aware of your legal rights and obligations with respect to BreezoMeter Ltd. (“BreezoMeter“, “ we“, “ us” or “our“).By accessing or using any part of the Site, you expressly acknowledge and agree that you are entering into a legal
signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by these Terms, please do not use any part of the Site. For the avoidance of doubt, if you
download the BreezoMeter App (BreezoMeter’s mobile software application product) from the Site or receive access to any other BreezoMeter products or services made available for developers or businesses from the Site, additional terms and
conditions will apply to your use of such products or services.
Modification. We reserve the right to modify these Terms at any time by publishing the updated Terms on the Site. Such modification will be effective upon publication of the updated Terms, and your continued use of any part of the Site
thereafter shall constitute your acceptance of those modifications and the updated Terms.
Ability to Accept. By using the Site you affirm that you are over thirteen (13) years of age. If you are between the ages of thirteen (13) and eighteen (18) years, then, prior to using the Site, you must first review these Terms with
your parent or guardian to make sure that you and your parent or guardian understand them.
License. Subject to your full compliance with these Terms and applicable law, we grant you a non-exclusive, non-sublicensable and non-transferable license to access, use and display locally the Site and the Content (as defined below),
to the extent we hold such rights, and solely for purpose of using the Site.
License Restrictions. You shall not: (i) copy, distribute or modify any part of the Site without our prior written authorization; (ii) use, modify, create derivative works of, transfer (by sale, resale, license, sublicense, download or
otherwise), reproduce, distribute, display or disclose Content (defined below), except as expressly authorized herein; (iii) disrupt servers or networks connected to the Site; (iv) use or launch any automated system (including without
limitation, “robots” and “spiders”) to access the Site; and/or (v) circumvent, disable or otherwise interfere with security-related features of the Site or features that prevent or restrict use or copying of any Content or that enforce
limitations on use of the Site.
Account. In order to use some of the services of the Site, you may have to create an account (“Account”). You agree not to create an Account for anyone else or use the account of another without their permission. When creating your
Account, you must provide accurate and complete information. You are solely responsible for the activity that occurs in your Account, and you must keep your Account password secure. You must notify Breezometer immediately of any breach
of security or unauthorized use of your Account. As between you and Breezometer, you are solely responsible and liable for the activity that occurs in connection with your Account. If you wish to delete your Account you may do so in the
account section found through the menu.
Location Data.Certain features or functionality (“ Features“) of the Site may collect or be dependent on data related to your geographic location (“ Location Data“). If you wish to use these Features, you agree to provide or to make
may be limited or not operate.
Intellectual Property Rights.
Ownership. Your use of the Site is licensed and not sold to you under these Terms and you acknowledge that BreezoMeter and its licensors retain all title, ownership rights and Intellectual Property Rights (defined below) in and to
the Site (and its related software). We reserve all rights not expressly granted herein to the Site. As used herein, the term “ Intellectual Property Rights” means any and all rights in and to any and all trade secrets, patents,
copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any
governmental, regulatory, or judicial authority, whether foreign or domestic.
Content. The content, including, without limitation, information, data, text, photographs, videos, audio clips, written posts, articles, comments, software, scripts, graphics, and interactive features generated, provided or
otherwise made available on or through the Site (collectively, the “ Materials“), as well as the User Submissions (defined below) and the trademarks, service marks and logos contained therein (collectively, “Marks“, and together
with the Materials and User Submissions, the “ Content“), is the property of BreezoMeter and/or its licensors and may be protected by applicable copyright or other intellectual property laws and treaties. “BreezoMeter” and the
BreezoMeter logo are Marks of BreezoMeter Ltd. and/or its affiliates. All other Marks used on the Site are the trademarks, service marks, or logos, as applicable, of their respective owners. We reserve all rights not expressly
granted in and to the Site and the Content.
- Use of Content. The Content on the Site is provided to you for your personal use only and may not be used, copied, distributed, transmitted, broadcasted, displayed, sold, licensed, de-compiled, or otherwise exploited for any
other purpose whatsoever without our prior written consent. If you download or print a copy of the Content, you must retain all copyright and other proprietary notices contained therein. You acknowledge that all Content accessed or
used by you is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom.
