ICM Control Corp.

 

TERMS OF USE, END USER LICENSE AGREEMENT AND PRIVACY POLICY



Welcome to ICM Controls Corp. ("Company", "we" or "us") mobile app ICM X Ref (“App”).  We thank you for using our products and believe you will appreciate their quality, functionality and ease of use.

This document includes three (3) separate agreements and/or policies as follows: (1) the terms of use governing your use of our App(s) (the "Terms of Use"); (2) the end user license agreement ("EULA"), which will apply to your downloading and/or use of any necessary software applications associated with the App; and (3) our privacy policy ("Privacy Policy") regarding information you provide to us in connection with your use of our App(s).  

By using this App, you will be agreeing that you will be legally bound by the all of the terms of those agreements, and that you agree to all of the terms and conditions that they contain.



Section I

 

APP TERMS OF USE

 

Last Modified: January 20, 2017

 

Acceptance of the Terms of Use

The following Terms of Use and any documents expressly incorporated by reference, govern your access to and use of the App, including any content, functionality and services offered on or through any App Store.

Please read the Terms of Use, EULA and Privacy Policy carefully.  If you do not want to agree to the Terms of Use, EULA and Privacy Policy do not use the App.  This App is offered and available to users who are at least eighteen (18) years of age or older and reside in the United States or any of its territories or possessions.  By using this App, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements.

 

Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion.  All changes are effective immediately when we post them, and apply to all access to and use of the App thereafter.

Your continued use of the App following the posting of revised Terms of Use means that you accept and agree to the changes.  You are expected to check this page each time you access this App so that you are aware of any changes, as they are binding on you.

 

Accessing the App and Account Security

We reserve the right to withdraw, amend or modify this App, and any service or material we provide on the App, in our sole discretion without notice.  We will not be liable if for any reason all, or any part of the App is unavailable at any time or for any period.   From time to time, we may restrict access to some parts of the App or the entire App to users.

You are responsible for:

· Obtaining all necessary internet access and for making all arrangements necessary for you to have access to the App.

· Ensuring that all persons who use the App are aware of these Terms of Use and comply with them.

 

Intellectual Property Rights

The App and its entire contents, 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 the Company, 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.

These Terms of Use permit you to use the App for your personal, non-commercial use only.  You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our App, except as follows:

· Your computer may temporarily store copies of such materials in temporary memory incidental to your accessing and viewing those materials.

· You may store files that are automatically cached by your browser for display enhancement purposes.

· You may print or download one copy of a reasonable number of pages of the App for your own personal, non-commercial use and not for further reproduction, publication or distribution.

· If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our End User License Agreement (see below) for such applications.

You must not:

· Modify copies of any materials from this site.

· Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.

· Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this App.

You must not access or use for any commercial purposes any part of the App or any services or materials available through the App. If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the App in breach of the Terms of Use, your right to use the App will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.  No right, title or interest in or to the App, or any content on the App is transferred to you, and all rights not expressly granted are reserved by the Company.  Any use of the App not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

 

Trademarks

The Company name, and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company.  All other names, logos, product and service names, designs and slogans on this App are the trademarks of their respective owners.

 

Prohibited Uses

You may use the App only for lawful purposes and in accordance with these Terms of Use.  

You agree not to use the App:

· In any way that violates any applicable federal, state, local or international law, or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).

· For the purpose of exploiting, harming or attempting to exploit or harm minors, or anyone else in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.

· To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses associated with any of the foregoing).

· To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the App, or which, as determined by us, may harm the Company or users of the App or expose them to liability.

Additionally, you agree not to:

· Use the App in any manner that could disable, overburden, damage or impair the site, or interfere with any other party's use of the App, including their ability to engage in real time activities through the App.

· Use any robot, spider or other automatic device, process or means to access the App for any purpose, including monitoring or copying any of the material on the App.

· Use any manual process to monitor or copy any of the material on the App, or for any other unauthorized purpose without our prior written consent.

· Use any device, software or routine that interferes with the proper working of the App.

· Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious, or technologically harmful.

· Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the App, the server on which the App is stored, or any server, computer or database connected to the App. Attack the App via a denial-of-service attack or a distributed denial-of-service attack.

