Terms of Service

These Terms of Service (“Terms of Service”) set forth the legally binding terms of the agreement between VueOps LLC (“us,” “we” or “VueOps”) and the customer (“Customer”) that has purchased or is otherwise using one or more Services (as hereinafter defined) provided by VueOps.

If you are using the Services on your own behalf as an individual, then all references to the “Customer” shall mean you in your personal capacity. If you are using the Services as an employee, consultant or other authorized representative (“Representative”) on behalf of a business organization, governmental authority or other entity, then “Customer” shall mean such business organization, governmental authority or other entity.

If you are a Representative of a Customer that has entered into a Master Services Agreement with us, then as between us and such Customer, the terms of the Master Services Agreement shall supersede these Terms of Service. However, all Users (as hereinafter defined) agree to be bound by the portion of these Terms of Service applicable to Users.

BEFORE USING THE SERVICES AND AGREEING TO THESE TERMS OF SERVICE, YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE. Use of the Services is void where prohibited. By accepting these Terms of Service and using the Services, you represent and warrant that (a) if you are a Representative using the Services on behalf of a Customer, you are authorized to legally bind the Customer to these Terms of Service and the Customer agrees to comply with these Terms of Service, or (b) if you are the Customer, you have the right, authority, and capacity to enter into these Terms of Service and you agree to comply with these Terms of Service.

Customer acknowledges that we may update these Terms of Service from time to time, and Customer agrees to be bound by any subsequent update to these Terms of Service. The most recent version of these Terms of Service can be found at VueOps’ website at https://www.vueops.com/terms-of-use. Though we will attempt to notify Customer of any material changes in the Terms of Service by posting a notice on our website or sending an email to your registered email address, it is Customer’s responsibility to check for updates to the Terms of Service and any such update shall be effective even if Customer does not receive notice of such update. If Customer does not consent to the updated Terms of Service, Customer can discontinue use of the Service. Customer’s continued use of the Service will constitute acceptance of the updated Terms of Service.

1. Definitions.

“Account Administrator” means a User that has the ability to create and remove Users, administer User accounts, modify access for Users to specific Facilities and manage or modify Customer Data stored in the Document Storage System.

“Change Management Services” means services provided by VueOps from time to time to update or optimize documentation and information about a Facility on the Hosted Service.

“Customer Data” means any and all data and information submitted by or on behalf of Customer (including through all Users) for use in conjunction with the Services, which may include but not be limited to documentation about a Facility, personal information, usernames, passwords and prompts.

“Custom Services” means custom programming and optimization services provided by VueOps to Customer, as more specifically described in an Order Form.

“Document Storage System” means a compatible computer file storage repository used to store Customer’s Facility documents, models and other data accessible through the Hosted Service.

“Facility” means a building, facility or Project for which documentation will be collected and organized through the Hosted Service and which is identified on an Order Form.

“Hosted Service” means VueOps’ hosted software service that collects and organizes documentation related to infrastructure projects, known commercially as VueOps.

“On-Demand Services” means services provided by VueOps in connection with adding documentation and information about a Facility to the Hosted Service and optimizing such information for use on the Hosted Service.

“Order Form” means an order form for the purchase of Services. The parties may enter into one or more Order Forms, and each Order Form shall be subject to these Terms of Service.

“Professional Services” means custom professional and consulting services provided by VueOps to Customer, as more specifically described in an Order Form.

“Project” means any time-limited construction activity or activities involving facility repair, refurbishment, fit-out, system upgrades, or other work that either adds to, reprograms, or reconfigures an existing facility or the construction of a new facility.

“Security Codes” means the usernames and passwords that enable Customer and Users to access the Hosted Service.

“Services” means the Hosted Service, the On-Demand Services, the Change Management Services, the Professional Services and the Custom Services.

“Software Manual” means the software manuals and other written documentation related to the Hosted Service made available by VueOps on-line to Customer, as may be updated from time to time by VueOps.

“Subscription Term” means the period through which Customer has purchased access to the Hosted Service, as set forth in an Order Form.