The Site may permit the sharing of content by you and other users, including but not limited to information, opinions, recommendations, inventions and/or feedback that you may provide BreezoMeter in connection with the Site and/or
your experience while using the Site (“ User Submissions“). Your User Submissions may be made publicly available through the Site. You understand and agree that, whether or not such User Submissions are published, we do not
guarantee any confidentiality with respect to any User Submissions. You shall be solely responsible for your User Submissions and the consequences of sharing them. We have complete discretion whether to publish your User Submissions
and we reserve the right without further notice to you, to monitor, censor, edit, remove, delete, and/or remove any and all User Submissions at any time and for any reason. Each User Submission, whether publicly posted or privately
transmitted, is the sole responsibility of the user who originated such User Submission. You warrant that all User Submissions originated by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules
and regulations. You acknowledge that all Content, including User Submissions, accessed by you using the Site is at your own risk, and you will be solely responsible for any damage or loss to you or any other party resulting
therefrom. We do not guarantee that any Content you access on or through the Site is or will continue to be accurate.
sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, publicly display, and publicly perform the User Submissions in connection with the Site, including without limitation to
redistribute part or all of your User Submissions (and derivative works thereof), and you hereby waive any moral rights in your User Submissions, to the extent permitted by law. You also hereby grant each of our users and Third
Party Sources (defined below) a non-exclusive right to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions in accordance with these Terms.
- Prohibited Content. You agree that you will not display, post, submit, publish, upload or transmit a User Submission that: (i) is unfair or deceptive under the consumer protection laws of any jurisdiction; (ii) is
copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights; (iii) creates a risk to a person’s safety or health,
creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement; (iv) impersonates another person; (v) promotes illegal drugs, violates export control laws, relates to
illegal gambling, or illegal arms trafficking; (vi) is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal
offense, gives rise to civil liability, violates any law, or is inappropriate; (vii) involves theft or terrorism; or (viii) is otherwise malicious or fraudulent.
Third Party Sources and Content.
The Site enables you to view, access, link to, and use content and/or information based on raw data, including observational data, gathered by third party sources (“ Third Party Sources“), not owned or controlled by us (“ Third
Party Content“). Such Third Party Content is subject to third party terms and conditions (“ Third Party Terms“) and provided without BreezoMeter or any other professional person monitoring, examining, validating or altering in any
way such information, and without any verification whether such information is true, complete or accurate.
A list of the Third Party Sources and their related Third Party Terms is available at Data Sources Attribution. If there is a conflict between any Third Party
Terms and the terms of these Terms, then the Third Party Terms shall prevail but solely in connection with the related Third Party Sources.
- For the avoidance of doubt, all such Third Party Sources are and shall continue to be the owners of all such Third Party Content.
- We are not responsible for, and we expressly disclaim all warranties regarding, the accuracy, appropriateness, usefulness, safety, or Intellectual Property Rights of, or relating to, any Third Party Content.
- We do not endorse any advertising, promotions, campaigns, products, services or other materials that are included in any Third Party Content or communicated to you from a Third Party Source.
By accessing or using the Site, you may be exposed to Third Party Content that is inaccurate, offensive, indecent, or objectionable. You always have the choice of deciding whether or not to interact with a Third Party Source or to
view and use Third Party Content. Your interaction with a Third Party Source and your use of, and reliance upon, any Third Party Content is at your sole discretion and risk.
You are solely responsible and liable for your interaction with Third Party Sources. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against BreezoMeter, and release BreezoMeter from
any and all liability, arising from your use of and interaction with any Third Party Content and/or Third Party Source. If you have any query or complaint regarding a Third Party Source or Third Party Content, you agree to contact
the Third Party Source directly.
Your use and access of the Site hereunder is currently free of charge, however, we charge a fee for certain features and/or uses. You will not be charged for any such uses of the Site unless you first agree to such charges, but
please be aware that any failure to pay applicable charges may result in your not having access to some or all of the Site.
If you choose to utilize any such paid features, you will be charged [a monthly subscription fee which shall automatically renew every month]. You may cancel your automatic subscription at any time via the account section found
through the menu. You must cancel your automatic monthly subscription before the end of the month occurs in order to avoid being billed for the next month's monthly subscription fee. Payments shall be made without any right of
set-off or deduction and are irrevocable and nonrefundable. Payments are submitted and processed through various third party payment processing services ('Payment Providers'), and additional terms may apply to such payments. You
agree that the terms and conditions of such Payment Providers shall apply to the online payments. We reserve the right, at any time and for any reason, at our sole discretion, to change our available payment methods and/or our
Payment Providers. BreezoMeter shall in no event be responsible or liable for: (A) the availability and/or operation of any Payment Provider; or (B) any interaction between you and a Payment Provider.
