Terms of Use


TowerOn and the Customer named in the Order Form that incorporates either by reference or attachment these terms and conditions (the “End-User Terms”, and together with the Order Form, the “Agreement”) agree as follows:

  1. DEFINITIONS.

The following terms have the meanings set forth below, unless otherwise indicated:

  1. “Affiliate” means an entity that controls, is controlled by or is under common control with another entity, where “control” refers to ownership or the right to direct more than 50% of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority of another entity.
  2. "Applicable Privacy Laws" means, in relation to any Personal Information that is processed in the provision of the SaaS Services, the applicable legislation on the protection of identifiable individuals, including where applicable the EU Data Protection Directive 95/46/EC, (as may be superseded by Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data) and/or other applicable data protection or national/federal or state/provincial/emirate privacy legislation in force, including where applicable, statutes, decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, data protection authorities and other applicable government authorities.
  3. “Auxiliary Program” means any software that TowerOn makes available to Customer for purposes of facilitating access to, operation of, and/or use with, the Product.
  4. “Customer Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User and received by the SaaS Services.
  5. “Documentation” means the then-current technical specifications for a Product contained in the user and system documentation made generally available to TowerOn customers through the TowerOn website and otherwise.
  6. “Deliverable” means all works of authorship, formulas, algorithms, databases, scripts, modifications, configurations, logos, symbols, designs, and other inventions (whether patentable or not) that TowerOn authors, makes, conceives, reduces to practice, develops or otherwise creates, either alone or jointly with others, while performing customizations.
  7. “TowerOn Materials” all documentation, materials, methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how embodied in the Products, including Deliverables, or that TowerOn may develop or supply in connection with the Products or Deliverables.
  8. “TowerOn Offerings” means the Products.
  9. “TowerOn Properties” means the Products, Documentation, Deliverables, and TowerOn Materials, including all copies, portions, compilations, selections, arrangements, adaptations, modifications, extracts, and improvements thereof, and all derivative works of any of the foregoing.
  10. “Intellectual Property Rights” means (i) patents and patent rights, rights of priority, mask work rights, copyrights, moral rights, trade secrets, know-how and any other form of intellectual or industrial property rights; (ii) any other protected rights or assets and any licenses and permissions in connection therewith; (iii) trademarks, trade names, logos, service marks, designs and other designations of source; in each case (i), (ii) or (iii), recognized in any country or jurisdiction of the world, and whether or not registered or able to be registered and for the full period thereof, and all extensions and renewals thereof, and all applications for registration in connection with the foregoing.
  11. “Open Source Software” means any open source, community, or other free code or libraries of any type, including, without limitation, any code which is generally made available on the internet without charge, such as, for illustrative purposes only, any code licensed under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or other licenses approved by the Open Source Initiative at https://opensource.org/licenses.
  12. “Maintenance” means the Product updates and technical support services generally made available to TowerOn customers who have purchased Maintenance.
  13. “Order Form” means each TowerOn order form, product schedule, renewal quote or other order document signed by the duly authorized representatives of both parties, or TowerOn quote which by its terms is accepted by the issuance of a purchase order by Customer or its authorized representative, which identifies the Product, Maintenance ordered by Customer.
  14. “Personal Information” means any information that by itself or in combination does or can identify a specific individual or as defined in the Applicable Privacy Laws.  Personal Information includes Customer Data.  
  15. “Privacy Policy” means the TowerOn Privacy Policy.
  16. “Products” means the SaaS or Private SaaS Subscription.
  17. “Restricted Information” means any confidential or personal information that is protected by law and that requires the highest level of access control and security protection, whether in storage or in transit. Restricted Information includes, but is not limited to: electronic protected health information (ePHI as defined by the HIPAA and HITECH Acts), credit, debit or payment card information regulated by the payment card industry, information subject to the Children’s Online Privacy Protection Act of 1998, 15 U.S.C. 6501-6505, and information classified as “sensitive data” (or similar term) under Applicable Privacy Laws.
  18. “SaaS Subscriptions” means the hosted services provided by or on behalf of TowerOn to Customer pursuant to an Order Form, including the electronic dashboards and software functionality provided by the SaaS Subscription.
  19. “Private SaaS Subscriptions” means an isolated single tenant SaaS Subscription.
  20. “Term” means the period for Customer’s access to the SaaS or Private SaaS Subscriptions set forth in an Order Form.
  21. “Subsidiary” means a subsidiary which is greater than fifty (50%) percent owned by a party.
  22. “Users” means Customer or a Subsidiary’s employees and Third-Party Users (as defined in Section 4), if applicable, for whom use and access has been purchased, or obtained for Evaluation.
  1. AGREEMENT; ORDER OF PRECEDENCE.

