the Services, including, but not limited to, Company keeping track of the Care Receiver’s activities and movements or notifying the Care Receiver’s caregiving team when an activity pattern is broken. “Care Receiver” means any person that receives care through the use of the Services, including, but not limited to, the person whose name is indicated on the registration form as the “Care Receiver.”
10.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 10.1 AND 10.2, COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, STATUTORY, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF. AS BETWEEN CUSTOMER AND COMPANY ALL THIRD-PARTY DEVICES AND MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY DEVICES AND MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY DEVICES AND MATERIALS.
11. Assumption of Risk. Customer is aware and understands that using the Services to provide and facilitate caregiving services, to monitor or track a Care Receiver’s activity, or for any other purpose may result in harm or injury to the Care Receiver, Customer, or any other third party. Customer assumes all risk and liability for the results obtained by the use of the Services, whether in terms of operating costs, general effectiveness, success or failure, and regardless of any oral or written statements made by Company, by way of technical advice or otherwise. Without limiting the foregoing, Customer understands and acknowledges that (a) Company is not a personal emergency service or life alert system, and Customer is responsible for the Care Receiver’s health and safety; (b) Company is not an expert in health care or caregiving services, and nothing under this Agreement, whether express or implied, shall be construed as medical advice; (c) Customer is responsible to determine and keep up-to-date the Care Receiver’s activity plan, including, but not limited to, the activity plan’s setup, configuration, completeness, or accuracy, and Company is not responsible for any improperly configured activity plans; (d) Customer is responsible to interpret and act in any way Customer deems appropriate when a notification or alert is delivered to Customer through the use of the Services, including, but not limited to, Customer, or any other third party, contacting the police department, fire department, or emergency medical responders; (e) Company is not responsible for Customer’s failure to respond to a notification or alert delivered to Customer through the use of the Services, including, but not limited to, Customer, or any other third party, failing to disable the “Do Not Disturb” feature on such party’s mobile device; (f) other than the remedies available under Section 8, Company is not responsible or liable for any injuries, damages, or death that result from a Service Level Failure or scheduled downtime or outages of the Services; and (g) Company is not responsible for any injuries, damages, or death that result from improper use of the Services, including, but not limited to, Customer, or any other third party, obstructing, moving, re-configuring, modifying, or otherwise tampering with the Smart Home Devices, failing to replace or monitor the batteries of the Smart Home Devices, or failing to enable the Smart Home Devices.
12. SmartThings. If Customer purchases any Smart Building Technology in accordance with the terms of this Agreement, Customer agrees to defend, indemnify and hold harmless Company and SmartThings, Inc. (“SmartThings”) from any losses, costs, or damages arising from third-party claims related to the operation of Smart Building Technology devices installed within Customer’s building. For purposes of completing work orders, conducting inspections, or trouble shooting of the devices within the building, Customer accepts that SmartThings can audit, control and/or monitor the door lock, thermostat and pendant light switch. Company and SmartThings agree to keep any confidential information relating to a resident private. Information pertaining to the devices (door lock, thermostat, and pendant light switch) within the building may be provided or shared to analyze for device audit reporting. Customer acknowledges that any monthly Smart Building Technology fee is not payment for the SmartThings mobile app which is free. Customer and Company agree that SmartThings shall be a third-party beneficiary for the purposes stated hereunder. “Smart Building Technology” means any sensors, hubs, outlets, buttons, or any other hardware devices or smart home technology provided or manufactured by or purchased from SmartThings.
13. Indemnification. Customer shall indemnify, defend, and hold harmless Company from and against any losses incurred by Company resulting from any claim, demand, suit, or proceeding (an “Action”) by a third party that arise out of or result from (a) Customer Data, including any processing of Customer Data by or on behalf of Company in accordance with this Agreement; (b) any other materials or information provided by or on behalf of Customer, including Company’s compliance with any specifications or directions provided by or on behalf of Customer; (c) allegations of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) allegations of negligent, gross negligent, or more culpable acts or omissions by Customer, or any third party acting on behalf of Customer in connection with this Agreement.
14. Limitations of Liability. EXCEPT FOR ANY LIABILITY OCCURRING UNDER SECTIONS 5, 9.1, 9.2, AND 9.5, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. IN NO EVENT WILL COMPANY BE LIABLE UNDER THIS AGREEMENT, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGE, OR LOSS (OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDIT OR OUTAGE CREDIT UNDER THIS AGREEMENT) EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Changes to Services. Company reserves the right in its sole discretion, to make any changes to the Services that Company deems necessary or useful to (a) maintain or enhance: (i) the quality or delivery of the Services to Customer; (ii) the competitive strength of or market for Company’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either party may request in writing changes to the Services. No requested changes will be effective unless such changes are agreed to in writing and signed by both parties.
16.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
16.2. Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement shall be sent to the address or email address as determined by the parties.
16.4. Assignment. Customer shall not assign any of its rights or delegate any of its obligations or performance under this Agreement without Company’s prior written consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
16.5. Modification; Waiver. Without limiting Sections 2 and 15, Company may, in its sole discretion, modify or update this Agreement at any time. Company shall provide notice to Customer if Company makes any such modifications or updates to this Agreement. Any modification or update to this Agreement will become effective automatically 30 days after notice of such modification or update is provided to Customer. If Customer does not wish to accept the any such modifications or updates to this Agreement, Customer must stop using the Services prior to the effectiveness of any such modification of update. No waiver by any party of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of a party to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
16.6. Severability. If any provision of this Agreement shall be determined to be invalid or inoperative, the validity and effect of the other provisions herein shall not be affected thereby, provided that no such severability shall be effective if it causes a material detriment to any party.
16.7. Governing Law; Venue. This Agreement is governed by and construed in accordance with the laws of the state of New Jersey, without regard to its principles of conflicts of law. Venue for any and all disputes arising out of this Agreement shall be in New Jersey.
16.8. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
16.9. Equitable Relief. Each party acknowledges that its breach of this Agreement may cause irreparable damage to the other party for which monetary damages would not be an adequate remedy and agrees that the other party will be entitled to seek equitable relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction. The rights and remedies provided to each party herein are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
16.10. Force Majeure. Except for obligations under Section 2, neither party will be liable for any failure or delay in its performance due to any cause beyond its reasonable control, including act of war, acts of God, embargo, riot, sabotage, failure of suppliers, labor shortage or dispute, or governmental act (each, a “Force Majeure Event”).
16.11. Attorneys’ Fees. In the event that any legal action is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.