Please be aware that your use of the Site may require and utilize Internet connection or data access. To the extent that third party service provider or carrier charges for your Internet or data usage are applicable, you agree to be
solely responsible for those charges.
Information Description.We attempt to be as accurate as possible and provide you with real-time air quality information. However, please be aware that since such Third Party Content provided and displayed within the Site is received
from Third Party Sources, such information may appear in a delay and/or may be partial or inaccurate, and therefore we cannot and do not warrant that the content available on the Site is accurate, complete, reliable, current, or
error-free. We reserve the right to make changes in or to the content, or any part thereof, without the requirement of giving you any notice prior to or after making such changes to the content.
that certain personal information and other information provided by you in connection with your use of the Site may be stored on your computer or other device (even if we do not collect that information). You are solely responsible for
maintaining the security of your computer or other device from unauthorized access.
THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
WE DO NOT WARRANT THAT THE SITE WILL OPERATE ERROR-FREE, THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT WE WILL CORRECT ANY ERRORS IN THE SITE. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO
YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY
TELECOMMUNICATIONS OR INTERNET PROVIDERS.
BREEZOMETER DOES NOT GUARANTEE THAT THE REPORTS PROVIDED BY THE SITE DO NOT REFLECT REFLECT LOCATION OF FIRES AND/OR POLLUTION LEVELS, INCLUDING ACTIVE FIRE AND SMOKE POLLUTION, INSIDE STRUCTURES OR IN, OR IN THE IMMEDIATE VACINITY
OF, SITES ASSOCIATED WITH HIGH RISKS OF POLLUTION OR TOXICITY, SUCH AS, BUT NOT LIMITED TO, INDUSTRIAL AREAS, CONSTRUCTION SITES, LABS OR RESEARCH FACILITIES OR WASTE COLLECTION, DISPOSAL OR TREATMENT SITES. YOU SHALL NOT RELY ON,
AND WE MAKE NO WARRANTY REGARDING, REPORTS FROM THE SITE IN CONNECTION WITH ANY OF THE FOREGOING.
THE CONTENT PROVIDED AND DISPLAYED WITHIN THE SITE IS NOT INTENDED TO BE, AND SHALL NOT BE CONSIDERED BY YOU TO BE, A SUBSTITUTE FOR THE TESTING OR REPORTING OF THE CONCENTRATION OF POLLUTION ELEMENTS, INCLUDING ACTIVE FIRE AND
SMOKE POLLUTION ELEMENTS, BY THE APPLICABLE INSTITUTION(S) OR SERVICE PROVIDER(S) AUTHORIZED TO DO SO UNDER APPLICABLE LAWS AND REGULATIONS. THE SITE AND THE CONTENT PROVIDED SHALL NOT CONSTITUTE ANY FORM OF CONSULTATION, OPINION,
DIAGNOSIS, AND/OR RECOMMENDATION OF ANY KIND, AND SHALL NOT BE RELIED UPON FOR ANY PURPOSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO, FOR THE PURPOSE OF MAKING DECISIONS CONCERNING YOUR OR ANY OTHER PERSON’S HEALTH, FORMULATING OR
SUPPORTING REGULATIONS, ASCERTAINING TRENDS, ACTING AS GUIDANCE, OR SUPPORTING ANY OTHER GOVERNMENTAL OR PUBLIC DECISION-MAKING. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE CONTENT PROVIDED BY THE SITE IS BASED ON RAW DATA, INCLUDING
OBSERVATIONAL DATA, WHICH ARE NOT FULLY VERIFIED OR VALIDATED, ARE SUBJECT TO CHANGE, SHOULD BE CONSIDERED PRELIMINARY, AND ARE PROVIDED SOLELY FOR THE PURPOSE OF REPORTING AND FORECASTING THE AIR QUALITY INDEX (AQI). ANY AND ALL
OFFICIAL REGULATORY AIR QUALITY DATA MUST BE OBTAINED FROM THE EPA’S AIR QUALITY SYSTEM (AQS).
YOU HEREBY ACKNOWLEDGE THAT YOUR USE OF THE SITE IS VOLUNTARY AND AT YOUR OWN RISK, AND YOU AGREE THAT BREEZOMETER WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCES (SUCH AS, BUT NOT LIMITED TO, HEALTH PROBLEMS, PERSONAL
INJURY, OR DEATH) TO YOU OR ANY THIRD PARTY THAT RESULT FROM YOUR USE OF (OR INABILITY TO USE) THE SITE.
