Enterprise Terms of Service

Last Updated November 16, 2021

Please read the following Terms of Service (“TOS”), which, together with the Order Form you fill out upon ordering our products and services, any SOW entered into between us, and the other documents linked or incorporated herein, serve as the Agreement governing our provision to you, and your use of, Losant Products and Other Products. By executing an Order Form, you agree to the terms of this Agreement.

  1. DEFINITIONS
  1. “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Losant Products.
  2. “Agreement” means these TOS, the Order Form, any SOW, and any other documents linked or incorporated herein.
  3. “Authorized User” means each the individuals granted access to use the Losant Products by you.
  4. “Customer” or “you” means the customer accepting this Agreement.
  5. “Customer Data” means all data that is provided to us by, or on behalf of, you through your use of the Losant Products, any data that third parties submit to you through the Losant Products, and any data collected by Devices.
  6. “Devices” has the meaning as set forth in Section 2.1.
  7. “Documentation” means the manuals and other documentation that we have created for the Losant Products, including those available at https://docs.losant.com/getting-started/what-is-losant/.
  8. “Deliverable” means electronic or tangible work product commissioned by and developed specifically for you for the provision of Other Products to you, that we are required to deliver to you pursuant to the Order Form or any SOW entered into under this Agreement. Notwithstanding the foregoing, Deliverables shall not include any subscriptions to the Losant IoT Platform or any Losant Background IP.
  9. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, design rights, trade secret, trademark, moral rights, and other similar rights, whether registered or unregistered.
  10. “Losant Background IP” means Intellectual Property Rights: (a) owned by or licensed to us as of the Effective Date; (b) developed or acquired by us after the Effective Date but independent of, and unrelated to, our performance of the Losant Products; (c) relating to standard products or services offered or provided by us (including any improvements or enhancements to those products and services that are made in the course of us providing our services or products to you, but which do not constitute Deliverables), or (d) embodied in Documentation.
  11. “Losant IoT Platform” means an Internet of Things (“IoT”) orchestration platform for developing connected experiences for IoT objects and/or devices. The platform facilitates device management with data visualization that reacts in real-time.
  12. “Losant Products” means (a) our websites located at www.losant.com; (b) Subscription Services, which allow you, your customers, and end users to manage yours and their use, respectively, of the Losant IoT Platform and Devices; (c) Losant’s API, any software that assists you in connecting to our API, and any software that enables you to connect Devices to the Losant IoT Platform; and (d) Documentation.
  13. “Order Form” means the form on which you initially order Losant Products and Other Products from us.
  14. “Other Products” means those products and services that we offer, which are not included in the Losant Products (as detailed below); and, for the purposes of this Agreement, Other Products include, implementation, customization, training, consulting and other professional services.
  15. “Paying Party” means the party responsible for paying us for provision of the Losant Products and Other Products to you, which is you, unless you agree otherwise with us and one of our partners or resellers.
  16. “Service Level Agreement” means the service level agreement that sets forth yours and our service obligations for the Losant Product.
  17. “Statement of Work” or “SOW” means any statement of work entered into by the parties and attached as an Exhibit to this Agreement.
  18. “Subscription Service” means a subscription license to the Losant IoT Platform as ordered on the Order Form. For the purposes of this Agreement, the Subscription Service does not include any Other Products.
  19. “Term” has the meaning set forth in Section 14.2.
  20. “We”, “us”, and “Losant” means Losant IoT, Inc., a Delaware Corporation.
  21. “You” and “Customer” means the party, other than Losant, entering into this Agreement as indicated on the Order Form.

 

  1. ACCESS AND USE OF THE LOSANT PRODUCTS
  1. Background. Customer manufacturers, uses, licenses, owns or otherwise possesses products and devices (“Devices”) that pursuant to the terms contained herein may connect to the Losant IoT Platform. Customer desires to connect its Devices to the Losant IoT Platform to facilitate device management with data visualization that reacts in real-time.
  2. License Grant. Subject to your acceptance of and compliance with this Agreement, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, license during the Term to (a) access and use Losant Products pursuant to the terms provided therein; (b) use the Losant Products to connect Devices to the Losant IoT Platform; (c) use the Losant Products to create applications that allow end user customers to access Device data and the Losant IoT Platform; and (d) distribute Devices that connect with, are connected with, or are configured to connect with the Losant IoT Platform.
