Aegis TurboPlate Express User Agreement

This Aegis TurboPlate Express User Agreement (“Agreement”) is a binding agreement entered into on the date upon which you click “I Agree” after reading the terms below (the “Effective Date”) and is between you and Aegis Cooling Co., Ltd. (“Aegis,” “we” or “us”). This Agreement governs your or your authorized user’s (each an “End User”) access to and use of Aegis’ TurboPlate Express application which, together with any documentation and supporting mobile application, is referred to herein collectively as the “Application”. The Application is licensed, not sold, to you.

By using the Application, you (a) acknowledge that you have read and understand this Agreement; (b) represent that you are 18 years of age or older; (c) agree that to the extent you are registering to enable an End User’s use of the Application and agree to be fully responsible for his or her compliance with the terms of this Agreement; (d) agree to the terms of the Privacy Policy and (e) accept this Agreement and agree that you (and, by extension, the End User) are legally bound by its terms. If you do not agree to the terms of this Agreement, neither you, nor any End User for whom you facilitated access to the Application, may register to use the Application.

1. Registration/Collection and Use of End User Information. You will be required to register to use the Application, and in the course of doing so you will submit information about you for purposes of creating a user profile. By submitting information that identifies you or an End User directly or indirectly, you agree to Aegis’ collection, use and disclosure of that information as described in the Privacy Policy, the terms of which are incorporated by reference into this Agreement. You acknowledge that when you or the End User login to or use the Application, Aegis may use automatic means (including, for example, cookies and web beacons) to collect information about your or the End User’s device and about your or the End User’s activities. By using the Application or submitting information to or through the Application, you and the End User consent to all actions taken by Aegis with respect to your or an End User’s information and User Content (as defined below) in compliance with the Privacy Policy.

2. Application . You agree that all End Users will be required to choose a username and password for the account. You agree that users are entirely responsible for safeguarding and maintaining the confidentiality of the username and password used to access the Application. You authorize Aegis to assume that any person using the Application with your email address is you or is authorized to act for you. You agree to notify us immediately if you suspect any unauthorized use of your account.

3. Your Responsibilities.

(a) You have and will retain sole control of all access to and use of the Application by any individual using your Application logon credentials, including any: (i) information, instructions, or materials posted by or provided by any individual within the Application; and (ii) third-party content accessed via the Application.

(b) You have and will retain sole responsibility for: (i) all information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from you, or from any End User using the Application under your logon credentials, by or through the Application or that incorporates or is derived from the storage, compilation or management of such information, data, or content by or through the Application; (ii) all information, instructions, and materials provided by or on behalf of you or any End User using the Application under your End User’s logon credentials; (iii) your information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services; (iv) the security and use of your or your End User’s Application access credentials; and (v) all access to and use of the Application directly or indirectly by you or any End User using the Application under your logon credentials, with or without your knowledge or consent.

4. Pricing and Payment. At present, there is no charge for using the Application. Aegis reserves the right to charge for access to and use of the Application in the future.

5. User Content.

(a) The Application may allow you to submit, upload, publish or otherwise make available to Aegis content uploaded by you, an End User or others (“User Content”). Any User Content provided by an End User remains your property, or the property of others where applicable. However, by posting User Content within the Application and submitting the User Content through the Application, you grant Aegis a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to use, edit, copy, modify, make derivative works of and distribute (solely at Aegis’ direction) such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Application and Aegis’ business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person.

(b) You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Aegis the license to the User Content as set forth above; and (ii) neither the User Content, nor an End User’s submission, uploading, publishing or otherwise making available of such User Content, nor Aegis’ use of the User Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. We reserve the right, at any time and without prior notice, to remove or disable access to content, including an End User’s User Content or the User Content of others, at our discretion for any reason or no reason. Some of the reasons we may remove or disable access to content may include finding the content objectionable, in violation of these Terms or otherwise harmful to the Application or to our users.

(c) Aegis will exert commercially reasonable efforts to maintain and provide the Application in an error-free manner. You understand that Aegis does not warrant accuracy or a lack of data processing errors.

(d) Whenever you access or use an Application feature that allows you to upload or transmit User Content through the Application you must comply with the standards of this Agreement.

6. Prohibited Uses of Application.

(a) You agree that neither you nor your End User will access (or attempt to access) the Application by any means other than through the website platform or any mobile app interface that is provided by Aegis. You agree that neither you nor your End User will copy or scrape, through manual or automated means, any data from the Application apart from your or your End User’s use of the data required for, or useful for use consistent with, the intended use of the Application. You agree that neither you nor your End User will engage in any activity that interferes with or disrupts the Application (or the servers and networks which are connected to the Application). You agree that neither you nor your End User will reproduce, duplicate, copy, sell, trade or resell the Application for any purpose. You agree that you and your End User are solely responsible for (and that Aegis has no responsibility or liability to you or to any third party for) any breach of your obligations under this Agreement and for any consequences (including any loss or damage which Aegis may suffer) of any such breach.