IF YOU HAVE A DISPUTE WITH ANY USER OF THE SITE AND/OR THIRD PARTY SOURCE, YOU AGREE THAT WE ARE NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO
MONITOR ANY SUCH DISPUTE.
- Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
Term and Termination.
We reserve the right, at any time, to: (i) discontinue or modify any aspect of the Site; and/or (ii) terminate these Terms and your use of and access to the Site with or without cause, and shall not be liable to you or any third
party for any of the foregoing. If you object to any term or condition of these Terms or any subsequent modifications thereto, or become dissatisfied with the Site in any way, your only recourse is to immediately discontinue use of
This Section 16.2 and Sections 7 ( Intellectual Property Rights), 12 ( Privacy), 13 ( Warranty Disclaimers), 14 ( Limitation of Liability), 15 ( Indemnity), and 17 ( Assignment) to 20 ( General) (inclusive), as well as any provision
of these Terms which by nature ought to survive, shall survive termination of these Terms and your use of or access to the Site.
- Assignment. These Terms (and any rights and obligations hereunder), may not be assigned by you, but may be assigned by BreezoMeter without restriction or notification. Any unauthorized assignment shall be null and void.
Modification. We reserve the right to modify these Terms at any time by publishing the updated Terms on the Site. Such modification will be effective upon publication of the updated Terms, and your continued use of any part of the Site
thereafter shall constitute your acceptance of those modifications and the updated Terms.
Governing Law and Disputes. These Terms and any dispute between you and BreezoMeter in connection with the Site shall be governed by and construed in accordance with the laws of the State of New York, U.S.A., without regard to its
conflict of laws rules. Any claim, dispute or controversy between you and BreezoMeter shall be subject to the exclusive jurisdiction of the courts located in New York, NY, and you hereby irrevocably submit to the personal and exclusive
jurisdiction of such courts and waive any jurisdictional, venue, or inconvenient forum objections to such courts; provided, however, that BreezoMeter may seek injunctive relief in any jurisdiction worldwide.
Independent Contractors. You and BreezoMeter are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, or employment relationship between you and BreezoMeter. You must not under any circumstances
make, or undertake, any warranties, representations, commitments or obligations on behalf of BreezoMeter.
General. These Terms, and any other legal notices published by us in connection with the Site, shall constitute the entire agreement between you and BreezoMeter concerning the Site. If any provision of these Terms is deemed invalid by a
court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, and the invalid provision shall be substituted with
a provision that most closely approximates the original legal and economic effect of the invalid provision. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and a
party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Any waiver must be in writing and duly signed by the waiving party. All section and sub-section headings used
in these Terms are for convenience only, and shall not be relied upon or used in interpreting these Terms. Any notices to BreezoMeter must be sent using the tools made available on the Site. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU
MAY HAVE ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Updated: April, 2022
the Purchase Order which you have signed (the "PO") constitute a binding agreement (the "Agreement"). All capitalized terms used but not defined herein shall have the meaning ascribed to such term in the
PO. These Terms and the Agreement are between you (the “Company”) and the BreezoMeter entity listed in your PO ("BreezoMeter").
By accessing or using any part of the BreezoMeter Materials (defined below), Company acknowledges that it has reviewed, and agrees to be bound by, this Agreement. Furthermore, if Company is acting on behalf of an entity, Company
represents that it is authorized to act on behalf of, and bind to this Agreement, such entity. If Company does not agree to this Agreement, it may not access or use any part of the Materials.
- Account and Server Key. Promptly following the Effective Date, BreezoMeter shall create an account for Company to obtain a unique code or credential provided by BreezoMeter (“Server Key”) that permits
Company to access and use of the Service API. The Company undertakes to ensure that no person other than its employees and agents (collectively, the “Authorized Users”) access or use the Service API. Company shall be
liable for the activity that occurs in connection with its account and/or use of the Service.
- License. Subject to the terms of this Agreement, BreezoMeter grants to Company a limited, non-exclusive, non- sublicensable, non-transferable (except pursuant to Section 15) license to:
internally use, make calls to (subject to the API call threshold referenced in the PO) and display the Service API, the Service Interaction Code and the Documentation, solely as necessary for Company to develop, maintain, support
and exploit the Implementation, in accordance with any specifications provided;
reproduce, publish, distribute, export and publicly display the BreezoMeter Data solely in the Implementation, and pursuant to an agreement with an end user of the Implementation (the “End User Agreement” and the
“End User” respectively);
use and display BreezoMeter’s Marks, in accordance with the Documentation and other guidelines provided from time to time, solely for the purpose of publicizing or advertising that Company is using the Service in the Implementation.