  1. PROVISION OF LOSANT PRODUCTS
  1. Provision of Losant Products. We will provide a subscription license to Losant Products to you in accordance with this Agreement and as indicated on the Order Form. You may subscribe to the Losant Products and order certain Other Products as set forth on the Order Form. Thereafter, Other Products may be ordered, and Losant Products may be altered, pursuant only to SOWs entered into between you and us. Unless specified in the Order Form, the default limits per organization include one-thousand (1,000) devices, one-hundred eighty days (180) of data retention, seventy-five million (75,000,000) payloads, and one-hundred (100) organization members.
  2. Third Party Services. If we elect to use any non-Losant, third party service or products with the Losant Products (such as a third party's consulting services or a service that uses an application programming interface (API) provided by us), you acknowledge that such third party service may access or use Customer Data and you permits us to allow the third party service provider to access Customer Data as required for the interoperation of that third party service with the Losant Products.
  1. SERVICE FEATURES
  1. Future Functionality. You agree that your purchases are not contingent on the delivery of any future features or functionality, or dependent on any oral or written public comments made by us regarding future features or functionality.
  2. Changes to Services. We continually change and improve Losant Products. We may alter or remove functionality from such Losant Products at any time without prior notice, provided that we will provide you with prior written notice if we make a change to the Losant Products resulting in a material decrease in core functionality used by your general customer base.
  1. TRAINING AND SUPPORT
  1. Training. Unless otherwise agreed to by us in the Order Form, we will not provide you, your customers or other end users with any training or onboarding support. However, we will make the Documentation available to you and your customers.
  2. Technical Support. You and we will provide technical support to you, your customers and end users as set forth in Order Form. We may communicate directly with any of your customers or end users at any time about use of the Losant Products and any support issues experienced.
  1. FEES
  1. Fees. The Paying Party will pay to us all applicable fees for the Losant Products and Other Products specified in the Order Form and, where applicable, any SOW. Except as otherwise specified in this Agreement or prohibited by applicable law, payment obligations are non-cancelable and fees paid are not refundable.
  2. Invoicing and Payment Terms
    1. Fees for Losant Products will be invoiced upfront, annually;
    2. any fees due for initial Other Products as ordered in an Order Form will be invoiced upon execution of the Order Form and this Agreement;
    3. fees for Other Products (other than those set forth in 6.2(b)) will be invoiced upon execution of the applicable SOW, unless an invoicing schedule is specified on that SOW for such Other Products, in which case that invoicing schedule will apply; and
    4. invoices are due for payment by the Paying Party within thirty (30) days of the invoice date.
  3. Taxes. All amounts payable by the Paying Party under this Agreement are exclusive of any applicable taxes, levies, duties, or similar governmental assessments of any nature (including value-added, sales, use, and withholding taxes, but excluding taxes based on Paying Party's income, property, or employees) (“Taxes”) that may arise in connection with the Paying Party's purchases under this Agreement. If any such Taxes arise, the Paying Party will pay such Taxes in addition to all other amounts payable under this Agreement, unless the Paying Party provides us with a valid tax exemption certificate or other documentary proof, issued by an appropriate taxing authority, that no tax should be charged. If the Paying Party is required by law to withhold any Taxes from its payments to us, the Paying Party must provide us with an official tax receipt or other appropriate documentation to support such payments.
  4. Currency. All monetary amounts in this Agreement are denominated in United States dollars. Fee payments by the Paying Party must be received by us in the same currency as such fees were billed.
  1. CUSTOMER OBLIGATIONS
  1. Restrictions. You shall not:
    1. sell, distribute, resell, or lease any Losant Products without our consent or as otherwise set forth in this Agreement;
    2. reverse engineer any Losant Products, nor assist anyone else to do so, to the extent such restriction is permitted by law;
    3. probe, scan, or test the vulnerability or security of the Losant Products or of any our system or network, without our prior written consent;
    4. use the Losant Products for activities where use or failure of the Losant Products could lead to physical damage, death, mental harm, or personal injury;
    5. use the Losant Products to store or transmit code, agents, programs, or links to such materials that are intended to do harm, including viruses, worms, Trojan horses, and malware;
    6. use the Losant Products to commit an unlawful activity, including storing or transmitting infringing, defamatory, or otherwise unlawful or tortious material;
    7. use the Losant Products for misleading, fraudulent, or other malicious purposes;
    8. engage in abusive or excessive usage of the Losant Products, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Losant Products for other users; or
    9. provide any person under the age of 13 with access to the Losant Products.
