Terms of Service
Welcome, and thank you for your interest in Flywheel Building Intelligence, Inc. (“Flywheel”, “we”, “us” or “our”) and our FLYWHEEL™ online service for optimizing equipment maintenance, energy efficiency and team performance in your building (collectively, the “Service”). These Terms of Service (“Terms” or “Agreement”) govern your (“Customer”, “you” or “your”) use of the Service. By registering on our website or using the Service in any way, you agree to these Terms as a legally binding contract between you and Flywheel.
- Accounts; Fees; Billing. Customers that wish to purchase an introductory/base level of the Service may do so by registering for an account and providing certain information as requested on our registration website (www.flywheelbi.com). Such Customers are referred to as “Self-Service Customers”. Customers that wish to purchase a more comprehensive level of services, including the Service, will enter into a separate written agreement with Flywheel (“Customer Agreement”) in collaboration with your assigned Flywheel Such Customers are referred to as “Full-Service Customers”. For the sake of clarity, unless a provision of this Agreement specifically references a Self-Service Customer or a Full-Service Customer, all provisions of this Agreement apply to both Self-Service Customers and Full-Service Customers, who are collectively referred to as “Customers”.
- Self-Service Customers.
- Account. To access the Service, Self-Service Customers must register for an account, by providing certain information as requested on our registration website (www.flywheelbi.com), such as your e-mail address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times.
- Subscription Fees. Access to the Service, or to certain features of the Service, may require Self-Service Customers to pay fees (“Subscription Fees”). Before you are required to pay any Subscription Fees, you will have an opportunity to review and accept the applicable fees that you will be charged. Your acceptance of the Subscription Fees constitutes your agreement to pay to Flywheel all Subscription Fees for Services purchased by you or on your behalf, including any applicable taxes. Flywheel may change the Subscription Fees, including by adding additional fees or charges, on a going-forward basis at any time, by sending you a notice of such change (via a message on or through the Service or email). Subscription Fees are denoted in U.S. Dollars.
- Billing. Subscription Fees for Self-Service Customers will be billed upon the initiation (or modification) of your subscription, and thereafter at the beginning of each month during the term of your subscription. Flywheel will charge the payment method you specify at the time of purchase. You authorize Flywheel to charge all presented sums to such payment method. If you pay any applicable fees with a credit card, Flywheel may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. Subscription Fees will be prorated based on your actual subscription commencement and termination dates. Subscription Fees are nonrefundable (except as may otherwise be expressly provided herein).
- Self-Service Customers.
b. Full-Service Customers.
- Account. To access the Service, Full-Service Customers must register for an account, in collaboration with your assigned Flywheel salesperson. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times.
- Subscription Fees; Billing. Fees for CMMS Services are comprised of two (2) elements: (i) Professional Services Fees in connection with providing the setting up and enabling of the Software at the Property, and Training (“Professional Services Fees”)3, and (ii) Recurring fees required to provide the CMMS Services after enablement (“Recurring Fees”).
- Term; Renewal; Termination; Exclusions.
- Self-Service Customers.
- Term; Renewal. The subscription for Self-Service Customers will be monthly and will commence once you have registered for an account. The subscription will continue to automatically renew on a monthly basis unless you or Flywheel elect to terminate the subscription.
- Termination. Either the Self-Service Customer or Flywheel may terminate the subscription, and thus this Agreement, for convenience at any time, by providing written notice to the other party.
- Full-Service Customers. The term for the CMMS Services (“CMMS Services Term”) will commence on the date of last signature of a party hereto, and unless earlier terminated pursuant to the terms hereof, will continue for an initial term of Thirt- Six (36) months after the date that Training is complete. This Scope of Work will automatically renew for successive periods of one (1) year, unless Flywheel or Customer provides the other party with written notice of non-renewal at least thirty (90) days prior to the end of the then-current CMMS Services Term. Flywheel may adjust Fees for the CMMS Services for each successive renewal term; provided, however, Flywheel will provide Customer written notice of any such adjustments no less than forty-five (45) days prior to the end of the then-current CMMS Services Term. Termination. Customer may, at any time and in its sole discretion, terminate this Scope of Work (thus terminating all CMMS Services for the subject Property) by providing written notice of such termination to Flywheel. Effect of Termination. In the event Customer elects to terminate this Scope of Work, Customer will pay Flywheel a termination fee (“Termination Fee”) consisting of (i) 100% of Professional Service Fees, less the sum of any Professional Service Fees paid up to the date of termination, and (ii) any unpaid Recurring Fees for all CMMS Services performed up to the date of termination; provided, however, to the extent Customer has prepaid any Recurring Fees, Flywheel will prorate such Fees and provide Customer with a refund for the prepaid Recurring Fees applicable to the post-termination balance of the CMMS Services Term. The Termination Fee and any refunds are due and payable within thirty (30) days after the termination date. In addition, upon the expiration or earlier termination of this Scope of Work, Customer will (i) immediately return all materials which are the property of Flywheel, including, without limitation, manuals and Training materials, and (ii) remove all Flywheel software and databases from all of Customer’s systems and Properties.
- Exclusions. Notwithstanding anything to the contrary in the Master Agreement or this Scope of Work, Customer will be responsible for
- all sales and other taxes relating to its consumption of the CMMS Services; provided, however, Customer will not be responsible for taxes based on Flywheel’s income or profits; and
- any costs related to ensuring that the Property’s network and WiFi systems are setup to interface with the CMMS Services.
- Self-Service Customers.
- Use of the Service.