All use of BreezoMeter’s Marks (including any goodwill arising therefrom) shall solely benefit BreezoMeter; and
- to the extent included under the applicable PO, use the Intelligence Platform as further defined in Section 16 below.
- Restrictions of Use. Company shall not (and shall not permit any Authorized User or other third party to):
reproduce, (sub)license, disclose, distribute, sell, rent, lease, lend, transfer, assign, export, publicly display, publicly perform, or otherwise commercially exploit, modify, alter, adapt, arrange, translate, or create a
derivative work of, BreezoMeter Materials;
- allow access, linking, calling or querying to, or any other interaction with, the Service from any source other than the Implementation;
reverse engineer, decompile, disassemble, or derive (or attempt to derive) the source code or the algorithm (such as, but not limited to the BreezoMeter Algorithms), or underlying structure, sequence, organization or other
non-literal aspects of, BreezoMeter Materials;
- systematically or repeatedly call the Service API in an abusive manner;
- use data caching or archiving in a manner that may expose End Users to an inaccurate data;
use BreezoMeter Materials to develop a service or product (such as, but not limited to, the Implementation, BreezoMeter algorithm or Heat Maps) that is substantially similar to or that otherwise imitates the Service (as BreezoMeter
determine at its discretion);
- remove, obscure, or alter BreezoMeter’s, or any third party’s, proprietary notices or legends displayed in/on BreezoMeter Materials;
use BreezoMeter Materials in any way that is unlawful, infringing, deceptive, harassing, or defamatory, or for any inappropriate purpose (as BreezoMeter may determine at its sole and absolute discretion, but which shall always
include direct marketing and spamming).
As between the parties, BreezoMeter is, and shall remain, the sole and exclusive owner of the Intellectual Property Rights in and to the BreezoMeter Materials and any upgrade, update, fix, modification and/or improvement
(“Enhancements”) thereto. Any rights not expressly granted to Company in this Agreement are hereby reserved by BreezoMeter. Subject to the foregoing, Company shall be the sole and exclusive owner of the Intellectual
Property Rights in and to each Implementation. In addition, Company acknowledges and agrees that certain data is provided under license from third parties and use of or reliance upon such data is at Company’s sole risk.
If Company provides BreezoMeter with any feedback, ideas or suggestions regarding any BreezoMeter Materials (the “Feedback”), Company hereby grants BreezoMeter a worldwide, non-exclusive, perpetual, irrevocable,
royalty-free, fully paid, sublicensable and transferable license to use, edit, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit such Feedback, for any use or purpose
“Intellectual Property Rights” shall mean all rights, title and interests in and to trade secrets, patents, copyrights, Marks, designs, know-how, utility models, databases, topography and semiconductor mask works,
internet domains, and other intellectual property (such as, but not limited to, software, inventions, improvements, algorithms, formulas, processes, discoveries, conceptions, ideas, techniques, products, specifications, methods,
drawings, diagrams, models, data and data analysis) anywhere in the world, whether registered or unregistered, and including all applications, registrations, renewals, extensions, continuations, divisions or reissues thereof; as
well as any and all moral rights, rights of privacy, publicity and similar rights relating to the foregoing, under any laws of any country.
Portions of the BreezoMeter Materials may include third party open source software that are subject to third party terms and conditions (“Third Party Terms”). A list of any third party open source software and
related Third Party Terms can be found in this page. If there is a conflict between any Third Party Terms and the terms of this Agreement, then the Third Party Terms
shall prevail but solely in connection with the related third party open source software.
- Fees and Payments.
The fees payable under this Agreement are set out in the PO (the “Fees”). In determining the applicable Service API Calls per day for a particular calendar month, BreezoMeter shall, at the end of such month,
calculate the number of daily API Calls per month. Company shall be able to notify BreezoMeter of its desire to upgrade the selected plan listed in the PO to a higher service plan at any time, and the parties shall agree the time at
which such upgrade will take effect. Company shall not be entitled to downgrade its service plan to a lower level service plan.