  2. Further, You may not remove or export from the United States or allow the export or re-export of the Losant Products, anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
  3. You represent, covenant, and warrant that you will use the Losant Products only in compliance with all applicable laws and regulations. Although we has no obligation to monitor your use of the Losant Products, we may do so and may prohibit any use of the Losant Products it believes may be (or alleged to be) in violation of the foregoing.
  4. Third Party Requests. You and/or us may from time to time receive a request from a third party for records related to your use of the Losant Products, including information in one of your end user accounts or identifying information about your end user (“Third Party Request”). Third Party Requests include search warrants, subpoenas, and other forms of legal process. You are responsible for responding to Third Party Requests via your own access to the information, and will only contact us if you are unable to obtain such information after diligent efforts. If we receive a valid Third Party Request then, to the extent permitted by law, we:
    1. may inform the third party issuing such request that it should pursue the request directly with you; and
    2. will: (i) promptly notify you of the Third Party Request; (ii) cooperate, at your expense, with your reasonable requests regarding your efforts to oppose a Third Party Request; and (iii) after providing you with an opportunity to respond to or oppose the Third Party Request, we may fulfill that request if we determine that we are required or permitted by law to do so.
  5. Specific Regulations. If your use of the Losant Products requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless we have agreed with you otherwise. You may not use the Losant Products in a way that would subject us to those industry-specific regulations without obtaining our prior written agreement.
  6. Equipment. You shall be responsible for obtaining and maintaining any Devices, equipment and ancillary services needed to connect to, access or otherwise use the Losant Products, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
  7. Suspension of Services. We may limit or suspend the Losant Products from time to time at our discretion (for example, to perform scheduled maintenance or to stop a violation of Section 6.2 or other provisions). If the circumstances reasonably permit, we will give you reasonable advance notice of any limitation or suspension so that you can plan around it, or address the issue that has prompted us to take such action. There may be some situations, such as security emergencies, where it is not practicable for us to give such advance notice. We will use commercially reasonable efforts to narrow the scope and duration of the limitation or suspension as is needed to resolve the issue that prompted such action.
  1. SECURITY
  1. Security. We have implemented and will maintain industry standard technical, physical, and organizational measures intended to protect Customer Data against unauthorized or unlawful processing and against accidental loss of, or damage to, such Customer Data, as detailed in our security overview, which may be viewed at https://docs.losant.com/security/ and https://www.losant.com/iot-platform/security and which may be updated or changed from time to time.
  2. Incident Response. You shall take reasonable measures to:
    1. immediately report to you any breach of security or unauthorized access to Customer Data that you detect or become aware of; and
    2. use its best efforts to remedy such breach of security or unauthorized access in a timely manner and deliver to you a root cause assessment and future incident mitigation plan with regard to any breach of security or unauthorized access affecting any Customer Data that sets out written details regarding your investigation of such incident.
  3. Customer Control and Responsibility. You have and will retain sole responsibility for: (a) content, quality, integrity, and use of Customer Data; (b) all information, instructions and materials provided by or on behalf of you or any Authorized User in connection with the Losant Products; (c) your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by you or through the use of third-party services (“Customer Systems”); (d) the security and use of yours and your Authorized Users' Access Credentials; and (e) all access to and use of the Losant Products, Documentation, or Deliverables directly or indirectly by or through the Customer Systems or yours or your Authorized Users' Access Credentials, with or without your knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
  4. Access and Security. You shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Losant Products; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Losant Products.
  1. INTELLECTUAL PROPERTY
  1. Customer IP. As between the parties, you retain ownership of all Intellectual Property Rights in the Customer Data. This Agreement does not grant us any licenses or rights to the Customer Data except for the following:
    1. You hereby grant us and our affiliates a worldwide, royalty-free, non-exclusive, perpetual license to use, host, copy, transmit, modify, display, aggregate and distribute Customer Data for the purpose of providing the Losant Products to you, support, and for developing and improving our services and products.