The Agreement governs the use by Customer and its Users of the TowerOn Offerings. Each Order Form that incorporates these End-User Terms will constitute a separate Agreement, and govern its own subject-matter and not any other subject-matter of these Terms. In the event of a conflict between an Order Form and the End-User Terms, the End-User Terms will take precedence, except for (a) any matter that these End-User Terms expressly permit to be established or modified in an Order Form, or (b) any specific provision in an Order Form that expresses an intent to supersede a specified provision in these End-User Terms. Customer agrees that the terms of this Agreement supersede the terms of any purchase order issued by Customer to accept a TowerOn quote or for TowerOn Offerings provided under an Order Form or under this Agreement. 

  1. PARTNER TRANSACTIONS.

The TowerOn End-User Terms govern the use of any TowerOn Offering purchased by an end-user in a resale transaction authorized by TowerOn (an “End-User”). By its use of the TowerOn Offering, such End-User agrees to and is bound by the TowerOn End-User Terms, which are incorporated by reference into the contract for such resale transaction as if such End-User was a Customer hereunder.

  1. THIRD PARTY USERS.

Customer may designate its third-party contractor or vendor as a “User” as required to facilitate Customer’s use of the Products provided under this Agreement for Customer’s internal business operations, provided that use and access by any Third-Party User must be under obligation of non-disclosure consistent with Section 14 (Confidentiality), solely for Customer’s or its Subsidiary’s benefit, and otherwise subject to the terms of this Agreement. Customer accepts responsibility for the acts or omissions of such Third-Party Users as if they were its own, and agrees to enforce (and to enable TowerOn to enforce) the terms of this Agreement against Third-Party Users.

  1. LICENSE GRANT.

The license and use rights in the Product granted hereunder are subject to compliance by Customer and its Users with the TowerOn End-User Terms and the applicable Order Form, and may be suspended or terminated as set forth in Sections 8 (Payment) or 16 (Termination).