Company shall pay BreezoMeter the Fees, which shall be non-cancellable and non-refundable. Company will reimburse BreezoMeter for all transaction fees related to the wire transfer. Company shall pay BreezoMeter interest on any
amount which is not paid when due, at a rate equal to the lower of: (a) one and one half percent (1.5%) per month, or (b) the maximum rate of interest allowable under applicable law.
All payments under this Agreement are exclusive of any and all taxes and duties (other than taxes that are based on BreezoMeter’s net income), including without limitation any VAT or similar sales, use or purchase tax or duty. All
payments shall be paid free and clear of any deductions, set offs and/or withholdings.
- Responsibility for the Implementation. Company is, and shall always remain, solely responsible and liable for the Implementation (including the provision of support, maintenance and other technical assistance in
relation thereto). In no event must any End User Agreement grant any rights, impose any obligations, or make any statements that conflict or are inconsistent with any of the terms and conditions of this Agreement. Company shall add an
explicit link to BreezoMeter’s website as the provider of the services within any End User Agreement and shall maintain such link through the Term.
Company shall be solely responsible for providing the following first level support to End Users:
- Receiving and responding to all End User technical inquiries regarding the use of the Service Interaction Code and Service API;
- Implementing and passing through updates and upgrades to the Service Interaction Code
and/or Service API made available by BreezoMeter;
- Receiving and classifying End User inquiries regarding suspected errors in the Service Interaction Code and Service API, including the collection of all relevant technical
error identification information;
- Error tracking and communication to End Users; - Where possible, implementing error resolutions that do not require second level support from BreezoMeter; and
- Escalating unresolved
errors to BreezoMeter for second level support.
Company shall use commercially reasonable efforts to keep BreezoMeter informed as to any errors or problems encountered with the Service Interaction Code and Service API. If Company is not able to correct an error reported to it by
an End User, Company shall refer same to BreezoMeter for second level support and shall precisely describe the error and all relevant technical information.
BreezoMeter will use commercially reasonable efforts to respond to and resolve errors in the Service Interaction Code and Service API which Company has notified to BreezoMeter, in accordance with the Service Package identified in
the PO. For the avoidance of doubt, BreezoMeter shall not be under any obligation to communicate with End Users.
- BreezoMeter shall have no obligation under this Agreement to create any Enhancements to the Service.
- Confidential Information. Each party (the “Recipient”) may have access to certain non-public or proprietary information and materials of the other party (the “Discloser”), whether in
tangible or intangible form (“Confidential Information”). This Agreement and each of its terms are Confidential Information. Confidential Information shall not include information which: (a) at the time of disclosure to
Recipient is in the public domain; (b) after disclosure to Recipient becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure other than under
obligations of confidentiality; (d) is disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of or reliance upon Confidential Information received from
the Discloser. The Recipient shall not disclose the Discloser’s Confidential Information to any third party, except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings.
Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature, to protect the Discloser’s Confidential Information from disclosure to a
third party. The Recipient shall use Confidential Information solely for the purposes of this Agreement. In the event that Recipient is required to disclose Confidential Information pursuant to any law or judicial order, the Recipient
will promptly notify Discloser in writing, reasonably cooperate with Discloser in opposing such disclosure and only disclose to the extent legally required.
Company hereby grants to BreezoMeter a worldwide, irrevocable royalty-free, fully-paid, non-exclusive license to use Company’s Marks for the purpose of publicizing that Company is using the Service. All use of Company’s Marks
(including any goodwill arising therefrom) shall solely benefit Company.
- Promptly following the Effective Date, the parties shall agree in good faith the wording of a joint press release announcing Company’s use of the Service.
- Representations and Warranties. Each party hereby represents and warrants that it has the full power and authority to enter into this Agreement; and is not bound by any agreements, obligations or restrictions that would
interfere with its obligations under this Agreement.
- Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10, BREEZOMETER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY, ALL
OF WHICH ARE HEREBY DISCLAIMED BY BREEZOMETER.
IN ADDITION, (I) ALL BREEZOMETER MATERIALS AND/OR THE PROFESSIONAL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; AND (II) BREEZOMETER MAKES NO REPRESENTATION OR WARRANTY REGARDING THE CONTENT, AVAILABILITY, ACCURACY
OR COMPLETENESS OF THE BREEZOMETER MATERIALS AND/OR THE PROFESSIONAL SERVICES, OR THAT COMPANY’S USE OF THE BREEZOMETER MATERIALS WILL MEET COMPANY’S REQUIREMENTS, OR WILL BE UNINTERRUPTED OR ERROR-FREE.