    2. If you, your customers or your end users provide us with feedback about the Losant Products, we may use that feedback and incorporate it into our products and services without any obligation to you.
  2. Company IP. As between the parties, we retain ownership of the Losant Products and all related Intellectual Property Rights, and Losant Background IP. No licenses or rights are granted to you by us other than as expressly provided for in this Agreement.
  3. Deliverables. You will own all Intellectual Property Rights in any Deliverables, and we hereby assign all Intellectual Property Rights in any Deliverables to you. Notwithstanding the foregoing, nothing in this Agreement will assign or vest ownership of any Company Background IP from us to you. You grant us and our affiliates a perpetual, worldwide, royalty-free, non-exclusive, perpetual license to use, reproduce, distribute, modify, and adapt the Deliverables for the purpose of improving and providing Losant Products.
  4. Customer Lists. We may identify you by your name, trademark, service mark, and logo as a customer of ours on our website and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit. You may identify us by our name, trademark, service mark, and logo as a provider and in promotional materials only with our prior written consent.
  1. CONFIDENTIALITY; PROPRIETARY RIGHTS
  1. Confidential Information. Each Party (the “Receiving Party”) acknowledges that in connection with this Agreement it will gain access to Confidential Information of the other Party (the “Disclosing Party”). As used herein, “Confidential Information” means any information, knowledge and know-how that may be disclosed to the Receiving Party by the Disclosing Party in writing, orally, visually or in the form of drawings, technical specifications, software, samples, pictures, models, recordings or other tangible or intangible forms, including, but not limited to (i) any current or future information, know-how, techniques, methods, information, tools, development specifications, programming instructions and code, proprietary manufacturing processes and trade secrets; (ii) unpatented inventions, ideas, methods and discoveries, trade secrets, unpublished patent applications and other confidential intellectual property; (iii ) information that the Disclosing Party is obligated to keep confidential on behalf of a third party; (iv) any business, legal, marketing or sales data or information of the Disclosing Party; or (vi) any information that, by its nature, would be understood by the Receiving Party to be confidential or proprietary information. Our Confidential Information further includes Company Background IP and non-public information regarding features, functionality and performance of the Losant Products.
  2. Exclusions. Confidential Information shall not include any anything that (i) was in the public domain at the time of the disclosure thereof to the Receiving Party; (ii) entered the public domain through no fault of the Receiving Party subsequent to the time of the disclosure thereof to the Disclosing Party; (iii) was in the Receiving Party's possession free of any obligation of confidence at the time of disclosure by the Disclosing Party; or (iv) was disclosed to the Receiving Party by a third party source, free of any obligation of confidence.
  3. Protection of Confidential Information. The Receiving Party shall not use the Confidential Information for its own use or for any purpose, except in connection with the purposes of this Agreement. Each party further agrees that it will not disclose Confidential Information to any person or entity except to such employees, advisors or agents on a need to know basis, who shall be advised that such Confidential Information is subject to the confidentiality provisions. The Receiving Party agrees to use not less than a reasonable degree of care to protect the secrecy of and to avoid disclosure or use of the Confidential Information. The Receiving Party agrees to promptly advise the Disclosing Party in writing of any misappropriation or misuse by any person of such Confidential Information which may come to his/her/its attention. Each party shall retain ownership of its Confidential Information. Other than as expressly set forth herein, no license, grant, or other working right in the other party's Confidential Information is granted or implied by this Agreement.
  1. WARRANTY AND DISCLAIMER

    We shall use reasonable efforts consistent with prevailing industry standards to maintain the Losant Products in a manner which minimizes errors and interruptions in the Losant Products and shall provide and perform the Losant Products and Other Products in a professional and workmanlike manner. Losant Products may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control, but we shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, WE do not warrant that the Losant Products will be uninterrupted or error free; nor DO WE make any warranty as to the results that may be obtained from use of the Losant Products. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE LOSANT PRODUCTS ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

  1. INDEMNIFICATION
  1. By Us. We will indemnify, defend, and hold harmless you, your affiliates, and your officers, directors, employees, agents and representatives from and against any and all third party claims, demands, causes of action, lawsuits or liabilities (collectively “Claims”) arising out of or related to any actual or alleged:
    1. any actual of alleged infringement by the Losant technology used to provide the Subscription Services of any copyright, U.S. patent, trademark or trade secrets of such third party. However, in no event will we have any obligations or liability under this Section arising from: (i) use of any Losant Products in a modified form or in combination with materials not furnished or authorized by us, including those provided by you in supporting the Losant Products; or (ii) any End User Data or other content or data provided by you, End Users, or third parties; or
    2. any actual or alleged grossly negligent act, omission, willful misconduct, or breach of Agreement by us.