  1. Private SaaS Subscription. TowerOn grants Customer, during the Term, a limited, non-exclusive, non-transferable right for its Users to access and use the isolated single tenant SaaS Subscription including, without limitation, the dashboards, reports software functionality for Customer through its use of the Private SaaS Subscription, solely by Customer and its Users within the territory, scope and type of use set forth in the applicable Order form to process Customer’s data for Customer’s internal business purposes, in accordance with the Documentation and this Agreement.
  2. SaaS Subscription. TowerOn grants Customer, during the Term, a limited, non-exclusive, non-transferable right for its Users to access and use the SaaS Subscription including, without limitation, the the dashboards, reports software functionality for Customer through its use of the SaaS Subscription, solely by Customer and its Users within the territory, scope and type of use set forth in the applicable Order Form to process Customer’s data for Customer’s internal business purposes, in accordance with the Documentation and this Agreement.
  3. Open Source Software. Notwithstanding the foregoing license grants, this Agreement is not meant to change or supersede the terms of any Open Source Software license applicable to any portion of the TowerOn Products.  To the extent that the terms of any such license applicable to any portion of the TowerOn Products conflict with the license grants set forth herein, the terms of such Open Source Software license will prevail.
  1. MODIFICATIONS AND SUPPORT.
  1. Modifications. TowerOn reserves the right, in its sole discretion, to make changes to the SaaS or Private SaaS Subscription, Acceptable Use Policy, Privacy Policy and other published policies, including, without limitation, changes required to comply with applicable law. It is Customer’s responsibility to regularly check the TowerOn website for updates. TowerOn may make new applications, tools, features or functions available from time to time through the SaaS or Private SaaS Subscription, the use of which may be contingent upon Customer’s agreement to additional terms.  
  2. Maintenance. TowerOn will provide Maintenance for Products pursuant to the applicable support policies and as specified in the relevant Order Form, subject to the payment of any support and/or Maintenance fees set forth therein, including reinstatement fees (if applicable) as specified in the support policies posted in the TowerOn website. Notwithstanding the terms in Section 6.1, if TowerOn changes its support policies to materially reduce TowerOn’s obligations during a paid Maintenance term, TowerOn will make commercially reasonable efforts to inform Customer thirty (60) days ahead of the effective date of such changes. 
  1. EVALUATION OF PRODUCTS. This Section 7 only applies if the Customer has been provided evaluation access to the Products, through a free trial to a SaaS Subscription (“Evaluation Access”).  Evaluation Access to the Products is subject to all restrictions set forth in this Agreement. In addition, Evaluation Access is provided for the sole and exclusive purpose of enabling Customer to evaluate the Product and will not be put into productive use or included as part of Customer’s business processes in any manner, unless and until a license or subscription is purchased by Customer. Evaluation Access is provided “AS IS”, with no warranties of any kind, express or implied. Certain features may not be available for use during the period of Evaluation Access. Evaluation Access will automatically time-out at the end of the relevant evaluation period without further notice, and may be terminated by TowerOn at any time and for any reason.  
  2. PRICING, INVOICES, AND PAYMENTS.
  1. Pricing and Invoicing.  Prices and invoice instructions for the TowerOn Offerings and Maintenance are set forth in the applicable Order Form. Fees may be invoiced in advance, as set forth in the applicable Order Form. Except as provided under Section 16.3, Orders may not be cancelled or reduced during the Term.
  2. Payments.  Unless otherwise specified in an Order Form, Customer will pay TowerOn the amounts set forth on any invoice issued pursuant to this Agreement in the specified currency within thirty (30) days of the date of the invoice. Payment obligations for all TowerOn Offerings are non-cancelable, and fees are non-refundable except as otherwise provided in this Agreement.  Unless otherwise provided in an Order Form, TowerOn may impose a late payment charge not to exceed the maximum rate allowed by law. If Customer fails to pay any Product, Subscription fee due under an Order Form or this Agreement, without limitation of any of its other rights or remedies, TowerOn may suspend access until TowerOn receives all past due amounts from Customer. Customer understands that one or more invoices may be issued under each Order Form, that multiple Order Forms may be executed under these TowerOn End-User Terms, that Customer shall have no right to set-off, deduct from or reduce payments owed under any Order Form in respect of any claim against or obligation of TowerOn whatsoever, and that Customer’s obligation to pay for products or services ordered under one Order Form is separate from, and not contingent on delivery or performance of other TowerOn products or services ordered under any other Order Form. In the event of a good faith dispute for payment on any invoice, Customer will, within fifteen (15) days of receipt of the invoice, notify TowerOn in writing of the dispute and the parties will use commercially reasonable efforts to resolve such dispute. Undisputed amounts remain payable as provided herein and in the relevant Order Form.
  3. No Requirement for Purchase Order. Customer acknowledges that Customer may provide a purchase order number or copy of its purchase order to TowerOn for Customer’s administrative convenience, and that TowerOn has the right to issue an invoice and collect payment without a corresponding purchase order. If Customer issues a purchase order, TowerOn hereby rejects and Customer hereby retracts any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer and conditions are solely based on the terms and conditions of this Agreement and the applicable Order Form, as offered by TowerOn. On request, TowerOn will reference the purchase order number on its invoices (solely for administrative convenience), provided the purchase order references the Order Form and is received reasonably prior to the date of the invoice. Customer agrees that purchase orders do not have to be signed by Customer to be valid and enforceable. 
  4. Delivery. Products are made available by electronic delivery. Products are deemed to be delivered and accepted on issuance of the administrative account access or when electronic notice is sent that the purchased Products are available.
  1. TAXES AND DUTIES.

Customer will pay all sales, seller’s use, VAT, GST or similar taxes (“Transaction Taxes”) due under this Agreement, except for taxes based on TowerOn net income, unless Customer provides TowerOn with a properly completed exemption certificate. Transaction Taxes will be separately stated on a TowerOn invoice. Except as specifically identified in an Order Form, all prices are exclusive of all taxes, duties, withholdings and other governmental assessments.If Customer is required to pay any such taxes to taxing authorities, directly or through withholding obligations, Customer will deduct the amount of such taxes from any amounts due to TowerOn hereunder and promptly pay that amount to the relevant taxing authority. Customer will provide TowerOn with documentation evidencing the payment or withholding of any such taxes to the proper taxing authorities.