“Users” means individuals who are authorized by Customer to use the Hosted Service, for whom subscriptions to the Hosted Service have been ordered, and who have been supplied usernames and passwords by Customer or by VueOps. Users may be only Customer’s employees unless otherwise agreed to by VueOps in writing. Employees will be considered any individual with a Customer assigned and managed e-mail address. User accounts for consultants, contractors and agents, or third parties with which Customer transacts business related to the Facility are not permitted unless otherwise set forth in an Order Form or agreed to in writing by the parties. Only Users that are designated as Account Administrators will have access to manage or modify Customer Data in the Document Storage System.

2. Services.

2.1 Use of Hosted Service. Subject to Customer’s payment of applicable fees as well as the other terms and conditions of these Terms of Service and during the Subscription Term, VueOps hereby grants to Customer a nonexclusive and nontransferable license for Customer to, and will provide Customer with the ability to: (i) remotely access the Hosted Service via the Internet; (ii) use the Hosted Service for the Customer’s internal business purposes solely in connection with collecting, managing and accessing documentation for the Facility/Facilities identified in an Order Form (the “Authorized Purpose”); and (iii) grant access to Users and allow such User to use the Hosted Service in connection with the Authorized Purpose.

2.2 Other Services. VueOps will provide all other Services as set forth in an Order Form.

3. User Restrictions and Responsibilities Relating to Use of the Services.

3.1 Legal use of Services. You shall not, either directly or indirectly, use the Services in a manner that is prohibited by any law or regulation, that is in violation of any contractual agreement with VueOps or Customer, that violates any third party rights or that facilitates the violation of any law, regulation or third party rights, or that would disrupt any third party use or enjoyment of any services provided by VueOps.

3.2 Restrictions on Use of Services. You shall not: (a) copy, distribute, or disclose any part of the Service in any medium; (b) resell, sublicense, lease, time-share or otherwise make the Service available to any third party except as expressly permitted herein; (c) use the Service to send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) modify, copy or create derivative works based on the Service; (e) reverse engineer, decompile, or disassemble the Service, except as expressly permitted by applicable law; or (f) access the Service for the purpose of building a competitive service or copying its features or user interface. You agree that you will not permit any other person to use your User account and that you are liable for any use of your User account by any other person.

3.3 Registration Information. You agree that all contact and other registration information provided to us is true and accurate and you agree to keep all such information up-to-date. By providing us with your email address you consent to our using such email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may send you other messages related to the Services, though you may use your Notifications Settings to opt out of many Service-related communications.

3.4 Termination of Use. You agree and acknowledge that we or the Customer may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Services without notice and liability for any reason we deem acceptable, including for any violation of these Terms of Service.

3.5 Privacy Policy. You agree to and acknowledge receipt of the VueOps Privacy Policy available at https://www.vueops.com/privacy-policy (the “Privacy Policy”).

4. Customer Obligations.

4.1 Order Forms. Customer and VueOps may execute one or more Order Forms, each of which shall describe the Services to be provided by VueOps.

4.2 Payments. Customer shall pay the fees for the Services set forth in an Order Form. Thereafter, unless otherwise set forth in an Order Form, VueOps will invoice Customer in advance of the expiration of the then current Subscription Term for the following Subscription Term. Unless otherwise set forth in an Order Form, all invoices are due and payable in full within thirty (30) days after the date of invoice. Any additional or different terms appearing in any purchase order or other document from Customer that are inconsistent with these Terms of Service shall be void and have no force or effect. Any invoice not paid within thirty (30) days of date of invoice will be deemed late, and will accrue late charges at a rate of one and one half percent (1 1/2%) per month, or the maximum rate allowed under law, whichever is lower.

4.3 Taxes. Unless otherwise set forth in an Order Form, Customer shall be responsible for all sales taxes, use taxes, withholding taxes and any other similar taxes and charges of any kind imposed by any national, federal, state or local governmental entity on the transactions contemplated by these Terms of Service, excluding only taxes based solely upon VueOps’ income. When VueOps has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides VueOps with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.4 Authorized Users. Customer acknowledges that each User will be required to enter into these Terms of Service. Customer acknowledges and agrees that Customer is responsible for all access to and use of the Hosted Service by its Users, including any breach of these Terms of Use by its Users.