COMPANY HEREBY CONFIRMS ITS FULL UNDERSTANDING THAT THE SERVICE RENDERED HEREUNDER ARE BASED ON DATA SOURCES WHICH MAY BE UNAVAILABLE FROM TIME TO TIME OR PERMANENTLY WHICH MAY PREVENT BREEZOMETER FROM PROVIDING THE SERVICE IN
ACCORDANCE WITH THIS AGREEMENT.
BREEZOMETER DOES NOT GUARANTEE THAT THE REPORTS PROVIDED IN THE BREEZOMETER MATERIALS WILL ACCURATELY REFLECT LOCATION OF FIRES AND/OR POLLUTION LEVELS, INCLUDING ACTIVE FIRE AND SMOKE POLLUTION, INSIDE STRUCTURES OR IN THE
IMMEDIATE VICINITY OF SITES ASSOCIATED WITH HIGH RISKS OF POLLUTION OR TOXICITY, SUCH AS, BUT NOT LIMITED TO, INDUSTRIAL AREAS, CONSTRUCTION SITES, LABS OR RESEARCH FACILITIES OR WASTE COLLECTION, DISPOSAL OR TREATMENT SITES. YOU
SHALL NOT RELY ON, AND WE MAKE NO WARRANTY REGARDING, REPORTS OR ADVICE FROM THE BREEZOMETER’S MATERIALS AND/OR PROFESSIONAL SERVICES IN CONNECTION WITH ANY OF THE FOREGOING.
YOU HEREBY ACKNOWLEDGE THAT YOUR USE OF THE BREEZOMETER MATERIALS IS VOLUNTARY AND AT YOUR OWN RISK, AND YOU AGREE THAT BREEZOMETER WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCES (SUCH AS, BUT NOT LIMITED TO, HEALTH
PROBLEMS, PERSONAL INJURY, OR DEATH) TO YOU OR ANY THIRD PARTY THAT RESULT FROM YOUR USE OF (OR INABILITY TO USE) THE BREEZOMETER MATERIALS, AND/ OR PROFESSIONAL SERVICES.
THE CONTENT PROVIDED AND DISPLAYED WITHIN THE BREEZOMETER MATERIALS IS NOT INTENDED TO BE, AND SHALL NOT BE CONSIDERED BY YOU TO BE, A SUBSTITUTE FOR THE TESTING OR REPORTING OF THE CONCENTRATION OF POLLUTION ELEMENTS, INCLUDING
ACTIVE FIRE AND SMOKE POLLUTION ELEMENTS, BY THE APPLICABLE INSTITUTION(S) OR SERVICE PROVIDER(S) AUTHORIZED TO DO SO UNDER APPLICABLE LAWS AND REGULATIONS.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALL BREEZOMETER OR ITS AFFILIATES BE LIABLE UNDER, OR IN CONNECTION WITH, THIS AGREEMENT FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, REVENUE, OR
ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES. THE COMBINED AGGREGATE LIABILITY OF BREEZOMETER AND ITS AFFILIATES UNDER, OR
OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY COMPANY TO BREEZOMETER IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
The foregoing exclusions and limitations shall apply: (i) even if BreezoMeter or its Affiliates have been advised, or should have been aware, of the possibility of losses or damages; (ii) even if any remedy in this Agreement fails
of its essential purpose; and (iii) regardless of the theory or basis of liability.
- Term and Termination.
- The Initial Term and each Renewal Terms (as defined in the PO) shall collectively be referred to as the “Term”.
Either party may terminate this Agreement: (a) immediately upon written notice to the other party, if the other party materially breaches this Agreement and, if curable, fails to cure that breach within thirty (30) days after
receipt of written notice specifying the breach; and/or (b) immediately upon written notice to the other party, if the other party is declared bankrupt, or, in the event an involuntary bankruptcy action is filed against such other
party, it has not taken, within sixty (60) days from service of such action to such party, any action under applicable law for such filed action to be dismissed.
Upon the effective date of termination of this Agreement: (a) Company’s Server Keys will be revoked; (b) all license rights granted to Company hereunder shall terminate and Company shall cease all access to and use of any and all
BreezoMeter Materials; and (c) Company will promptly pay to BreezoMeter any amounts outstanding on such date.
- Any provision of this Agreement that, in order to fulfill the purpose of such provision, needs to survive the termination of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purpose.
