Xio Terms of Service

XIO PLATFORM TERMS OF SERVICE

Last Updated: June 8th, 2023

These XiO PLATFORM TERMS OF SERVICE (these “ToS”) govern Customers’ access to and use of the Platform and, together with the ordering document entered into between XiO, Inc. (“XiO”) and Customer pursuant to which Customer procured a Subscription, if applicable (the “Order”), form a binding agreement between XiO and Customer (the “Agreement”). The Agreement is effective as of the earlier of Customer’s acceptance of these ToS and the first access of the Platform by or on behalf of Customer.

1. Definitions

   1. “Affiliate” means, as to a party, an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that party. 

   2. “Confidential Information” means all technical, business, financial, and other information, in whatever form (including written, oral, visual, paper, electronic, narrative, and graphic), that a party discloses to the other party in relation to this Agreement except information that (i) is or becomes publicly available other than as a result of disclosure by the receiving party in violation of this Agreement or any other legal, contractual or fiduciary obligation; (ii) is or was independently developed by personnel of the receiving party without access to or use of any Confidential Information of the other party (as defined without regard to this exception); (iii) is or becomes available to the receiving party on a non-confidential basis from a source (other than the disclosing party) that is not prohibited from disclosing such information to the receiving party by any legal, contractual or fiduciary obligation; or (iv) is information that was already known by the receiving party, so long as the receiving party can prove that such information had been in the receiving party’s possession prior to receipt of the Confidential Information by the receiving party. 

   3. “Customer” means the entity or person that has procured a Subscription.

   4. “Customer Data” means electronic data submitted to and stored in the Platform by or behalf of Customer in accessing or using the Platform pursuant to a Subscription.

   6. “De-identified Data” means Customer Data that has been aggregated with other information of XiO’s customers or that has been de-identified. 

   7. “Platform” means, collectively, the software application-based and other electronic services and data provided by XiO to which Customer procures access and use pursuant to the Agreement via one or more of the Internet, cell, and other wireless technology and other telecommunications methods (“Electronic Communications”). The Platform may include web-based management and/or monitoring applications, and data feeds and services, and includes those that are accessed by the Customer through XiO Hardware

   8. “Subscription” means the right to access and use the Platform for the applicable Subscription Term pursuant to and in accordance with this Agreement, including the Order.

   9. “Subscription Fees” mean the fees owed in consideration of a Subscription.

   10. “Subscription Term” means, as to a Subscription, the period for which Customer has procured the right to access and use the Platform from XiO or an authorized XiO reseller.

   11. “XiO Hardware” means equipment that is proprietary to XiO or is XiO-branded and used in connection with the Platform. 

2. General; Term of Subscription. Subject to the terms and conditions of the Agreement, including payment by Customer of applicable Subscription Fees to XiO or XiO’s authorized reseller, as applicable, and for the Subscription Term, XiO shall use commercially reasonable efforts to make available, access and use of the Platform via Electronic Communications to Customer solely for Customer’s internal business use.

    

3. Customer Data; Right to use; other Customer Responsibilities. Responsibility for ensuring that Customer Data is accurate and reflects Customer requirements lies solely with Customer. Customer hereby grants XiO the right and license to use, copy, store, transmit, modify, process, distribute, and display Customer Data for the purposes of performing XiO’s obligations under this Agreement. The Platform may require the use of hardware, including XiO Hardware, such as transmitting sensors and communications and other hardware and software necessary to access the Internet and the Platform, which are not included in Subscription Fees (collectively, the “Equipment”). XiO is not responsible for supplying Equipment except as expressly provided in an agreement with Customer signed by XiO. Customer is responsible for maintaining the security of the Equipment, Customer account information, passwords and files, and for all uses of Customer’s Platform account and the Equipment with or without Customer’s knowledge or consent (excluding uses by XiO in performing its obligations under this Agreement).

    

4. Customer Data; De-identified Data. Customer consents to XiO’s creation of De-identified Data from Customer Data. XiO owns all right, title, and interest in and to De-identified Data and nothing herein restricts XiO’s use of De-identified Data in any manner whatsoever. XiO reserves the right to delete Customer Data in the Platform after the 30 days following the Subscription Term.