  2. By You. You will indemnify, defend and hold harmless us, our affiliates, and our respective officers, directors, employees, agents and representatives from and against any and all Claims arising out of or related to, any actual or alleged:
    1. negligent act, omission, willful misconduct, or breach of this Agreement by you; or
    2. infringement or misappropriation of a third party’s Intellectual Property Rights related to your support of Losant Products and Customer Data and all materials that you submit, collect, provide, post, upload, input, or submit for public display via or through the Losant Products.
  3. Potential Infringement. If we believe the technology used to provide the Losant Products may infringe or may be alleged to infringe a third party's Intellectual Property Rights, then we may: (a) obtain the right for you, at our expense, to continue using the Losant Products; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Losant Products so that they no longer infringe. If we do not believe that the foregoing options are commercially reasonable, then we may suspend or terminate your use of the impacted Losant Products and provide a pro rata refund of any fees prepaid by you applicable to the period following the termination of such Losant Products.
  4. Notwithstanding the foregoing, we will have no responsibility for Claims arising out of or related to (i) modifications by you of any portion of a Losant Product if such claim would not have arisen but for such modifications, (ii) unauthorized combination or use of Losant Products with products not contemplated herein if such claim would not have arisen but for such combination or use, (iii) combination or use of any portion of Losant Products with a Device if such claim would not have arisen but for such combination or use, or (iv) support, incorporation, or bundling any portion by you of Losant Products a Licensed Product by, with, or for any Device, product, peripheral, or web-based application if such claim would not have arisen but for such support, incorporation, or bundling.
  5. Indemnity Procedures. A party seeking indemnification under this Agreement will promptly notify the other party of the claim and reasonably cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the indemnified party to admit liability, perform any act or to pay any money will require that indemnified party's prior written consent (such consent not to be unreasonably withheld or delayed); and (b) the indemnified party may join in the defense with its own counsel at its own expense. THE INDEMNITIES IN THIS AGREEMENT ARE A PARTY'S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR VIOLATIONS BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
  1. LIMITATION OF LIABILITY

    NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, WE AND OUR SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY THE PAYING PARTY TO US FOR THE LOSANT PRODUCTS UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1. TERM AND TERMINATION
  1. Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement's express provisions, will continue in effect until such time as indicated on Order Form from such date (the “Initial Term”).
  2. Renewal. This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
  3. Term of SOWs. The term of an SOW starts on its effective date and terminates when all Losant Products ordered under it are terminated or the term of such SOW is completed.
  4. Termination for Cause. You or we may terminate this Agreement and any SOWs for cause: (a) upon 30 days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other party ceases its business operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, administration, liquidation, or assignment for the benefit of creditors.
  5. Termination for Convenience. We may terminate this Agreement on ninety (90) days written notice to the other party.
  6. Consequences of Termination of Agreement. If this Agreement terminates, any SOW in effect will remain in effect in accordance with their terms, but no new SOWs may be entered into under this Agreement.
  7. Payment Consequences of Termination.
    1. Upon your termination of this Agreement, the Paying Party will remain liable to pay any fees payable to us for the period prior to, or any invoices outstanding on, the effective date of termination;
    2. If the Agreement is terminated by you due to our material breach, we will provide the Paying Party with a pro rata refund of any fees prepaid by the Paying Party applicable to the period following the effective date of termination; and
    3. If this Agreement is terminated by us due to your material breach, we will invoice, and the Paying Party will pay, any accrued but unbilled fees and any unpaid fees covering the remainder of the Term had it not been terminated.
