Effective Date: July 20, 2021
1. WHO WE ARE AND WHAT WE DO. Cleaver-Brooks, Inc. (“Cleaver-Brooks,” “we” or “us”) is the owner and operator of the PROMETHA connected boiler solutions dashboard and mobile application (collectively, the “App”). Our App optimizes boiler systems by providing actionable insights to increase efficiency and reduce unplanned downtime. Through the App, users may remotely monitor their boiler systems, view key performance indicators, receive alerts, utilize diagnostic tools and review trend reports (all of the above features are the “Services”).
3. HOW TO CONTACT US. If you have any questions regarding these Terms and Conditions, please contact us at:
221 Law Street
Thomasville, GA 31792
5. PROMETHA® App & Services. Cleaver-Brooks, Inc. is a complete boiler room solutions provider. Cleaver-Brooks’ boiler room equipment include electronic controls, which allow users to monitor and analyze performance data from the boiler room systems they purchase from Cleaver-Brooks. Cleaver-Brooks also provides boiler control equipment that can be used to monitor boiler room equipment, as do other third-party providers. Cleaver-Brooks has developed the App and Services so that Cleaver-Brooks and its authorized users can collect and analyze data from boiler room equipment via the software-as-a-service App branded as PROMETHA®. The App does not control the operation of any boiler room equipment. It simply provides information that can be used to better understand and optimize operations.
6. GRANT OF LICENSE. Subject to the terms of any applicable purchase order, Cleaver-Brooks grants you and your authorized employee users a revocable, non-exclusive, non-transferable and non-sublicensable license to access and use the App and Services for the sole purpose of remotely monitoring your boiler room equipment (“Equipment”). Cleaver-Brooks may modify, add or delete features or functionality, upgrade or offer new releases or versions, or otherwise change the App and the Services.
7. RESTRICTIONS. You expressly agree that you will use the App and Services only as permitted under the terms of this Agreement and only as contemplated by or described within any documentation relating to the App and Services provided by Cleaver-Brooks to you (“Documentation”). You expressly agree: (a) not to use the App or Services for any reason or in any manner not authorized herein; (b) modify or create derivative works of the App or Services; (c) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the App or Services; (d) use the App or Services for purposes of developing a competing product or service; (e) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and/or App; or (f) assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the App, or directly or indirectly permit any third party to use or copy the App or Data (defined below). Under no circumstances will Cleaver-Brooks be liable or responsible for any use, or any results obtained by the use, of the services in conjunction with any services, software, or hardware that are not provided by Cleaver-Brooks. All such use will be at your sole risk.
8. EQUIPMENT, HARDWARE & CONNECTIVITY. Many of Cleaver-Brooks’ models of equipment are provided with the hardware necessary to connect to the App. However, some model(s) of Cleaver-Brooks’ equipment and equipment manufactured by others will not connect to the App unless you, at your sole cost and expense, purchase and install additional hardware that will allow you to connect your Equipment to the App. While Cleaver-Brooks will provide access to the App, you are responsible, at your sole expense, for procuring and maintaining equipment and hardware, power, internet service, cellular service and any other items necessary for you and your authorized users to access and use the App and Services.
9. DATA COLLECTED. You understand and agree that for the App functionality to perform, Cleaver-Brooks will collect, process and store certain data relating to you, your Equipment and Equipment usage (“Data”). The categories of Data that Cleaver-Brooks will collect include (without limitation): Equipment owner information, Equipment location, Equipment model, Equipment manufacture date, Equipment purchase date, boiler operating efficiency, variable speed drive rpm, if applicable, oxygen level in the combustion stream, combustion air temperature, stack temperature, including before and after the economizer if applicable, steam pressure and temperature, flame signal, boiler cycle count, Equipment water pressure and temperature, water levels, feed pump and make-up pump statuses. You own all right, title and interest in and to your Data. You grant Cleaver-Brooks the right to use the Data: (a) to provide you with use of equipment and systems, the App, the Services and any related support; and (b) in a deidentified and aggregated manner for Cleaver-Brooks’ business purposes so that Cleaver-Brooks can improve its products and services and obtain a better understanding of operational and performance data of boiler room equipment and packaged water systems.
10. NO AFFIRMATIVE MONITORING OF DATA. You understand that Cleaver-Brooks will not be actively monitoring your Equipment, Data or other connected system(s). While Cleaver-Brooks may provide automated predictive and prescriptive features through the App that may provide suggestions or reports to you, you expressly understand and agree that Cleaver-Brooks will not be actively monitoring your Data or Equipment, and Cleaver-Brooks has no obligation to monitor, report or share any information with you, including information regarding safety or performance issues with the Equipment.
11. TERM OF LICENSE. These Terms shall become effective upon your downloading and use pf the App (“Effective Date”) and shall continue through the term of the license you have selected (“Initial Term”). Each license shall automatically renew unless otherwise terminated or upgraded (each a “Renewal Term”). The Initial Term and any Renewal Term may be referred to herein as “Term.”