    

5. Restrictions. Customer shall not, and shall not knowingly permit any third party to, in whole or in part, (i) reverse engineer, decompile, or disassemble the Platform or use similar methods to determine any design structure, concepts, or construction method of the Platform, including its database, or replicate the functionality of the Platform for any purpose, (ii) copy, translate, resell, distribute, or create a derivative work of the Platform or use the Platform for timesharing, service bureau, or similar purposes, (iii) use the Platform for the purpose of building a similar or competitive product or service, (iv) obtain or knowingly assist in obtaining unauthorized access to the Platform including by sharing log-in credentials to access to Platform, (v) use the Platform in a manner that is contrary to applicable law, in violation of this Agreement or any third party rights of privacy or intellectual property rights, (vi) use the Platform to store, access, distribute or transmit any material that is unlawful, inappropriate, or infringing; facilitates illegal activity; or causes or is reasonably likely to cause damage or injury to any person or property, or (vii) transmit viruses or other code intended to harm or surreptitiously intercept data to or from the Platform, or XiO’s or a third party’s networks or systems, or adversely affect their operation or security. Customer shall indemnify, defend, and hold XiO harmless from claims, demands, liabilities, losses, and costs and expenses (including attorneys’ fees) arising out of or relating to Customer’s breach of this Section 5. XiO has the right (but not the obligation) to monitor and review all information and materials transferred to or otherwise stored under Customer’s account in the Platform for information, material, or activity that XiO deems in its sole discretion to violate this Agreement. Customer shall comply with all applicable laws and regulations in connection with its use of the Platform including export laws and obtain any permits, licenses, and authorizations required to be obtained by Customer in using the Platform; Customer shall not remove, modify, or obscure any XiO or other copyright, trademark, or other proprietary notices affixed to or displayed on or in the Platform and shall not knowingly allow any third party under Customer’s control to take any such action. Customer is responsible under this Agreement for all activities conducted in the Platform under its login credentials and account including those of its independent contractors or any other third party.

    

6. Ownership; Proprietary Rights

    

   1. The Platform; Customer Data. As between the parties, XiO or its third party licensors own all right, title and interest in and to the Platform and De-identified Data and all intellectual property rights in the foregoing and Customer owns all Customer Data. No implied licenses are granted. All rights not expressly granted to Customer in this Agreement are reserved to XiO and its licensors.

   2. Use of Information. Customer hereby consents to XiO’s use of Customer Data as required or permitted by this Agreement and for exercising and enforcing XiO’s rights under this Agreement, including generating De-identified Data from Customer Data.

   3. Feedback. Customer hereby grants to XiO a perpetual, royalty-free, worldwide right to use any information, suggestions, bug reports and fixes, and ideas provided by or on behalf of Customer to XiO for enhancements, modifications, and other feedback regarding XiO products and/or services.

7. Protection and Use of Confidential Information. Each party shall not use or disclose Confidential Information of the other party without the prior written consent of the other party or as permitted or required by this Agreement. The receiving party may disclose the other party’s Confidential Information to the extent necessary to comply with a lawful order of a court or taxing authority, or government regulation, on condition that the party making the disclosure provides the other party with reasonable advance written notice to the extent legally permissible, and reasonably cooperates with the other party’s efforts (at the other party’s request and expense) to seek confidential or protective treatment. In addition, each party shall take at least reasonable measures to protect and maintain in confidence the other party’s Confidential Information. Each party may disclose the terms of this Agreement to (i) its attorneys, accountants, and other professional advisors, or to potential investors or other third parties conducting due diligence in connection with a potential financing, change of control, or other similar transaction of the party, and (ii) in the case of XiO, to XiO’s independent contractors and service providers for the purpose of performing XiO’s obligations under this Agreement, in each case, so long as the third party is under a duty of confidentiality with respect to the disclosure at least as protective as those in this Agreement. Customer may disclose this Agreement to the extent necessary to comply with applicable laws and regulations that make this Agreement a public document or to otherwise comply with applicable public disclosure laws and regulations; provided, however, that, to the extent permitted by law, Customer shall use commercially reasonable efforts to seek confidential treatment of all pricing information within this Agreement in connection with the disclosure. If XiO is obligated to respond to a third-party subpoena or other compulsory legal order or process in connection with Customer Data or Customer’s use of the Platform, Customer shall reimburse XiO for XiO’s reasonable and documented related attorneys’ fees, and other reasonable costs and expenses of responding to the legal order or process at XiO’s then-current hourly rates for performing such activities.