  1. OWNERSHIP.  
  1. General. Customer acknowledges and agrees that this is not an agreement for custom development or “work for hire”, and as such, Customer will not acquire any ownership rights in the TowerOn Properties.  
  2. Feedback. As between TowerOn and Customer, all right, title and interest in the TowerOn Properties, and all suggestions, ideas and feedback proposed by Customer regarding the TowerOn Properties, including all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by TowerOn or its licensors, as applicable. Customer hereby does and will irrevocably assign to TowerOn all evaluations, ideas, feedback and suggestions made by Customer to TowerOn regarding the TowerOn Properties (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.  
  3. Customer Data.  As between TowerOn and Customer, all right, title and interest in the Customer Data and all Intellectual Property Rights therein, belong to and are retained solely by Customer. Customer hereby grants to TowerOn a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for TowerOn to provide any TowerOn Offerings to Customer, subject to compliance by TowerOn with its confidentiality obligations under Section 14 (Confidentiality).
  1. RESTRICTIONS.

Customer will not directly or indirectly, and will not permit any User, Affiliate, or third party, to: (i) use the TowerOn Properties in contravention of any applicable laws or government regulations, including, without limitation, applicable privacy laws or in violation of this Agreement; (ii) except and to the extent specifically permitted by applicable law, reverse engineer, decompile, disassemble or otherwise attempt to derive or gain access to the object code, source code or underlying ideas, methodologies or algorithms of the TowerOn Properties; (iii) modify, adapt, translate, or create derivative works based on any element of the TowerOn Properties; (iv) sublicense, rent, lease, distribute, publish, sell, resell, assign, or otherwise transfer its rights to use any Product or Deliverable, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (v) commercially exploit the Products or Deliverables; (vi) use the Products or Deliverables for any purpose other than their intended purposes, including but not limited to the purchase or mining of cryptocurrencies whether or not blockchain technologies are in use; (vii) introduce any Open Source Software into any Product or Deliverable; (viii) disclose passwords, usernames, or other account information to any third party, except an authorized Third Party User; or (ix) access or use any Product or Deliverable for competitive analysis or to design, create, offer or build a product or service that is competitive with any TowerOn product or service or that uses ideas, features, or functions similar to a TowerOn product or service. Customer will not (a) make the SaaS or Private SaaS Subscription or any portion thereof available for use, access, display, searching or retrieval by, or on behalf of, any third party, (b) make the SaaS or Private SaaS Subscription available in any “public” or “free” area or area accessible on the worldwide web or (c) violate any applicable privacy laws.


  1. WARRANTIES.  
  1. Mutual Warranty.  Each party represents, warrants and covenants that: (i) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (ii) its acceptance of and performance under this Agreement will not breach any oral or written agreement with any third party or any obligation owed by it to any third party.
  2. Limited Warranties and Remedies.  The following limited warranties apply only to the extent that Customer has purchased the applicable TowerOn Offering:
  3. TowerOn Products.  TowerOn warrants that the Products will operate substantially in compliance with the applicable Documentation for a period of (90) days after notice of availability during the Subscription Term in the case of SaaS or Private SaaS Services, provided that have not been modified or added to other than by TowerOn. If the Product does not perform as warranted during the warranty period, TowerOn will undertake, at its sole option and as Customer’s exclusive remedy for breach of this warranty, to (i) correct the non-conformance. If TowerOn determines that it is not commercially reasonable or possible to correct a material non-conformity within a reasonable time from receipt of written notice from Customer detailing the warranty claim, the Order Form for the affected Product will be cancelled and TowerOn will refund any unused prepaid fees for the affected Product.
  1. SaaS and Private SaaS Subscription. Customer acknowledges that factors such as changes by Customer to its community settings, and incorrect data received by TowerOn from Customer, may have a material impact on the accuracy, reliability and/or results, and TowerOn shall not be responsible for any such factors beyond its reasonable control.  Customer shall be responsible for all content or materials originating from the Customer or its Users. Customer shall comply with any instructions and/or specifications provided to Customer by TowerOn for the relevant SaaS or Private SaaS Subscription. Customer shall not alter the source code or the SaaS or Private SaaS Subscription to collect and/or transmit personally identifiable information (“PII”).

Customer acknowledges that the foregoing are Customer’s sole and exclusive remedies for breach of the warranties set forth in this Section.