· Reverse engineer App communication protocols; disassemble, decompile or decode encrypted data or use any device to impersonate an App; or otherwise attempt to derive or gain improper or unauthorized access to the App communication protocols.

· Otherwise attempt to interfere with the proper working of the App.

 

Changes to the App

 

We may update the content on this App from time to time, but its content is not necessarily complete or up-to-date.  Any of the material on the App may be out of date at any given time, and we are under no obligation to update such material.

 

Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the App will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection, and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.  WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP, OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY APP LINKED TO IT.

YOUR USE OF THE APP, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP IS AT YOUR OWN RISK.  THE APP, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.  NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE APP.  WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE APP, ITS CONTENT OR ANY SERVICES, OR ITEMS OBTAINED THROUGH THE APP WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE APP OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.  PLEASE NOTE THAT THIS DISCLAIMER APPLIES IN PARTICULAR TO, BUT IS NOT LIMITED TO, THE USE OF THE COMPANY'S WIRELESS REMOTELY ACCESSIBLE I3 SERIES THERMOSTAT CONTROL SYSTEMS AND PRODUCTS VIA THE APP.  THIS TECHNOLOGY IS BASED UPON, AMONG OTHER THINGS, THE USE OF WIRELESS ROUTERS AND NETWORKS WHICH BY THEIR NATURE MAY BE UNRELIABLE, REQUIRE FREQUENT RE-BOOTING OR RE-SETTING, AND UNLESS LOCKED DOWN BY MEANS OF APPROPRIATE SECURE ENCRYPTION FEATURES ARE SUBJECT TO HACKING OR OTHER MEANS OF GAINING UNAUTHORIZED ACCESS TO WIRELESS ROUTERS AND NETWORKS.

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

 

Limitation on Liability

IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE APP, ANY APPS LINKED TO IT, ANY CONTENT ON THE APP OR SUCH OTHER APPS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP OR SUCH OTHER APPS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

 

Indemnification

You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from, and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms of Use or your use of the App, including, but not limited to, any use of the App content, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the App.

 

Governing Law and Jurisdiction

All matters relating to the App and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).

Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the App shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the City of Syracuse and County of Onondaga although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country.  You waive any and all objections to the exercise of jurisdiction over you by such courts, and to venue in such courts.

 

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

 

Waiver and Severability

No waiver of by the Company of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

 

Entire Agreement

The Terms of Use, the End User License Agreement and our Privacy Policy contained herein constitute the sole and entire agreement between you and ICM Controls Corp. with respect to your use of the App, and any related products, features and software, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding the same.

 

Your Comments and Concerns

This App is operated by ICM Controls Corp., 7313 William Barry Blvd., North Syracuse, NY 13212.

All feedback, comments, requests for technical support and other communications relating to the App should be directed via email to: info@icmcontrols.com.

Thank you for using the ICM X Ref App.



Section II

 

SOFTWARE END USER LICENSE AGREEMENT

 

This End User License Agreement ("EULA")  (this "Agreement"), is a binding agreement between ICM Controls Corp. (the "Licensor") and the person or entity using Licensor's ICM X Ref App and associated Software and registering its use at Licensor's App.  (the "Licensee").

LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM.  BY CLICKING THE "ACCEPT" BUTTON/CHECKING THE "ACCEPT" BOX AT THE END OF THIS DOCUMENT, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS.   IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD/INSTALL THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE.

1. Definitions.  For purposes of this Agreement, the following terms have the following meanings:

"Authorized Users" means the above described Licensee and other individuals/entities authorized to use the Software pursuant to the license granted under this Agreement.

"Documentation" means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.

"Licensee" has the meaning set forth in the preamble.

"License Fees" means any license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.

"Licensor" has the meaning set forth in the preamble.

"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

"Software" means the software programs for which Licensee is obtaining a license.

"Term" has the meaning set forth in Section 10.

"Third Party" means any Person other than Licensee or Licensor.

"Update" has the meaning set forth in Section 7(a).