    

8. Indemnification

   1. By XiO. XiO shall indemnify, defend, and hold harmless Customer and its officers, directors, agents, and employees from and against any and all third-party claims, demands, losses, liabilities, suits, costs, and expenses (including reasonable attorney’s fees and legal expenses) (collectively, “Claims”) to the extent arising out of or relating to any third-party claims, demands, or suits alleging that the Platform infringes a third-party’s United States copyright or trademark rights except to the extent the alleged infringement is caused by: (a) changes or modifications to the Platform made or specified by Customer or any third party; or (b) combinations of the Platform with any product or service not supplied or specified by XiO under this Agreement. If a Claim contemplated under this Section 8.1 is brought, XiO shall, at its sole option and expense, and within a reasonable period, use commercially reasonable efforts to (1) procure for Customer the right to continue using the allegedly infringing item; (2) replace the same with a non-infringing item providing materially equivalent functions and efficiency; (3) modify the same to be non-infringing without material loss of functionality; or, if none of the foregoing (1)-(3) is, in XiO’s sole discretion, commercially reasonable, at XiO’s notice, Customer shall discontinue use of the allegedly infringing item and, if Customer is a direct customer of XiO for the Subscription, XiO shall refund to Customer the fees paid by Customer to XiO corresponding to the period following the effective date of such discontinuance and any pre-paid unused Subscription Fees. This Section 8.1 sets forth XiO’s sole liability, and Customer’s sole and exclusive remedy, in lieu of all others, with respect to infringement.

       

   2. By Customer. Customer shall indemnify, defend, and hold harmless XiO and its Affiliates and their respective officers, directors, agents, and employees from and against any and all Claims to the extent arising out of death, injury, and property damage to the extent caused by Customer’s negligence, or willful, reckless, or criminal misconduct; and except in each case to the extent caused by the gross negligence or misconduct of XiO or its agent.

   3. Procedures. The obligations under this Section 8 with respect to a Claim are conditioned upon the indemnified party (i) giving the indemnifying party prompt written notice of the Claim; (ii) granting the indemnifying party complete control of the defense and, conditioned upon a full release of the indemnified parties, settlement the Claim; and (iii) reasonably cooperating with the indemnifying party in the defense and settlement of the Claim.

       

9. Disclaimers. Except for the express warranties provided in this Agreement, the Platform is provided “AS IS AND WITH ALL FAULTS” and “AS AVAILABLE” and to the fullest extent permissible under applicable law, XiO disclaims all warranties, express, implied, and statutory, concerning the Platform, and otherwise related to this Agreement, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and any warranties of non-infringement. XiO does not warrant (i) that the Platform will meet Customer’s requirements, (ii) that the Platform’s operation will be error-free or uninterrupted (including due to performance of the Internet, other Electronic Communications, and Customer’s local network and equipment, which systems XiO is not responsible for providing), (iii) that the Platform will properly operate when used with equipment, other systems, or configurations, in each case not specified by XiO in writing for such use with the Platform, or (iv) XiO’s qualification under state licensing provisions. XiO does not provide design, installation, or maintenance services for water or other industrial systems generally. Proper configuration and implementation of the Platform may involve design, installation, and other considerations not provided by XiO and for which XiO is not responsible. XiO is not responsible for (i) errors in data provided by Customer or its users or representatives, (ii) injury or property damage or other damages or losses due to a failure of the Platform or resulting from local or remote management of Customer’s facilities or systems, (iii) use of the Platform in a manner inconsistent with its specifications and intended use as provided by XiO, or (iv) defects or problems in the Platform to the extent caused by external factors, or to the extent as a result of tampering. Customer acknowledges that use of the Platform in an industrial operation, as with all industrial hardware and software, has an inherent risk of failure and Customer assumes such general risk. The specific risks disclaimed in this Section are not exhaustive. Use of the Platform does not limit Customer’s obligation to ensure, and is not a replacement for, Customer’s on-site monitoring and management of its facilities including responding to water leaks, malfunctions, and hazardous conditions. The entire responsibility in connection with