4.5 Customer Data Integrity. Customer shall be responsible for the accuracy, quality and legality of all Customer Data used in connection with the Services, including but not limited to Customer Data transmitted through the Hosted Service. Further, Customer shall be responsible for backing up all Customer Data and shall also be responsible for any changes to or deletion of Customer Data made by its Users. Without limiting the generality of the foregoing, Customer shall not and shall not permit others to: (i) transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar or obscene material of any kind, (ii) use the Services to attempt to compromise the security of any networked account or site, (iii) store or transmit any network or computer viruses, worms, time bombs, Trojan horses or other harmful or malicious code or files nor (iv) store or access information that would violate the intellectual property rights of a third party.

4.6 Security Code Integrity. Customer understands that failure to protect its Security Codes may allow an unauthorized person or entity to access the Hosted Service. Customer agrees that: (i) VueOps is not responsible for collecting, inputting and updating Security Codes, (ii) Customer assumes the entire responsibility at all times for the supervision, management, control and confidentiality of Customer’s (and all Users’) Security Codes and (iii) Customer assumes the entire risk of any fraudulent or unauthorized use of such Security Codes. Customer shall notify VueOps immediately of any unauthorized use of Customer’s Hosted Service account or any accounts of its Users, or any other breach of security.

4.7 Other Conduct. Customer shall, and shall ensure its Users, use the Services only for the Authorized Purpose and in compliance with the Software Manual. Customer shall not, either directly or indirectly, use the Services in a manner that is prohibited by any law or regulation, that violates any third party rights or that facilitates the violation of any law, regulation or third party rights, or that would disrupt any third party use or enjoyment of any services provided by VueOps.

4.8 Limitations on Use. Customer shall not: (a) copy, distribute, or disclose any part of the Services in any medium; (b) resell, sublicense, lease, time-share or otherwise make the Services available to any third party except as expressly permitted herein; (c) use the Services to send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) modify, copy or create derivative works based on the Services; (e) reverse engineer, decompile, or disassemble the Services, except as expressly permitted by applicable law; or (f) access or provide access to the Services by others for the purpose of building a competitive service or copying its features or user interface. VueOps reserves the right to remove Users engaging in any activities as described in this section.

5. VueOps Obligations.

5.1 Support. VueOps will provide basic support to Customer for the Hosted Service at no additional charge during the Subscription Term. Such basic support shall include VueOps’ using commercially reasonable efforts to enable Hosted Service availability 24 hours a day, 7 days a week, except for: (i) planned maintenance downtime as set forth on the website for the Hosted Service at www.vueops.com or in a written notice provided to Customer; and (ii) any unavailability caused by circumstances beyond VueOps’ reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, lightning, electrical power fluctuations or failures, civil unrest, wars, acts of terror, strikes or other organized labor problems, Internet service provider failures or delays, or denial of service attacks (each, a “Force Majeure”). For any breach of any of the foregoing Section 5.1, Customer’s exclusive remedy shall be as provided in Section 10.2 below.

5.2 Personally Identifiable Information. VueOps will use commercially reasonable efforts to maintain safeguards for protection of any personally identifiable data about Users to which VueOps has access in accordance with the privacy policy set forth at www.vueops.com (the “Privacy Policy”).

6. Ownership.

6.1 Hosted Service. All right, title and interest, including all intellectual property rights, in and to the Services, including any suggestions, ideas, enhancement requests, feedback and recommendations regarding the Services provided by Customer or its Users, shall remain with VueOps and its licensors. Customer agrees to take no action regarding the Services that is inconsistent with VueOps’ ownership. Except as otherwise expressly stated herein, nothing in these Terms of Service shall be construed to grant Customer any license or right, by implication, estoppel, or otherwise, to any VueOps intellectual property rights. VueOps reserves the right to modify the features, functionality, templates, and other aspects of the content of the Hosted Service from time to time.

6.2 Customer Data. Customer hereby grants VueOps a nonexclusive and nontransferable license to use the Customer Data provided by Customer or its Users to provide the Services, and Customer represents that it has the right to grant such license. As between Customer and VueOps, Customer shall retain all of its intellectual property and other proprietary rights in the Customer Data. Customer acknowledges and agrees that in connection with the provision of the Services, VueOps may use aggregated data provided by Customer and other customers to provide aggregated building management data, analytics and recommendations to Customer, other customers and other third parties. Except as otherwise expressly stated herein, nothing in these Terms of Service shall be construed to grant VueOps any license or right, by implication, estoppel, or otherwise, to any rights of Customer in the Customer Data.