  8. Effects of Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
    1. All rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
    2. we will cease all use your Confidential Information and destroy or return such to you within thirty (30) days of termination;
    3. (i) you will immediately cease all use of Losant Products and Other Products and return to us all documents and tangible materials containing, reflecting, incorporating or based on our Confidential Information; and (ii) permanently erase our Losant Background IP and Confidential Information from all Customer Systems and other systems which you directly or indirectly control; and
    4. we may disable all of your and Authorized User access to the Losant Products.
  9. Survival. The following Sections will survive termination of this Agreement: 7, 9, 10, 12, 13, 14, and 15.
  1. MISCELLANEOUS
  1. Amendments. This Agreement may only be amended if authorized representatives of each party agree in a signed writing.
  2. Assignment. You may not assign this Agreement without our prior written consent (such consent not to be unreasonably withheld). We may assign this Agreement by providing written notice to you. Any other attempt to transfer or assign is void.
  3. Governing Law. This Agreement is governed by the laws of the State of Ohio, without giving effect to any of its conflicts of laws principles.
  4. Jurisdiction. Except if prohibited by applicable law, in relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement, each party irrevocably submits to the exclusive venue and personal jurisdiction of the courts located in Hamilton County, Ohio.
  5. Informal Resolution. We would like to address all disputes without resorting to formal legal proceedings. Before filing a claim, each party agrees to try to resolve a dispute by formally notifying the other party in writing that it wishes to negotiate a dispute. If a dispute is not resolved within 30 days of such notice, either party may bring a formal proceeding.
  6. No Class Actions. You may only resolve disputes with us on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
  7. Attorneys' Fees. In any legal proceeding instituted by a party to enforce this Agreement, the prevailing party shall have the right to collect from the other party the reasonable costs and expenses incurred by the prevailing party in conducting the legal proceeding, including reasonable attorneys' fees and disbursements, and court costs.
  8. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will comprise a single instrument. This Agreement may be delivered by facsimile or electronic document format (e.g. PDF), and facsimile or electronic copies of executed signature pages will be binding as originals.
  9. Entire Agreement. This Agreement, constitutes the entire agreement between you and us and it supersedes any other prior or contemporaneous agreements or terms and conditions, written or oral, concerning its subject matter. In the event that any conflicts exists between these TOS, the order form, the SOW, and other documents linked or incorporated herein, the following order of precedence governs: 1) any SOW, 2) the Order Form, 3) these TOS, and 4) other documents linked or incorporated herein.
  10. Force Majeure. Neither us nor you will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, or internet disturbance) that was beyond the party's reasonable control.
  11. Independent Contractors. The relationship between you and us is that of independent contractors, and not legal partners, employees, joint venturers, or agents of each other.
  12. Non-Solicitation. You agree not to intentionally solicit for employment, or for any other engagement, any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and we acknowledge that (i) any publication (online or paper) or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.
  13. Interpretation. The use of the terms “includes”, “including”, “such as” and similar terms, will be deemed not to limit what else might be included.
  14. No Waiver. A party's failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.
  15. Notices.
    1. Providing Notice. All notices must be in writing and will be deemed given when: (i) personally delivered, (ii) verified by written receipt, if sent by postal mail with verification of receipt service or courier, (iii) received, if sent by postal mail without verification of receipt, or (iv) verified by automated receipt or electronic logs if sent by email.
    2. Notices to Us. Notices to us must be sent to Charlie Key, CEO of Losant IoT, Inc., 1100 Sycamore Street, Cincinnati, Ohio, 45202. Email is insufficient for providing non-routine legal notices (including indemnification claims, breach notices, and termination notices) (“Non-Routine Legal Notices”) to us. You may grant approvals, permission, extensions, and consents by email.
    3. Notices to You. Notices to you may be sent to the email address associated with your designated primary administrator for the relevant Service (“Primary Admin”). Billing-related notices (including notices of overdue payments) may be sent to the relevant billing contact designated by you. Notices to end users of the Losant Products may be sent to the email address associated with that end user's account.
    4. Keep Contact Details Current. You, your customers and your end users must keep the contact details associated with their user accounts and billing contacts current and accurate, and notify us in writing of any changes to such details.
  16. Severability. If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
  17. Subcontractors. We may subcontract the provision of Losant Products without your consent. We will be responsible for the performance of its employees and contractors, and their compliance with our obligations under this Agreement, except as may be otherwise specified herein.
  18. Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. Your customers and end users are not third party beneficiaries to your rights under this Agreement.