    

   the consequences resulting from the use of the Platform as well as the intended or achieved results resulting from the use of the Platform lies entirely with Customer. If Customer has procured the Subscription through an authorized distributor or reseller of XiO, XiO shall not be held responsible for any promises or warranties made by such distributor or reseller. To the maximum extent permitted by law, this Section shall apply even if any express warranty or limited remedies set forth in this Agreement fails of its essential purpose. Without limiting the foregoing, the Platform provided by XiO relies upon numerous interconnected communication and other technologies that are inherently not fault-free and may contain errors or become interrupted. XiO disclaims responsibility for liabilities, losses, claims, and demands resulting from any such errors or interruptions. The Platform should not be used for fault-intolerant applications or where such errors or interruptions would present a high degree of risk. Certain Platform features allow alerts and notifications to be sent to mobile devices. XiO is not responsible for text or other mobile communications charges resulting from such alerts and notifications or for alert failures due to failures of the mobile device or its connectivity. XiO is not responsible for Platform errors due to hardware or other equipment failure, including XiO Hardware.

    

10. Limitation of Liability. To the maximum extent permitted by applicable law, in no event will XiO or its Affiliates, including their respective employees, officers, directors, owners, agents, successors and assigns, be liable to Customer or to any third party for any indirect, incidental, special, exemplary or consequential damages, including, but not limited to, lost profits, loss of data, loss of use, business interruption, loss of good will, or cost of procuring substitute products or services, arising out of or in relation to this Agreement or the Platform, even if advised of the possibility of such damages or losses. Notwithstanding anything else in this Agreement to the contrary, XiO’s aggregate liability arising from, relating to, based on, or connected with this Agreement and Customer’s access and use of the Platform shall in any event and under any theory of recovery, including claims of negligence, be limited to the amount of fees actually received by XiO in consideration of the Subscription during the twelve month period immediately preceding the date on which Customer’s claim first accrued.

     

11. Limitations of Disclaimers and Limitations on Liability. Applicable law in certain jurisdictions relevant to this Agreement may limit the contractual exclusion, limitation, or disclaimer of warranties or damages. In such cases, XiO’s liability (and the liability of its Affiliates and agents) will be limited in accordance with this Agreement to the greatest extent permitted by applicable law.

     

12. Improvements to Platform. XiO may make enhancements, updates, and other modifications to the functionality, user interface, usability, and documentation of the Platform from time to time in its sole discretion as part of its ongoing effort to improve its offerings, so long as such modifications do not materially diminish the functionality of the Platform.

     

13. Termination or Suspension of Subscription for Cause. XiO may terminate a Subscription or suspend Customer’s access to the Platform during the Subscription Term in the event that Customer has committed a material breach of this Agreement.

     

14. Force Majeure. XiO shall not be liable to Customer or any other person or entity for any delay or failure in its performance or for loss or damage of any nature whatsoever suffered by Customer or its Affiliates due to (i) disruption or unavailability of utility, hosting, or Internet service or other Electronic Communications, not within the reasonable control of XiO, (ii) acts of war, acts of vandalism, pandemics, terrorism, hacking, lightning, flood, fire, strike, or (iii) any other causes not reasonably anticipated and beyond XiO’s reasonable control.

     

15. Independent Contractor. The relationship of XiO and Customer is solely that of independent contractors. Nothing contained in this Agreement will be construed to make either party the other’s partner, joint venturer, co-owner, agent, franchisee, or employee. Neither party is authorized or empowered to transact business, incur obligations, or make representations on behalf of the other party.