  1. WARRANTY DISCLAIMER.  except for the express warranties specified above in section 12.1 and 12.2, toweron disclaims all other warranties, whether written, oral, express, implied, or statutory, including without limitation the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. toweron does not warrant that: (a) the use of any toweron product or deliverables will operate in combination with any other hardware, software, system or data; (b) the products or deliverables or any information obtained through the products or deliverables will meet client’s requirements or expectations; (c) any stored data will be accurate or reliable; or (d) the products or deliverables will be uninterrupted, error-free or virus-free, or that errors or defects therein will be corrected. toweron offerings may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. toweron is not responsible for any delays, delivery failures, or other damages resulting from such problems. 
  1. CLIENT INDEMNITY.
  1. Use Claims. Customer will, at its expense, defend TowerOn, its Affiliates, licensors and their respective officers, directors and employees (the “TowerOn Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (i) a claim or threat that the Customer Data infringes, misappropriates or violates any third party’s privacy or Intellectual Property Rights; (ii) Customer’s use or alleged use of the Product or Deliverables other than as permitted under this Agreement; (iii) legal proceedings for the purpose of obtaining Customer Data from TowerOn.  Customer will pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the TowerOn Indemnified Parties from any such Third-Party Claim.
  2. Procedures. Customer’s obligations under this Section 13 are conditioned upon (i) being promptly notified in writing of any Third-Party Claim under this Section, (ii) having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (iii) the TowerOn Indemnified Parties providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such Third-Party Claim. In no event will a TowerOn Indemnified Party settle any claim without Customer’s prior written approval. The TowerOn Indemnified Party may, at its own expense, engage separate counsel to advise it regarding a Third-Party Claim and to participate in the defense of the Third-Party Claim, subject to the Customer’s right to control the defense and settlement.
  1. CONFIDENTIALITY.
  1. Definition of Confidential Information. “Confidential Information” means any and all non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is designated confidential or proprietary, or that a reasonable person should understand is confidential or proprietary. Confidential Information includes, but is not limited to: the terms of this Agreement, information related to either party’s technology, products, know-how, trade secrets, whether or not patentable or copyrightable, specifications, customers, business plans, pricing information, promotional and marketing activities, finances and other business affairs, TowerOn Properties and anything else created or developed by TowerOn in connection with this Agreement and the TowerOn Offerings. Customer will not remove or destroy any proprietary markings or restrictive legends placed upon or contained in the TowerOn Properties. 
  2. Nondisclosure Obligations. The Receiving Party will not use the Confidential Information of the Disclosing Party for any purpose other than as necessary to fulfill its obligations or to exercise its rights under this Agreement, and by TowerOn to improve the TowerOn Offerings (the “Purpose”). The Receiving Party will not disclose Confidential Information of the Disclosing Party to any third party; provided that the Receiving Party may disclose Confidential Information to its partners, officers, directors, employees, contractors, Affiliates, agents, advisors, or representatives who need access to such Confidential Information for the Purpose and who are subject to written confidentiality obligations at least as stringent as the obligations set forth in this Section 14.  Each party accepts responsibility for the actions of its partners, officers, directors, employees, contractors, Affiliates, agents, advisors and representatives, and will protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but with no less than reasonable care. The Receiving Party will promptly notify the Disclosing Party upon becoming aware of a breach or threatened breach hereunder, and will cooperate with any reasonable request of the Disclosing Party in enforcing its rights. 
  3. Exceptions to Confidential Information. “Confidential Information” does not include information which: (i) is known by the Receiving Party prior to receipt from the Disclosing Party, without any obligation of confidentiality; (ii) becomes known to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) lawfully becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, but only after it notifies the Disclosing party (if legally permissible) to enable the Disclosing party to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party’s expense.
  4. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
  5. Use of Aggregate or Anonymized Data. Notwithstanding anything else in this Agreement or otherwise, TowerOn may, in accordance with Applicable Privacy Laws, monitor use of the SaaS or Private SaaS Subscription by its customers and use the data in the aggregate in the pursuit of its legitimate commercial interests, including for industry analysis, benchmarking, analytics, and marketing. Customer agrees that TowerOn may collect, use and disclose such information that does not incorporate Customer Data or Personal Information, or otherwise identify Customer or its Users.
  1. LIMITATION OF LIABILITY.
  1. In no event will the collective aggregate liability of TowerOn, its affiliates and licensors, arising out of or related to this agreement, whether in contract, tort (including negligence), product liability, or any other legal or equitable theory, exceed the fees paid by customer for the TowerOn offerings giving rise to the liability in the twelve months preceding the incident.
  2. In no event will TowerOn be liable for (a) incidental, indirect, special, punitive, exemplary or consequential damages; or any damages for lost data, business interruption, lost profits, lost revenue or lost business, arising out of or in connection with this agreement; or (b) loss of or damage to customer’s data from any cause, including without limitation loss of use, revenues, profits or savings, systems or business interruption or disruption, even if TowerOn knew or should have known of the possibility of such damages. Except at its option as set forth in section 12.2, TowerOn will not be liable for cost of procurement of substitute goods or services. The foregoing limitations apply even if any remedy fails of its essential purpose.
  3. TowerOn does not limit or exclude its liability for fraudulent misrepresentation, or any other liability to the extent that such liability cannot be excluded or limited by applicable law.
  1. TERM AND TERMINATION.
  1. TowerOn End-User Terms.  The TowerOn End-User Terms may be updated from time to time by TowerOn, provided that no such update or modification will apply to Order Forms previously executed between the parties.  
  2. Term of Order Forms.  Each Order Form incorporating the TowerOn End-User Terms begins on its effective date and, unless earlier terminated under Section 16.3, continues in effect through the Term set forth therein, the Service Period as defined therein.
  3. Termination for Cause. Either party may terminate any Order Form incorporating the TowerOn End-User Terms in whole or in part, for cause (i) on 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period (or immediately if the material breach is not capable of being remedied); or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or an assignment for the benefit of creditors. In addition, TowerOn may terminate any or all Order Forms with Customer incorporating these TowerOn End-User Terms, on written notice in the event (A) Customer fails to pay any amounts due hereunder, and such failure continues more than 20 days after written notice by TowerOn thereof; or (B) Customer infringes TowerOn’s Intellectual Property Rights, including without limitation through exploitation of a TowerOn Offering in excess of the license to use or access  granted in this Agreement, including any limitation on scope, nature, type, term, purpose, consumption, or users..