- Governing Law and Jurisdiction. If you have entered into a PO with BreezoMeter Inc., this Agreement shall be governed by the laws of the State of New York and all disputes arising out of this Agreement shall be subject
to, and each party hereby consents to, the sole and exclusive jurisdiction of the competent courts located in New York, New York. If you have entered into a PO with BreezoMeter Ltd., this Agreement shall be governed by the laws of the
State of Israel and all disputes arising out of this Agreement shall be subject to, and each party hereby consents to, the sole and exclusive jurisdiction of the competent courts located in Tel Aviv, Israel. Notwithstanding the
foregoing, each party may seek injunctive relief or specific performance in any court worldwide that has jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is hereby disclaimed.
- General. References to BreezoMeter also include BreezoMeter’s Affiliates. This Agreement (including the PO) constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and
all prior or contemporaneous oral or written statements regarding such subject matter. BreezoMeter reserves the right, at BreezoMeter’s discretion, to modify these Terms at any time. Such modification(s) will be effective 10 days
following posting of the modified Terms on the BreezoMeter website, and Company’s use of any part of the Service thereafter means that Company accepts those modifications. BreezoMeter therefore encourages Company to check the website
regularly to see the most current Terms. Neither party may assign this Agreement (in whole or in part) without the prior express written consent of the other party, except that each party may assign this Agreement, in whole or in part,
with written notice to the other party, to an Affiliate or to any successor to or purchaser of all or substantially all of its business and assets relating to the subject matter of this Agreement. Any assignment in breach of this
Section shall be null and void. Subject to the foregoing, this Agreement shall bind and benefit each party and its respective successors and permitted assigns. All notices, consents and other communications required or permitted to be
given under this Agreement will be in writing and delivered by email transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. No failure or delay by either
party in exercising or enforcing any right under this Agreement will operate as a waiver thereof. Any waiver of any provision of this Agreement shall only be valid if in writing. If any court rules that any provision of this Agreement
is invalid, this will not affect any remaining provisions of this Agreement, which shall remain in full force and effect. Except for payment obligations, neither party shall be liable for any failure to perform due to causes beyond its
reasonable control. The relationship of the parties is solely that of independent contractors and neither party has any authority to enter into agreements of any kind on behalf of the other party.
“Affiliate” means any company or other entity which, directly or indirectly, controls a party or is controlled by the party or is under common control with the party. Without limiting the foregoing, control shall be deemed to
exist when a person, organization or entity (i) owns or directly controls more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses, directly or
indirectly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
“BreezoMeter Data” means any type of content and/or data which is part of the service plan agreed between the parties as set out in the PO, and which is accessed via the relevant API on a case by case basis. Such data
includes but is not limited to air quality generated (whether by BreezoMeter or its third party suppliers) and retrieved through Service API Calls.
“BreezoMeter Materials” means all data content within the Service, along with any related Documentation and technology, including but not limited to the BreezoMeter Data, the Service API, the Service Interaction Code, the
Intelligence Platform and the Service itself
“Documentation” means BreezoMeter’s proprietary programming tools and other instructional documentation for the BreezoMeter Materials, in the form generally made available by BreezoMeter for use therewith, and as posted at
https://docs.breezometer.com (or any successor URL designated).
- “Implementation” means Company’s any of products and services, unless otherwise specified in the PO.
"Intelligence Platform" means BreezoMeter's proprietary software product suite that includes a specific set of capabilities which transform environmental data into meaningful actions, for example health recommendations and
highly customizable real-time alerts. The suite can be configured and accessed by either an API or UI.
- “Marks” means trademarks, trade names, logos, design marks, service marks, service names, trade dress, and other business names or brand names.
- “Professional Services” means the professional services detailed in the PO (if any).
“Service” means BreezoMeter’s software that is behind the Service API, and which BreezoMeter will provide hereunder (via a Server Key) for integration or embedding into an Implementation. For clarity, the Service includes the
Intelligence Platform but does not include the Professional Services.
- “Service API” means the application programming interface software that is called or queried under a Service API Call.
- “Service API Call” means a call or query from the Implementation to the Service API, invoked by or on behalf of an End User (as measured by BreezoMeter’s servers).
“Service Interaction Code” means the BreezoMeter’s software code that interacts with the Service, and which BreezoMeter will provide hereunder (via a Server Key) for integration or embedding “as is” into an Implementation and
without any further customization by Company.
Updated: April, 2022