(b) You agree that neither you nor your End User shall transmit to Aegis or upload to or through the Application (whether as User Content or otherwise) any Harmful Code or use or misappropriate the Application for your own commercial gain. “Harmful Code” shall mean any software (sometimes referred to as “viruses,” “worms,” “Trojan horses,” “time bombs,” “time locks,” “drop dead devices,” “traps,” “access codes,” “cancelbots” or “trap door devices”) that: (a) is designed to damage, disrupt, disable, harm, impair, interfere with, intercept, expropriate or otherwise impede in any manner, any data, storage media, program, system, equipment or communication, based on any event, including for example but not limited to (i) exceeding a number of copies, (ii) exceeding a number of users, (iii) passage of a period of time, (iv) advancement to a particular date or other numeral, or (v) use of a certain feature; or (b) would enable an unauthorized person to cause such result; or (c) would enable an unauthorized person to access another person’s information without such other person’s knowledge and permission.

(c) Without limiting the foregoing and by way of example only, neither you nor your End User shall:

  1. Impersonate another person (via the use of an email address or otherwise) or otherwise misrepresent yourself or the source of any email.

  2. Transmit another’s intellectual property or other proprietary or confidential information without such owner’s or licensor’s permission.

  3. Interfere with other Aegis users’ enjoyment of the Application.

  4. Create user accounts by automated means or under false or fraudulent pretenses.

  5. Sell, trade, resell or otherwise exploit for any unauthorized commercial purpose, or transfer, any Aegis account.

  6. Modify, adapt, translate, or reverse engineer any portion of the Application.

  7. Reformat or frame any portion of the web pages that are part of the Application without Aegis’ explicit written permission.

  8. Create multiple Aegis accounts without permission.

  9. Bypass any limitations or suspensions of functionality.

  10. Provide false information.

7.  License Grant. Subject to the terms of this Agreement, Aegis grants to you and your End User a limited, non-exclusive, non-sublicensable, nontransferable and revocable license to access and use the Application for the Term (as defined in Section 15 below) strictly in accordance with the Application’s documentation and solely for you and your End User’s internal use of the Applicant and the Application’s output. For the avoidance of doubt, this license does not entitle you to distribute or re-sell the Application or any data accessed through the Application. 

8.  License Restrictions. Neither you nor your End User shall:

  (a)  copy the Application, except as expressly permitted by this Agreement;

(b)  modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

     (c)  reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;

 

     (d)  remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

 

     (e)  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, the data accessed through the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or

 

     (f)  remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.

  

9.  Reservation of Rights. The Application and its entire contents (other than materials you submit), features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Aegis, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application or the data accessible through the Application under this Agreement, nor do you acquire any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and in accordance with the Application’s documentation. Aegis reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you and your End User in this Agreement.

You or a third party own all content that you, your End User or individual using the Application under your logon credentials submit to the Application, and Aegis disclaims ownership of or responsibility for such content. You hereby irrevocably grant all rights and permissions in or relating to such content as is necessary or useful to Aegis to enforce this Agreement and exercise Aegis’ rights and perform Aegis’ obligations hereunder.

 

10. You Do Not Financially Benefit from Application. You acknowledge and agree that we may generate revenues, increase goodwill or otherwise increase our value from your use of the Application, including, by way of example and not limitation, through the sale of advertising, sponsorships, promotions and usage data and, except as specifically permitted by us in these Terms or in another agreement you enter into with us, you will have no right to share in any such revenue, goodwill or value whatsoever. You further acknowledge that, except as specifically permitted by us in these Terms or in another agreement you enter into with us, you (i) have no right to receive any income or other consideration from any User Content or your use of any content made available to you on or through the Application, including in any User Content created by you, and (ii) are prohibited from exercising any rights to monetize or obtain consideration from any User Content within the Application or on any third party service.

12.  Updates. Aegis may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Aegis has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. If you or your End User access the Application via a mobile application, and depending upon your mobile device settings, when your or the End User’s mobile device is connected to the internet either:

 

    (a)  the Application will automatically download and install all available Updates; or

 

    (b)  the End User may receive notice of or be prompted to download and install available Updates.

 

To the extent downloadable software is provided in connection with the Application, you shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

 

13.  Third-Party Materials. The Application may display, include, or make available other users’ and other third-party content (including data, information, Applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Aegis is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Aegis does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you and your End User, and you and your End User access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

14. Representations and Warranties.

You represent and warrant that:

(a) you and your End User are and will be in compliance and will comply with all laws applicable to your and your End User’s use of the Application;

(b) you own or otherwise have and will have the necessary rights and consents in and relating to all content that you, the End User or any individual using the Application under your logon credentials submit to the Application so that, as received by Aegis and stored and shared within the Application, such content does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, privacy right or other rights of any third party or violate any applicable law;

(c) you have the right and authority to enter into this Agreement; and

(d) your entering into this Agreement with Aegis and your and your End User’s performance of your obligations under the Agreement do not and will not conflict with or result in any breach or default under any other agreement to which you are subject.