Customer is solely responsible for its actions and the actions of its Users.  

  1. Effect of Termination or Expiration of Agreement.   
  1. Termination of Order Form. On termination or expiration of an Order Form, Customer’s license or subscription to the TowerOn Product purchased thereunder will terminate and Customer and Users will immediately cease to use SaaS or Private SaaS Subscription and either uninstall or destroy any Auxiliary Programs. TowerOn will make any Customer Data stored in the SaaS or Private SaaS Subscription available on request by Customer in the format in which it is stored in the SaaS Subscription for 45 days following the effective date of termination. After such 45-day period, TowerOn will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. For the avoidance of doubt, except in the case of termination following Customer’s infringement of Products as provided in Section 16.3 above, termination of one Order Form will not terminate any other Order Form, or the TowerOn terms (including the End-User Terms incorporated therein.
  2. Refund or Payment upon Termination. Customer will pay TowerOn any unpaid fees and expenses covering the remainder of the term of such terminated TowerOn Offering. Notwithstanding the foregoing, if an Order Form is terminated by Customer in accordance with Section 16.3 (Termination for Cause), TowerOn will refund Customer any unused prepaid fees for the TowerOn Offering terminated.  
  1. Survival. The following provisions will survive expiration or termination of this Agreement: (i) any payment obligations of Customer hereunder; (ii) 8 (Pricing, Invoicing, and Payments), 9 (Taxes and Duties), 11 (Restrictions), 13 (Client Indemnity), 14 (Confidentiality), 15 (Limitation of Liability and Damages), 16 (Term and Termination), 21 (Notices), 23 (Governing Law), and (iii) any rights or obligations which are expressed to, or by their nature, will survive. The expiry or termination of this Agreement does not affect any rights which accrued before the date of expiry or termination.
  1. FORCE MAJEURE. Except for Customer’s payment obligations hereunder, neither party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism (whether actual or threatened), riot or civil unrest, failure of electrical, Internet, co-location or telecommunications service, non-TowerOn applications, denial of service or similar attacks, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, epidemics, quarantines, or energy crises. 
  2. ASSIGNMENT.  Neither party may transfer or assign this Agreement, in whole or in part, without the other’s prior written consent. A transfer or assignment upon a change of control, through a merger, consolidation, reorganization, operation of law or otherwise, will be deemed a transfer or assignment for purposes of this Agreement that requires the other party’s prior written consent.  Notwithstanding the foregoing, TowerOn may, without Customer’s consent assign this Agreement or any Order Form or agreement incorporating these End-User Terms, to any of its Affiliates, or to an entity who acquires all or substantially all of its business or assets, or in connection with a change in control of TowerOn (through merger, consolidation, reorganization, operation of law or otherwise). Any assignment in violation of this Section will be void ab initio and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns. 
  3. COMPLIANCE WITH LAWS.
  1. TowerOn will comply with all laws and regulations that apply to its provision of the TowerOn Offering. However, TowerOn is not responsible for compliance with any laws or regulations that apply to Customer or Customer’s industry that are not generally applicable to information technology service providers. TowerOn does not determine whether Customer Data includes information subject to any specific law or regulation. All Security Incidents are subject to the Security Incident notification terms of Section 20 below.
  2. Customer must comply with all laws and regulations applicable to its use of the TowerOn Offerings, including laws related to privacy, data protection and confidentiality of communications. Customer is responsible for implementing and maintaining privacy protections and security measures while it, its users or its employees use the Products.
  1. DATA PROTECTION AND SECURITY.
  1. As between TowerOn and Customer, Customer is the data controller of the Personal Information and TowerOn shall process Personal Information only as a data processor acting on behalf of Customer in order to perform its obligations under this Agreement.