12. SERVICE FEES. Our service fees vary depending on the type of license you select when you register for the App and Services. All service fees for access to and use of the App shall be pre-paid in full for the selected term. Upon renewal, service fees will be due and payable on the effective date and the first date of each Renewal Term.
13. SECURITY. You will be required to register and create credentials to use the App and to provide use of the App to your authorized employees. Credentials shall be unique to each user and are not to be shared. You are responsible for maintaining the security for your access to and use of the App, and for any access provided to your company’s employees. You and all authorized users on your account shall maintain strong credentials and passwords and shall not share or disclose credentials to any unauthorized users. You shall be responsible for the use of and actions by any of your company employees or contractors that utilize the App or any Services. Cleaver-Brooks will utilize industry standard security measures during the Term when providing the App and Services.
14. TERMINATION. Either party may terminate this license: (a) upon the other party’s material breach of this Agreement and failure to cure such material breach within thirty (30) days of receiving notice of the breach from the non-breaching party; (b) by providing notice of non-renewal to the other party at least thirty (30) days prior to the end of the Term; or (c) immediately upon a party becoming insolvent or unable to pay their creditors as debts become due. Cleaver-Brooks may terminate these Terms and any license at any time if Cleaver-Brooks elects to no longer provide the App. In the event Cleaver-Brooks terminates due to a decision to cease providing the App, Cleaver-Brooks will refund Service Fees you for the Services in a pro-rated amount so that you do not have to pay for any months of access to the App that you did not receive.
15. FORCE MAJEURE. Except for your obligation to make payment hereunder, neither party shall be in default if its delay or failure to perform any obligation hereunder is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, pandemic, civil commotion, strikes, labor disputes, third-party attacks and governmental demands or requirements (a “Force Majeure Event”); provided that, in order to be excused from any such delay or failure to perform, such party must immediately notify the other party upon the commencement of the Force Majeure Event, and act diligently to remedy the cause of such delay or failure.
16. FEDERAL AND STATE LAWS. Each party agrees to adhere to all applicable state, federal and local laws when performing under this Agreement.
17. ABUSE. Cleaver-Brooks may undertake, at its sole discretion, with or without prior notice, the following enforcement actions, including (without limitation) account suspension or termination in the event of suspected abuse, failure to comply with these Terms, or failure to comply with applicable law. Cleaver-Brooks reserves the right to investigate abuse and/or suspected abuse, on a case-by-case basis and to terminate or suspend an individual's or entity’s ability to use the App or participate in any features or programs at its sole discretion.
18. ACCESSIBILITY. We value all of our App users, and it is our goal to provide an excellent experience for all our users, including our users with disabilities. You understand and accept, however, that some of the features of the App may not be fully accessible because they are provided by third-parties or have errors. If you have comments regarding the accessibility of the App, or would like to report an issue you are experiencing, please email us at email@example.com. You expressly agree to attempt to work with us in good faith to obtain access to our App and that you will not threaten or assert any claims regarding accessibility against us unless you have first provided us with notice of the inaccessibility problem(s) and a thirty (30) day period to remedy the problem.
19. NO WARRANTIES. CLEAVER-BROOKS PROVIDES THE APP AND SERVICES ON AN “AS IS” BASIS WITHOUT WARRANTY. CLEAVER-BROOKS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY – EITHER EXPRESS OR IMPLIED - AS TO THE RELIABILITY, SECURITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY OF THE APP AND/OR SERVICES OR AS TO THE ACCURACY, OR COMPLETENESS OF ITS DATA COLLECTION, DATA USE, REPORTS, OR ANY OTHER SERVICES PERFORMED HEREUNDER. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA PRIVACY OR SECURITY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY CLEAVER-BROOKS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
20. LIMITATION OF LIABILITY. IN NO EVENT SHALL CLEAVER-BROOKS BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, EQUIPMENT FAILURE, REVENUE, PROFITS, USE, BUSINESS LOSSES OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE APP, THE SERVICES OR THE DATA, INCLUDING BUT NOT LIMITED TO ANY UNAUTHORIZED USE OR ACCESS TO DATA, INTERRUPTION IN ANY SERVICES, ERRORS, OR OMISSIONS, REGARDLESS OF CAUSE, EVEN IF CLEAVER-BROOKS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLEAVER-BROOKS’ ENTIRE LIABILITY FOR ANY AND ALL CLAIMS RELATED TO THE APP, THE SERVICES, THE DATA AND/OR THESE TERMS WILL NOT EXCEED THE AMOUNT OF YOUR ACTUAL PROVEN DAMAGES INCURRED BY YOU UP TO $1,000, REGARDLESS OF THE BASIS OF THE CLAIM. YOU HEREBY RELEASE AND HOLD CLEAVER-BROOKS, ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COSTS) YOU MAY HAVE ARISING OUT OF OR IN CONNECTION WITH THE APP, THE SERVICE, THE DATA OR CLEAVER-BROOKS’ COLLECTION AND USE OF DATA UNDER THIS AGREEMENT.