15.  Term and Termination.

 

     (a)  The term of this Agreement commences on the Effective Date and will continue in effect until terminated by Aegis, which Aegis can effect by disabling or discontinuing the Application or requiring that you agree to different terms and conditions for using the Application (the “Term”).

 

     (b)  You may terminate this Agreement by ceasing to use, or having your End User cease to use, the Application and, if you have downloaded the Application in mobile app form, deleting the Application and any copies thereof from your or the End User’s mobile device. If you no longer want to use our Application, and would like your account deleted, contact us at: info@aegiscooling.com. We will provide you with further assistance and guide you through the process. Once you choose to delete your account, you will not be able to reactivate your account or retrieve any of the content or information you have added.

 

     (c)  Aegis may terminate this Agreement at any time without notice if it ceases to support the Application, which Aegis may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically, and Aegis reserves the right to disable your or any individual’s access to the Application, without any notice to you for any or no reason, including if you violate any of the terms and conditions of this Agreement. This Section 15(c) does not limit any of Aegis’ other rights or remedies, whether at law, in equity, or under this Agreement.

 

     (d)  Upon termination:

 

(i)  all rights granted to you under this Agreement will also terminate; and

(ii)  you and your End User must cease all use of the Application and, if applicable, delete all copies of the Application from your mobile device and account.

 

     (e)  Termination will not limit any of Aegis’ rights or remedies at law or in equity. Moreover, upon termination or expiration of this Agreement Sections 5, 6, 8, 9, 10, 13, 14, 15(d), 15(e), 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 and any other provision of this Agreement that by its terms would be expected to survive termination or expiration of this Agreement will survive termination or expiration of this Agreement.

 

17.  Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO YOU “AS IS,” “AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AEGIS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. YOU AGREE THAT AEGIS CANNOT CONTROL AND IS NOT RESPONSIBLE FOR THE BEHAVIOR AND COMMUNICATIONS OF THIRD PARTIES, INCLUDING OTHER USERS. WITHOUT LIMITATION TO THE FOREGOING, AEGIS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, PLATFORMS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. AEGIS TAKES NO RESPONSIBILITY WHATSOEVER FOR THE INFORMATION YOU HAVE UPLOADED TO THE APPLICATION AND SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, OR LOSS OF SUCH INFORMATION, OR FAILURE TO STORE ANY OF SUCH INFORMATION. NOR IS AEGIS RESPONSIBLE FOR LOSS OF INFORMATION THROUGH THE ACTION OF ANY THIRD PARTY OR BECAUSE OF CIRCUMSTANCES BEYOND AEGIS’S CONTROL.

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO IT COULD BE THAT SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS DO NOT APPLY TO YOU.

 

18.  Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AEGIS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PRINCIPALS OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION FOR:

 

    (a)  PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED ANY AMOUNTS ACTUALLY PAID BY YOU TO AEGIS FOR USE OF THE APPLICATION DURING THE ONE (1) YEAR PERIOD PRIOR TO THE EVENT THAT GIVES RISE TO YOUR CLAIM OF LIABILITY ON AEGIS’S PART.

 

AEGIS IS NOT RESPONSIBLE OR LIABLE FOR ANY DELAY OR FAILURE OF PERFORMANCE CAUSED IN WHOLE OR IN PART BY YOUR DELAY IN PERFORMING, OR FAILURE TO PERFORM, ANY OF YOUR OBLIGATIONS UNDER THIS AGREEMENT. THE APPLICATION DOES NOT REPLACE THE NEED FOR YOU TO MAINTAIN REGULAR DATA BACKUPS OR REDUNDANT DATA ARCHIVES. AEGIS HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF YOUR DATA.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR AEGIS WAS ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

 

19.  Indemnification. You agree to indemnify, defend, and hold harmless Aegis and its affiliates and their respective officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees (collectively “Claims”), arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through the Application. Aegis reserves the right to assume the exclusive defense and control of any matter subject to immediate indemnification.

 

20. Geographic Restrictions. Aegis makes no claims that the Application or any of its content are accessible or lawful outside of the United States. Access to an use of the Application might not be legal by certain persons or in certain countries. If you access the Application from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. Furthermore, by agreeing to the terms of this Agreement you consent to the processing of your personal data in the United States.

21.  Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect; provided, however, that if any fundamental term or provision of this Agreement is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable.

 

22.  Governing Law & Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of South Carolina, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively either in federal court in the United States District Court for the District of South Carolina or in the state courts of the State of South Carolina in Spartanburg County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

23.  Entire Agreement. This Agreement, our Privacy Policy and any other terms that you are presented with while navigating the Application and engaging in transactions through the Application constitute the entire agreement between you and Aegis with respect to the Application and supersede all prior or contemporaneous understandings and agreements outside of this Agreement or outside of the Application, whether written or oral, with respect to the Application.

 

24.  Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.