  2. TowerOn Inc and its Subsidiaries will process Personal Information in accordance with the terms of this Agreement and its Privacy Policy. The parties agree that the Customer’s complete and final instructions are set out in this Agreement. Processing outside the scope of these instructions (if any) will require prior written agreement between Customer and TowerOn with additional instructions for processing. In the event of a conflict between the terms of this Agreement and the Privacy Policy, the terms of this Agreement will control with respect to the TowerOn Offering being purchased under this Agreement.
  3. TowerOn has implemented and will maintain and follow appropriate technical and organizational measures intended to protect Personal Information against accidental, unauthorized or unlawful access, disclosure, damage, alteration, loss, or destruction. Notwithstanding the above, Customer is responsible for its secure use of the SaaS or Private SaaS Subscription, including securing its account authentication credentials, protecting the security of Personal Information when in transit to and from the SaaS or Private SaaS Subscription and taking any appropriate steps to securely encrypt or backup any Personal Information uploaded to the SaaS or Private SaaS Subscription.
  4. If TowerOn becomes aware of any unlawful access to any Personal Information stored on TowerOn equipment or in a TowerOn facility, or unauthorized access to such equipment or facilities resulting in loss, disclosure, or alteration of Personal Information (each a “Security Incident”), TowerOn will (1) promptly notify Customer of the Security Incident (provided that such notification may be delayed as required by a law enforcement agency); (2) take reasonable steps to address any Security Incident and prevent any further Security Incident.
  5. Notification(s) of Security Incidents will be delivered to one or more of Customer’s administrators by any means TowerOn selects including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on the online portal or as otherwise required by TowerOn in a written notice to Customer’s administrator(s). TowerOn’s obligation to report or respond to a Security Incident under this Section is not an acknowledgement by TowerOn of any fault or liability with respect to the Security Incident. Customer must notify TowerOn promptly about any possible misuse of its accounts or authentication credentials or any security incident related to the SaaS or Private SaaS Subscription.
  6. Customer expressly acknowledges that Personal Information may be transferred to the United States, and Customer authorizes TowerOn (where applicable) to transfer Personal Information to and process it in the United States or any other country as set forth above, which may not have the same level of data protection as the country from which the Personal Information originated.
  7. Customer represents and warrants that it has the authority to provide the Personal Information to TowerOn for processing as contemplated by this Agreement.  If any applicable law requires a data subject to receive notice of or to provide consent to the processing and/or transfer of his/her Personal Information, Customer will provide such notice and obtain such consent from the applicable data subjects.  
  8. TowerOn will abide by Applicable Privacy Laws pertaining to any relevant individual’s exercise of his or her rights to access, correct, or object to the processing of Personal Information. Notwithstanding the foregoing, unless otherwise required by Applicable Privacy Laws, TowerOn will promptly notify Customer if TowerOn receives a request from a data subject to have access to Personal Information or any other complaint or request relating to Customer's obligations under Applicable Privacy Laws. TowerOn will provide reasonable assistance to Customer to facilitate Customer’s ability to respond to such request or complaint (including, without limitation, by allowing data subjects to have access to their Personal Information if such access is required by the applicable data protection laws, and where the Personal Information is not already available to the Customer).
  9. Customer consents to TowerOn engaging  third  party  sub-processors to  process  the  Personal Information for the permitted purpose provided that: (i) TowerOn imposes data protection terms on any subprocessor it appoints that require it to protect the Data to the standard required by Applicable Privacy Laws; and (ii) TowerOn remains liable for any breach of this Clause that is caused  by  an  act,  error  or  omission  of  its  subprocessor.   Customer may object to TowerOn's appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, TowerOn will either not appoint or replace the sub-processor or, if this is not possible, Customer may suspend or terminate this Agreement (without prejudice to any fees incurred by Customer prior to suspension or termination).  