     

16. Export; U.S. Governmental Rights. Customer shall not remove or export from the United States or knowingly permit the export or re-export of the Platform, or any of its source code, object code, or underlying structure, ideas, know-how or algorithms, documentation or data (the “Platform Materials”), or 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. The Platform Materials are “commercial items”, “commercial computer software”, and “commercial computer software documentation” under U.S. federal acquisition regulations (FAR) and U.S. defense federal acquisition regulations (DFAR). Consistent with such regulations, any use modification, reproduction, release, performance, display, or disclosure of Platform Materials 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 this Agreement.

     

17. Dispute Resolution. In the event of any dispute arising out of or related in any way to this Agreement (except for non-payment by Customer), the parties shall, at the written request of either party, first attempt, in good faith, to settle such disputes informally through direct discussions and negotiations. If a resolution cannot be reached informally within a reasonable period (not to exceed 15 days), the parties shall, before the filing of any lawsuit, submit such disputes to and participate in good faith in at least one non-binding mediation before a mutually-acceptable mediator (or if they cannot agree, then the parties will each choose a mediator and the two mediators will select a third mediator to serve as the sole mediator). For purposes of the procedures set forth in this paragraph, a “dispute” means any action, dispute, claim or controversy of any kind, whether in contract or tort, statutory or common law, legal or equitable, now existing or hereafter arising under or in connection with, or in any way pertaining to this Agreement. The foregoing does not apply to the seeking of injunctive relief. No formal proceedings for the judicial resolution of any dispute, except for the seeking of injunctive relief, may begin until the foregoing dispute resolution procedure has been completed except as otherwise agreed in writing by the parties.

     

18. Miscellaneous. This Agreement, including all its attachments, contains the entire agreement of the parties, and supersedes any and all previous or contemporaneous agreements, with respect to the subject matter hereof, whether oral or written. The Agreement will be binding and will inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by Customer, in whole or in part, without XiO’s prior written consent, such consent not to be unreasonably withheld. Any attempted assignment in violation of the foregoing will be void. XiO may assign, delegate, and subcontract any or all of its rights or obligations hereunder. All formal notices, requests, demands, consents, and communications under this Agreement must be in writing and delivered by electronic mail, by certified or registered mail, return receipt requested, or by overnight courier and will be deemed given five (5) days after deposit in the mail, two (2) days after deposit with an overnight courier, and on the date sent by email if sent during normal business hours of the sender, and on the sender’s next business day if sent outside of the normal business hours of the sender, in each case with confirmation of email transmission. Notices will be sent to the party’s most recent contact information set forth in the Order or such other contact information as the party may specify in writing for notification purposes in accordance with the foregoing from time to time. This Agreement is governed in all respects, including validity, interpretation and effect, by the laws of the State of California, without reference to the conflicts of laws rules or any other rules that would result in the application of a different body of law. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. For purposes of enforcement of this Agreement, except to the extent the parties otherwise agree in writing, the parties submit themselves to the exclusive jurisdiction of the state and federal courts located in San Francisco County in the state of California and hereby agree that such courts have exclusive jurisdiction for the enforcement of this Agreement and any rulings or orders associated therewith, and voluntarily waive any right to challenge jurisdiction based on any theory, including inconvenience of forum. Notwithstanding the foregoing, XiO may seek injunctive or other equitable relief, wherever it deems appropriate, to protect or enforce XiO’s rights under this Agreement. If any part of this Agreement is held to be void or unenforceable, such part will be treated as severable, leaving valid the remainder of this Agreement notwithstanding the part or parts found to be void or unenforceable. No waiver will be effective unless it is in writing and signed by an authorized representative of the waiving party, and any such waiver will only be applicable to the specific instance(s) referenced in such written waiver. This Agreement may be amended only by a writing executed by each of the parties. Headings in this Agreement are for purposes of reference only and will not limit or otherwise affect the meaning hereof. Sections 5 and 4-18 and any payment obligations of Customer under the Agreement will survive a termination of this Agreement or any one or more Orders. The words “for example”, “i.e.,” “including” and “includes” in this Agreement are deemed to be followed by “without limitation”.