6.3 Restrictions. Customer shall not: (i) create derivate works based on the Services except as authorized herein, (ii) copy, frame or mirror any part or content of the Services, other than copying or framing the Hosted Service on Customer’s own intranets or otherwise for Customer’s own internal business purposes in connection with the Authorized Purpose, or (iii) access the Services in order to build a competitive product or service.

7. Warranties and Disclaimers.

7.1 Hosted Service Warranty. VueOps warrants to Customer that during the Subscription Term the Hosted Service shall perform substantially in accordance with the then current Software Manual. The foregoing warranty shall be of no force or effect and VueOps shall have no obligation thereunder: (i) to the extent that any failure is due to causes that are external to the Hosted Service or is otherwise a Force Majeure or is a result of hardware or software not provided by VueOps; or (ii) if Customer has neglected, misused, or otherwise used in a manner not in compliance with the Software Manual or these Terms of Service the Hosted Service. For any breach of any of the foregoing warranties, Customer’s exclusive remedy shall be termination of these Terms of Service as provided in Section 10.2 below.

7.2 Other Services Warranty. VueOps warrants to Customer that the Services (other than the Hosted Service) will be performed in a professional manner, in compliance with any written specifications set forth in an Order Form and in compliance with any laws applicable to VueOps. For any breach of any of the foregoing warranties, Customer’s exclusive remedy shall be termination of these Terms of Service as provided in Section 10.2 below.

7.3 Disclaimer of Warranties. OTHER THAN THE EXPRESS WARRANTIES PROVIDED IN THE PRECEDING PROVISION, VUEOPS DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, IN RELATION TO OR ARISING OUT OF THESE TERMS OF SERVICE, THE SERVICES, THE USE THEREOF AND ANY DATA, MATERIAL, CONTENT AND INFORMATION PROVIDED THROUGH THE SERVICES. WITHOUT LIMITING THE FOREGOING, VUEOPS SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SERVICES OR ACCESS THERETO WILL BE UNINTERRUPTED, SECURE, COMPLETE OR ERROR-FREE, AND DISCLAIMS ANY WARRANTY AS TO THE ACCURACY, OMISSIONS, COMPLETENESS OR CURRENTNESS OF ANY CONTENT PROVIDED BY OR THROUGH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT, WHILE VUEOPS USES REASONABLE EFFORTS TO PROVIDE THE SERVICES, THE PROVISION OF THE SERVICES INVOLVES THE POSSIBILITY OF HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA.

8. Indemnification. Customer agrees to indemnify, hold harmless, defend and release VueOps and its users, affiliates and suppliers, and its and their respective officers, directors, stockholders and agents, from any claims, losses, damages or liabilities, including attorney’s fees, arising out of (i) the use or misuse of the Services by any User or anyone using an User’s account(s), (ii) breach of these Terms of Service by any User or anyone using an User’s account(s), (iii) the violation of any applicable law or the rights of any other person or entity by any User or anyone using an User’s account(s) arising out of related to the Services or (iv) the infringement of any intellectual property or other right of any person or entity by any User or anyone using an User’s account(s). Customer agrees not to settle any such matter without the prior written consent of VueOps. VueOps reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify VueOps and Customer agrees to cooperate with our defense of these claims.

9. LIMITATIONS OF LIABILITY.

9.1 Limitation of Liability. TO THE MEXIMUM EXTENT ENFORCEABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VUEOPS ANY ITS AFFILIATES AND SUPPLIERS UNDER OR RELATING TO THESE TERMS OF USE, THE SERVICES OR THE USE THEREOF WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO VUEOPS FOR THE RELEVANT SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE.

9.2 Exclusion of Consequential and Related Damages. TO THE MEXIMUM EXTENT ENFORCEABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL VUEOPS AND ANY ITS AFFILIATES AND SUPPLIERS HAVE ANY LIABILITY TO CUSTOMER, ANY USER OR YOU FOR ANY LOST PROFITS, LOST REVENUES OR LOST DATA, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Term and Termination.

10.1. Subscription Term. Subject to the provisions of Section 10.2 below, these Terms of Services continue until the expiration of the Subscription Term. Unless terminated pursuant to Section 10.2, the Subscription Term shall automatically renew for successive terms as identified in the Order Form unless either party notifies the other party in writing no later than sixty (60) days prior to the expiration of an annual agreement and no later than seven (7) days prior to the expiration of a monthly agreement that such party does not desire to renew the Subscription Term. Any such renewal shall be at VueOps’ then current subscription pricing terms, unless otherwise set forth in an Order Form or agreed to in writing by the parties.