2. License Grant and Scope.  Subject to and conditioned upon  Licensee's strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement.  This license grants Licensee the right, exercisable solely by and through Licensee's Authorized Users, to:

a. Download, copy and install in accordance with the Documentation one (1) copy of the Software on one (1) computer owned or leased, and controlled by, Licensee.  Such computer shall be for a single Authorized User.  In addition to the foregoing, Licensee has the right to make one (1) copy of the Software solely for archival purposes and one (1) copy/a reasonable number of copies of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any/the copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy(ies).  All copies of the Software made by the Licensee:

i. will be the exclusive property of the Licensor;

ii. will be subject to the terms and conditions of this Agreement; and

iii. must include all trademark, copyright, patent and other intellectual property rights notices contained in the original.

b. Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation.  

c. Download or otherwise make one (1) copy of the Documentation per copy of the Software and use such Documentation, solely in support of its licensed use of the Software in accordance herewith.  All copies of the Documentation made by Licensee:

. will be the exclusive property of Licensor;

i. will be subject to the terms and conditions of this Agreement; and

ii. must include all trademark, copyright, patent and other intellectual property rights notices contained in the original.

d. Transfer any copy of the Software from one computer to another, provided that:

. the number of computers on which the Software is installed at any one time does not exceed the number permitted under Section 2(a).

i. Licensee will be responsible and liable pursuant to the terms and conditions of this Agreement for its Authorized Users' actions, and failures to take required actions with respect to the Software.

3. Third-Party Materials.  The Software may include software, content, data or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on license terms that are in addition to and/or different from those contained in this Agreement ("Third-Party Licenses").  Licensee is bound by and shall comply with all Third-Party Licenses.  Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.

4. Use Restrictions.  Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:

. use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;

a. except as may be permitted by this Agreement and strictly in compliance with its terms, provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Licensee, with access to or use of the Software or Documentation;

b. modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

c. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

d. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

e. remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software or Documentation, including any copy thereof;

f. except as expressly set forth in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part;

g. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network ("WAN"), virtual private network ("VPN"), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;

h. use the Software in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:

. power generation systems;

i. aircraft navigation or communication systems, air traffic control systems or any other transport management systems;

ii. safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and

iii. military or aerospace applications, weapons systems or environments;

i. use the Software in violation of any federal, state or local law, regulation or rule; or

j. use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor's commercial disadvantage.

5. Responsibility for Use of Software.  Licensee is responsible and liable for all uses of the Software through access thereto provided by Licensee, directly or indirectly.  Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions, and failures to take required actions with respect to the Software by its Authorized Users, or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.

6. Compliance Measures.

. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against use of the Software:

. beyond the scope of the license granted pursuant to Section 2; or

i. prohibited under Section 4.

Licensee shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.

7. Maintenance and Support.

a. In the event Licensor determines to provide maintenance and support services, such services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, the "Updates") as Licensor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services.  Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues.  Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement.  Licensee acknowledges that Licensor may provide some or all Updates via download from a App designated by Licensor, and that Licensee's receipt thereof shall require an internet connection, which connection is Licensee's sole responsibility.  Licensor has no obligation to provide Updates via any other media.  Maintenance and support services do not include any new version or new release of the Software Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.

b. Licensor reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Licensee's registration of the copy of Software for which support is requested.  Licensor has no obligation to provide maintenance and support services, including Updates:

i. for any but the most current or immediately preceding version or release of the Software;

ii. for any copy of Software for which all previously issued Updates have not been installed;

iii. if Licensee is in breach under this Agreement; or

iv. for any Software that has been modified other than by or with the authorization of Licensor, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation or expressly authorized by Licensor in writing.

8. Collection and Use of Information.

. Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:

. the provision of maintenance and support services; and

i. security measures included in the Software as described in Section 6.

a. Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee, or on Licensee's equipment, including, but not limited to:

. improving the performance of the Software or developing Updates; and

i. verifying Licensee's compliance with the terms of this Agreement and enforcing the Licensor's rights, including all intellectual property rights in and to the Software.

9. Intellectual Property Rights.  Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee.  Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement.  Licensor and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software, and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement.  Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.  Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor's Intellectual Property Rights in the Software and fully cooperate with Licensor, at Licensor's sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights.

10. Term and Termination.

. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the "Term").

a. Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.

b. Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for forty-five (45) days after Licensor provides written notice thereof.

c. Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy, or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

d. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation.  No expiration or termination shall affect Licensee's obligation to pay all Licensee Fees and Support Fees, if any, that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 11(c)(ii).