21. INDEMNIFICATION. You agree to indemnify, defend and hold harmless Cleaver-Brooks and its affiliates, employees, agents, representatives and third party service providers, for any and all claims, demands, actions, liability, fines, penalties and expenses, whether based on warranty, contract, negligence, strict liability or otherwise, that may arise from any of your acts (or those of your authorized users or contractors) through the use of the App. Such acts may include but are not limited to: submissions, misuse of the App, unauthorized use of the App or data contained therein, or breach the terms of these Terms and Conditions or any applicable law.
22. DISPUTE RESOLUTION. The parties shall attempt in good faith to resolve any dispute arising out of or relating to the App, the Services, the Data or these Terms and Conditions promptly by negotiation between representatives from each party who have authority to settle the controversy. Either party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include (a) a statement of that party’s position and a summary of arguments supporting that position, and (b) the name and title of the representative who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the initial notice, the executives of both parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one party to the other will be honored. All negotiations pursuant to this paragraph are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. If the dispute has not been resolved by negotiation as provided herein within 45 days after delivery of the initial notice of negotiation, or if the parties failed to meet within 30 days of the notice, the parties shall endeavor to settle the dispute by non-binding mediation under the International Institute for Conflict Prevention & Resolution (“CPR”) Mediation Procedure currently in effect, provided, however, that if one party fails to participate in the negotiation as provided herein, the other party can initiate mediation prior to the expiration of the 45 days. Unless otherwise agreed, the parties will select a mediator from the CPR Panels of Distinguished Neutrals. If the dispute has not been resolved by mediation as provided herein within 45 days after initiation of the mediation procedure, this Agreement does not preclude either party from initiating litigation; provided, however, that if one party fails to participate in either the negotiation or mediation as agreed herein, the other party can initiate litigation prior to the expiration of the time periods set forth above. Notwithstanding anything herein to the contrary, a party may file a complaint if in its sole judgment such action is necessary to protect its rights. Despite such action, the parties will continue to negotiate in good faith. Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Georgia in each case located in the City of Thomasville and County of Thomas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
23. CLASS ACTION WAIVER. ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING FROM THESE TERMS, THE APP, THE SERVICES, OR THE COLLECTION, USE, DISCLOSURE, LOSS OR MISUSE OF DATA SHALL BE RESOLVED ON A CASE-BY-CASE BASIS AS SET FORTH IN SECTION 22 ABOVE. YOU EXPRESSLY WAIVE THE RIGHT TO PARTICIPATE IN ANY CLASS ACTION LAWSUIT AGAINST CLEAVER-BROOKS IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM OR THE COLLECTION, USE, DISCLOSURE, LOSS OR MISUSE OF DATA.
25. CONSTRUCTION OF TERMS. Each party had the opportunity to review these Terms and to consult legal counsel, therefore the terms of this Agreement will not be construed against either party as the drafter of the Agreement. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Georgia. The failure of the Company to insist upon strict performance of any of the terms and conditions stated herein shall not be considered a continuing waiver of any such term or condition or any of the Company’s rights. 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.
26. CONSENT TO RECEIVE ELECTRONIC NOTIFICATIONS. Electronic communication is the most effective and timely way to provide the users of the App with any optional or required notifications and disclosures. In some circumstances, however, state and/or federal laws may require us to send you disclosures or communications in paper format unless you have affirmatively consented to receiving electronic notifications only in advance of the notification. Through this Agreement, pursuant to 15 U.S.C. § 7001, you hereby affirmatively consent to receive electronic notifications and disclosures from us only (without requiring a paper copy) and you represent that, to date, you have not withdrawn such consent. You have the right to change your mind and withdraw your consent at any time. If you would like to withdraw your consent to receive electronic notifications and/or would like to request a paper copies of any electronic notifications you receive, please contact: firstname.lastname@example.org. To receive electronic records, you will need access to a smart phone, tablet, laptop or computer with Internet access and either email software (such as Microsoft Outlook) or access to a web-based electronic mail software platform, such as Gmail, Yahoo or other electronic mail provider.
27. SEVERABILITY. If any term or provision in these Terms and Conditions is found to be void, against public policy, or unenforceable by a court of competent jurisdiction and such finding or order becomes final with all appeals exhausted, then the offending provision shall be deemed modified to the extent necessary to make it valid and enforceable. If the offending provision cannot be so modified, then the same shall be deemed stricken from these Terms and Conditions in its entirety and the remainder of these Terms and Conditions shall survive with the offending provision eliminated.
28. THESE TERMS MAY BE MODIFIED. Cleaver-Brooks may modify these Terms at any time, with the modifications to be effective with respect to the App and Services as soon as any updates are posted in the App. Your continued use of the App and the Services following any such modifications constitutes your acceptance of those modifications. You are responsible for reviewing these Terms periodically and understanding them in exchange for your license to use the App.