10.2 Termination for Cause. Either party may terminate these Terms of Service: (i) upon the expiration of thirty (30) days’ written notice of a material breach of these Terms of Service by the other party where such breach is not cured within such thirty (30) day period; or (ii) in the event that the other party petitions for or consents to any relief under any bankruptcy, reorganization or similar statute, makes an assignment for the benefit of its creditors, or petitions for the appointment of a receiver, liquidator, trustee or custodian of all or a substantial part of its assets, or a receiver, liquidator, trustee or custodian is appointed for all or a substantial part of its assets and is not discharged within sixty (60) days after thereafter. In addition, VueOps may terminate any User’s use of the Services immediately and without notice in the event of any violation of these Terms of Use by such User.

10.3 Refund or Payment upon Termination. Upon any termination for cause by Customer pursuant to Section 10.2, VueOps shall refund to Customer any prepaid fees covering the period remaining after the effective date of such termination under the then current Subscription Term. Upon any termination for cause by VueOps pursuant to Section 10.2, Customer shall pay any unpaid fees covering the remaining portion of the then current Subscription Term. In no event shall any termination relieve Customer of the obligation to pay any fees payable to VueOps for the period prior to the effective date of any termination. Neither party shall have any obligation to the other party by reason of the termination or expiration of these Terms of Service in compliance with its terms, and each party hereby agrees not to assert any claim by reason of such termination or expiration of these Terms of Service.

10.4 Surviving Provisions. Notwithstanding the expiration or termination of these Terms of Service for any reason, the provisions of Sections 3, 4.4 –4.8, 5.3, 6, 7.3, 8, 9, 10 and 11 as well any rights and obligations that accrued prior to the expiration or termination of these Terms of Service shall survive any such expiration or termination of these Terms of Service.

10.5 Customer Data at Expiration or Termination. Upon any termination of these Terms of Service, Customer shall have thirty (30) days of access after termination of access to the Hosted Service or the Document Storage System to retrieve and transfer any Customer Data stored in the Hosted Service.

11. GENERAL TERMS.

11.1 INDEPENDENT CONTRACTORS; THIRD PARTY BENEFICIARIES. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to these Terms of Service.

11.2 ENTIRE AGREEMENT; AMENDMENT. These Terms of Service represent the entire agreement of the parties hereto, and supersede all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or similar ordering document (other than a mutually executed document) shall be incorporated into these Terms of Service, and all such terms shall be void. These Terms of Service may not be modified except by VueOps as provided at the beginning of these Terms of Service or in a writing signed by VueOps.

11.3 WAIVERS; REMEDIES. No amendment or waiver of any provision of these Terms of Service shall be effective unless in writing and signed by User and VueOps. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.4 SEVERABILITY. If any provision of these Terms of Service is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.

11.5 ASSIGNMENT. These Terms of Service will be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. Notwithstanding the above, User may not assign its rights or obligations under these Terms of Service, whether by operation of law or otherwise, without the prior written consent of VueOps. Any assignment in violation of this Section shall be null and void. VueOps may assign these Terms of Service in its entirety, without consent of User, to any party, including to a successor in interest to the business of VueOps, whether by a merger, reorganization, asset sale or similar transaction.

11.6 GOVERNING LAW; VENUE. These Terms of Service will be deemed to have been made in the State of California, and the provisions and conditions of these Terms of Service will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of laws principles thereof. EXCEPT FOR ANY ACTIONS FOR PRELIMINARY EQUITABLE RELIEF, THE EXCLUSIVE VENUE FOR ANY DISPUTE RELATING TO THESE TERMS OF USE IS THE STATE AND FEDERAL COURTS LOCATED IN SAN FRANCISCO, CALIFORNIA. USER AND VUEOPS CONSENT TO THE PERSONAL JURISDICTION OF THESE COURTS. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Service.

We suggest you print out a copy of these Terms of Service for your records. Should you have any questions concerning these Terms of Service, you may contact VueOps at [email protected].

VueOps is a registered trademark of VueOps LLC.

Updated: May 10, 2019