11. Limited Warranties, Exclusive Remedy and Disclaimer/Warranty Disclaimer.

. Licensor warrants that, for a period of 30 days following the date of Licensee's purchase of the Software:

. any media on which the Software is provided will be free of material damage and defects in materials and workmanship under normal use; and

i. the Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith.

a. The warranties set forth in Section 11(a)(i) and Section 11(a)(ii) will not apply, and will become null and void if Licensee materially breaches any material provision of this Agreement, or if Licensee, any Authorized User or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement:

. installs or uses the Software on or in connection with any hardware or software not specified in the Documentation, or expressly authorized by Licensor in writing;

i. modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or

ii. misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing.

b. If, during the period specified in Section 11(a), any Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 11(b), Licensor will, subject to Licensee's promptly notifying Licensor in writing of such failure, at its sole option, either:

. repair or replace the Software, provided that Licensee provides Licensor with all information Licensor reasonably requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or

i. refund the purchase price/License Fees paid for such Software, subject to Licensee's ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software.

If Licensor repairs or replaces the Software, the warranty will continue to run from the initial purchase and not from Licensee's receipt of the repair or replacement.  The remedies set forth in this Section 11(c) are Licensee's sole remedies and Licensor's sole liability under this Agreement/the limited warranty set forth in Section 11(a).

d. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN Section 11(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, 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 SOFTWARE AND DOCUMENTATION, 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.  WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, 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.

5. Limitation of Liability.  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

d. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

e. IN NO EVENT WILL LICENSOR AND ITS AFFILIATES, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE, THAT IS THE SUBJECT OF THE CLAIM.

f. THE LIMITATIONS SET FORTH IN Section 12(a) AND Section 12(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL THEIR ESSENTIAL PURPOSE.

Export Regulation.  The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations.  The Licensee shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation.  The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside the US.

US Government Rights.  The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101.  Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with: (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors; or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

Miscellaneous.

. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of New York.  Any legal suit, action or proceeding arising out of or related to this Agreement, or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of Syracuse and County of Onondaga, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens.  Service of process, summons, notice or other document by mail to such party's address set forth herein or otherwise provided or obtainable shall be effective service of process for any suit, action or other proceeding brought in any such court.

a. Licensor shall not be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Licensor's reasonable control.

b. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.

c. This End User License Agreement, together with Terms of Use and Privacy Policy, and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

d. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor's prior written consent, which consent Licensor may give or withhold in its sole discretion.  For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor's prior written consent is not required.  No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement.  Any purported assignment, delegation or transfer in violation of this Section 15(e) is void.  Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent.  This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

e. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

f. This Agreement may only be amended, modified or supplemented by an agreement in writing signed electronically or otherwise duly acknowledged by each party hereto.  No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed as indicated above by the party so waiving.  Except as otherwise set forth in this Agreement, no failure to exercise or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

g. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

h. For purposes of this Agreement, (i) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; and (iii) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole.  Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder.  This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

i. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.



Section III

 

PRIVACY POLICY

 

Last modified: January 20, 2017

 

Introduction

ICM Control Corp. ("Company" or "we") respect your privacy and are committed to protecting it through our compliance with this policy.

This policy describes the types of information we may collect from you or that you may provide when you use the App and our practices for collecting, using, maintaining, protecting and disclosing that information.

This policy applies to information we collect:

· On this App.

· In e-mail, text and other electronic messages between you and this App.

· Through mobile and desktop applications you download from this App, which provide dedicated non-browser-based interaction between you and this App.

· When you interact with our advertising and applications on third-party Apps and services, if those applications or advertising include links to this policy.

It does not apply to information collected by:

· us offline or through any other means, including on any other App operated by Company or any third party (including our affiliates and subsidiaries); or

· any third party (including our affiliates and subsidiaries), including through any application or content (including advertising) that may link to or be accessible from or on the App.

Please read this policy carefully to understand our policies and practices regarding your information, and how we will treat it.  If you do not agree with our policies and practices, your choice is not to use our App.  By accessing or using this App, you agree to this privacy policy.  This policy may change from time to time and the App will be updated accordingly.  Your continued use of this App after we make changes is deemed to be acceptance of those changes, so please check the policy periodically for updates.