  10. If TowerOn believes or becomes aware that its processing of Personal Information is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall inform Customer and provide reasonable cooperation to Customer (at Customer's expense) in connection with any data protection impact assessment that may be required under Applicable Privacy Laws.  
  11. Following termination or expiry of the SaaS or Private SaaS Subscription, TowerOn will, where required by Applicable Privacy Laws and at the option of the Customer, return to Customer or securely delete all Personal Information processed in connection with the SaaS or Private SaaS Subscription.  This requirement shall not apply to the extent that TowerOn is required by applicable law to retain some or all of the Personal Information, or to Personal Information it has archived on back-up systems, in which event TowerOn shall securely isolate and protect from any further processing except to the extent required by such law.
  12. If there is new guidance or a change in the Applicable Privacy Laws that renders all or part of the SaaS or Private SaaS Subscription illegal, TowerOn may notify Customer of such modifications to this Section 20 as it reasonably deems necessary in light of such new guidance or change in Applicable Privacy Laws. If the Customer does not wish to accept the new terms in this Section 20, the Customer may terminate this Agreement within 15 days of the date such notice is given.  
  1. NOTICES.  Except as otherwise set forth in Section 20 (Data Protection and Security) regarding notification of a Security Incident, either party may give notice by to security@toweron.io . TowerOn may send notices to Customer at the address set forth at the top of the Order Form incorporating these Terms.  In addition, TowerOn may provide notices related to the SaaS or Private SaaS Subscription either through the SaaS or Private SaaS Subscription or to the email address on record with TowerOn. Either party may from time to time change its address for notices under this Section by giving the other party notice of the change in accordance with this Section. 
  2. GOVERNING LAW.  This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of law principles. The parties hereby consent to the personal and exclusive jurisdiction of the federal and state courts of the State of Delaware. If the entity selling the TowerOn Offerings is an Affiliate of TowerOn Inc, this Agreement will be governed by the laws of the country in which such TowerOn Affiliate is situated, and the parties consent to the exclusive jurisdiction of the courts where such TowerOn Affiliate is located, or in the event of multiple offices, where the head office of such Affiliate is located. If any provision of this Agreement is contrary to and in violation of an applicable law of any governmental unit in such country, such provision will be considered null and void to the extent that it is contrary to such law, but all other provisions of this Agreement will remain in effect.  The parties agree that the 1980 United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
  3. CUSTOMER REFERENCE. Customer agrees that TowerOn may reference the Customer as a TowerOn customer, subject to Customer’s trademark and logo usage guidelines provided by Customer, and that occasionally, after Customer review, TowerOn may issue a press release and case study. 
  4. ANTI-CORRUPTION. The Parties agree to:
  1. comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption;
  2. not engage in any activity, practice or conduct which would constitute an offence under applicable laws, statutes and regulations relating to anti-bribery and anti-corruption;
  3. immediately notify the other party in writing if a foreign public official becomes an officer or employee of the party or acquires a direct or indirect interest in the party;
  1. ENTIRE AGREEMENT.  This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes any other agreements, discussions, proposals, representations or warranties, written or oral, with respect to the subject matter hereof. Each party acknowledges that it has participated in negotiating this Agreement, and agrees that contractual ambiguities are not to be construed in favor of or against any party based on its role in drafting this Agreement. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party. Failure or delay by either party in exercising any right or remedy will not constitute a waiver. If any provision of this Agreement will be declared invalid, the entire Agreement will not fail on its account, and that provision will be severed, with the balance of this Agreement continuing in full force and effect. This Agreement may only be amended in writing signed by both parties.

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