 

Children Under the Age of Eighteen (18)

Our App is not intended for individuals under 18 years of age.  No one under age 18 may provide any personal information to or on the App.  We do not knowingly collect personal information from individuals under 18.  If you are under 18, do not use or provide any information on this App or on or through any of its features/register on the App, make any purchases through the App, use any of the interactive or public comment features of this App or provide any information about yourself to us, including your name, address, telephone number, e-mail address or any screen name or username you may use.  

 

Information We Collect About You and How We Collect It

We collect several types of information from and about users of our App, including information:

· by which you may be personally identified, such as name, postal address, e-mail address, telephone number or ANY OTHER INFORMATION THE APP COLLECTS THAT IS DEFINED AS PERSONAL OR PERSONALLY IDENTIFIABLE INFORMATION UNDER AN APPLICABLE LAW ("personal information");

· that is about you but individually does not identify you; and/or

· about your internet connection, the equipment you use to access our App and usage details.

We collect this information:

· Directly from you when you provide it to us.

· Automatically as you navigate through the site. Information collected automatically may include usage details, IP addresses and information collected through cookies, web beacons and other tracking technologies.

· From third parties, for example, our business partners.

Information You Provide to Us

The information we collect on or through our App may include:

· Information that you provide by filling in forms on our App. This includes information provided at the time of registering to use our App, subscribing to our service, posting material or requesting further services.  We may also ask you for information when you report a problem with our App.

· Records and copies of your correspondence (including e-mail addresses), if you contact us.

· Your responses to surveys that we might ask you to complete for research purposes.

· Details of transactions you carry out through our App and of the fulfillment of your orders.  You may be required to provide financial information before placing an order through our App.

· Your search queries on the App.

Although we limit access to certain pages/you may set certain privacy settings for such information by logging into your account profile, please be aware that no security measures are perfect or impenetrable.  Additionally, we cannot control the actions of other users of the App.

Information We Collect Through Automatic Data Collection Technologies

As you navigate through and interact with our App, we may use automatic data collection technologies to collect certain information about your equipment, browsing actions and patterns, including:

· Details of your visits to our App, including traffic data, location data, logs and other communication data and the resources that you access and use on the App.

· Information about your computer and internet connection, including your IP address, operating system and browser type.

· Information about temperature settings, heating/cooling equipment outputs and related information, and use of mobile devices to access the App.

The information we collect automatically is statistical data and does not include personal information, but we may maintain it or associate it with personal information we collect in other ways or receive from third parties.  It helps us to improve our App and to deliver a better and more personalized service, including by enabling us to:

· Estimate our audience size and usage patterns.

· Store information about your preferences, allowing us to customize our App according to your individual interests.

· Speed up your searches.

· Recognize you when you return to our App.

The technologies we use for this automatic data collection may include:

· Cookies (or browser cookies).  A cookie is a small file placed on the hard drive of your computer. You may refuse to accept browser cookies by activating the appropriate setting on your browser.  However, if you select this setting you may be unable to access certain parts of our App.  Unless you have adjusted your browser setting so that it will refuse cookies, our system will issue cookies when you direct your browser to our App.

· Flash Cookies.  Certain features of our App may use local stored objects (or Flash cookies) to collect and store information about your preferences and navigation to, from and on our App.  Flash cookies are not managed by the same browser settings as are used for browser cookies.

· Web Beacons.  Pages of our the App and our e-mails may contain small electronic files known as web beacons (also referred to as clear gifs. pixel tags and single-pixel gifs) that permit the Company, for example, to count users who have visited those pages or opened an e-mail and for other related App statistics (for example, recording the popularity of certain App content and verifying system and server integrity).

We do not collect personal information automatically, but we may tie this information to personal information about you that we collect from other sources or you provide to us.

 

Third-party Use of Cookies and Other Tracking Technologies

Some content or applications, including advertisements, on the App are served by third-parties, including advertisers, ad networks and servers, content providers and application providers.  These third parties may use cookies alone or in conjunction with web beacons or other tracking technologies to collect information about you when you use our App.  The information they collect may be associated with your personal information or they may collect information, including personal information, about your online activities over time and across different App and other online services.  They may use this information to provide you with interest-based (behavioral) advertising or other targeted content.

We do not control these third parties' tracking technologies or how they may be used. If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly.  

 

How We Use Your Information

We use information that we collect about you or that you provide to us, including any personal information:

· To present our App and its contents to you.

· To provide you with information, products or services that you request from us.

· To fulfill any other purpose for which you provide it.

· To provide you with notices about your account/subscription, including expiration and renewal notices.

· To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.

· To notify you about changes to our App or any products or services we offer or provide though it.

· To allow you to participate in interactive features on our App.

· In any other way we may describe when you provide the information.

We may also use your information to contact you about our own and third-parties' goods and services that may be of interest to you.  If you do not want us to use your information in this way, please check the relevant box located on any form on which we collect your data.  We may use the information we have collected from you to enable us to display advertisements to our advertisers' target audiences.  Even though we do not disclose your personal information for these purposes without your consent, if you click on or otherwise interact with an advertisement, the advertiser may assume that you meet its target criteria.

 

Disclosure of Your Information

We may disclose aggregated information about our users, and information that does not identify any individual, without restriction.

We may disclose personal information that we collect or you provide as described in this privacy policy:

· To our subsidiaries and affiliates.

· To contractors, service providers and other third parties we use to support our business and who are bound by contractual obligations to keep personal information confidential and use it only for the purposes for which we disclose it to them.

· To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution or other sale or transfer of some or all of ICM Control Corp.'s assets in which personal information held by ICM Control Corp. about our App users is among the assets transferred.

· For any other purpose disclosed by us when you provide the information.

· With your consent.

We may also disclose your personal information:

· To comply with any court order, law or legal process, including to respond to any government or regulatory request.

· To enforce or apply our terms of use and other agreements, including for billing and collection purposes.

· If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of ICM Control Corp., our customers or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction.

 

Choices About How We Use and Disclose Your Information

We strive to provide you with choices regarding the personal information you provide to us.  We have created mechanisms to provide you with the following control over your information:

· Tracking Technologies and Advertising.  You can set your browser to refuse all or some browser cookies, or to alert you when cookies are being sent.  To learn how you can manage your Flash cookie settings, visit the Flash player settings page on Adobe's App.  If you disable or refuse cookies, please note that some parts of this site may then be inaccessible or not function properly.

· Disclosure of Your Information for Third-Party Advertising.  We will not share your personal information with unaffiliated or non-agent third parties for promotional purposes.

· Promotional Offers from the Company.  We will not share your e-mail address/contact information  to promote our own or third parties' products or services.

· Targeted Advertising. We will not use information that we collect or that you provide to us to deliver advertisements according to our advertisers' target-audience preferences.

 

Accessing and Correcting Your Information

You can review and change your personal information by logging into the App and visiting your account profile page.

You may also send us an e-mail at: info@icmcontrols.com to request access to, correct or delete any personal information that you have provided to us.  We cannot delete your personal information except by also deleting your user account. We may not accommodate a request to change information if we believe the change would violate any law or legal requirement or cause the information to be incorrect.

 

Data Security

We have implemented measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration and disclosure.  

The safety and security of your information also depends on you. Where we have given you (or where you have chosen) a password for access to certain parts of our App, you are responsible for keeping this password confidential. We ask you not to share your password with anyone.

Unfortunately, the transmission of information via the internet is not completely secure. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted to our App.  Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures contained on the App.

 

Changes to Our Privacy Policy

It is our policy to post any changes we make to our privacy policy on this page.  If we make material changes as to how we treat our users' personal information, we will notify you through a notice on the App.  The date the privacy policy was last revised is identified at the top of the page.  You are responsible for periodically visiting our App and this privacy policy to check for any changes.

 

Contact Information

To ask questions or comment about this privacy policy and our privacy practices, contact us at:

ADDRESS/E-MAIL ADDRESS:

or via our toll-free number:

If you are in full agreement with all of the terms and conditions in the foregoing TERMS OF USE, END USER LICENSE AGREEMENT AND PRIVACY POLICY please use the App.  Thank you for using as a user of ICM Control Corp. App.

© Copyright 2017 by ICM Control Corp.

 

all rights reserved