- Permitted Use. Subject to the terms and conditions set forth herein and in a Customer Agreement, if applicable, Flywheel grants to Customer a non-exclusive and non-transferrable right to use the Service. Customer agrees that Flywheel may modify the Service from time to time in its sole discretion, and that the Service and all software and proprietary information used by Flywheel or its partners in connection with providing the Service, together with all copyrights, patent rights, trade secret rights and other intellectual property rights therein or thereto, are and will remain the exclusive property of Flywheel or its partners, as applicable.
- Prohibited Use. The Service will be used by Customer solely for purposes of monitoring and managing equipment maintenance, energy consumption and team performance in the Customer’s building (the “Property”). Customer may not resell, rent, lease, timeshare or otherwise use or make available the Service to or for any third party. The Service will be provided to Customer’s authorized users on a confidential, password-restricted basis and subject to the terms herein. Customer shall not: (i) integrate the Service into or link it with another program or any part thereof for any purpose whatsoever, without the express written consent of Flywheel, (ii) attempt to reverse engineer or obtain unauthorized access to, or discover or decrypt, any software or other proprietary information of Flywheel that is used by Flywheel in connection with the provision of the Service or to use information learned in the course of using the Service for the purpose of developing a service or solution that is competitive with the Service, or (iii) modify or create derivative works based on the Service or any software or documentation used in connection therewith. Because a breach of Customer’s obligations under this provision would cause irreparable injury to Flywheel that could not be remedied adequately by an action at law for damages, Flywheel shall be entitled to injunctive and other equitable relief in the event of any such breach without need of posting bond. In addition, should Customer use the Service in a manner that is not authorized hereunder, Flywheel may, without prejudice to any other rights it may have, immediately terminate this Agreement and your access to the Service.
- Property Data.
- Ownership and Limited License to Flywheel. Use of the Service will entail transmission of the Property’s utility data to Flywheel, and certain features of the Service may permit you to submit and publish on or through the Service, or Flywheel to access on or through the Service, a variety of Customer-owned content and data concerning the Property (collectively, “Property Data”). Customer retains ownership of all Property Data submitted to or transmitted to Flywheel or its partners in connection with the use of the Service. Customer grants to Flywheel and its partners during and after the term of this Agreement a non-exclusive, irrevocable, perpetual, sublicenseable, worldwide right to use, copy, distribute, display, perform, and make derivative works of, such Property Data (solely in anonymized form) for the limited purpose of providing, operating, promoting and improving the Service, and for developing new services.
- Limited License to Other Users. By transmitting, publishing or sharing Property Data with other customers through the Service, you hereby grant the recipient of such Property Data a non-exclusive license to access and use such Property Data as permitted by these Terms and the functionality of the Service (including functionality that allows further sharing of such Property Data).
- Property Data Representations and Warranties. You are solely responsible for your Property Data and the consequences of posting or publishing Property Data. By transmitting, submitting, posting, publishing, or sharing Property Data, you affirm, represent, warrant, and covenant that:
- You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to submit, post, publish, and share such Property Data with Flywheel and others, and to authorize Flywheel and users of the Service to use and distribute your Property Data as necessary to exercise the licenses granted by you in this Section 5 and in the manner contemplated by these Terms; and
- Your Property Data, and the use thereof as contemplated herein, does not and will not: (a) infringe, violate, or misappropriate any third party’s rights, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (b) slander, defame, or libel any third party.
d. Property Data Disclaimer. We are under no obligation to edit or control Property Data that you or other users post or publish, and will not be in any way responsible or liable for Property Data. Flywheel may, however, at any time and without prior notice, screen, remove, edit, or block any Property Data that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to a variety of data and information from a variety of third party sources and acknowledge that such data and information may be inaccurate, offensive, indecent, inappropriate, or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Flywheel with respect to such data, or information, and we expressly disclaim any and all liability in connection with such data, or information. If notified by a user or content owner that Property Data allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion what course of action to take, which we reserve the right to do at any time and without notice. For clarity, Flywheel does not permit copyright-infringing or other unlawful activities within the Service.
e. Responding to Legal Process. Notwithstanding anything to the contrary in these Terms, we may disclose Property Data to law enforcement, government officials, or other third parties if: (i) we are compelled to do so by subpoena, court order or other legal process, (ii) we must do so to comply with laws, statutes, rules or regulations, including credit card rules, or (iii) we believe in good faith that the disclosure is necessary to prevent physical harm or financial loss, to report suspected illegal activity, or to investigate violations of these Terms.
- Changes to Terms. We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services with notice that we in our sole discretion deem to be reasonable in the circumstances, such as on our website. Any use of the Services after our publication of any such changes will constitute your acceptance of this Agreement as modified.
- Customer will indemnify, defend and hold harmless Flywheel, its officers, directors, employees, consultants, and affiliates, from and against any and all liabilities, losses, damages, costs and other expenses (including reasonable lawyers' and expert witnesses' fees, litigation, settlement, judgment, interest and penalty costs) arising from or relating to any claim caused by (i) Customer’s willful misconduct or negligent performance of its obligations under this Agreement, (ii) Customer's use of the Service in a manner not authorized by this Agreement or in violation of applicable law or these Terms, (iii) your Property Data, or (iv) Customer's alleged infringement or misappropriation of a patent, trademark, copyright, trade secret, or other proprietary rights.
- Flywheel will indemnify, defend and hold harmless Customer, its officers, directors, employees, consultants, and affiliates, from and against any and all liabilities, losses, damages, costs and other expenses (including reasonable lawyers’ and expert witnesses’ fees, litigation, settlement, judgment, interest and penalty costs) arising from or relating to any claims alleging that the Service infringes or misappropriates a patent, trademark, copyright, trade secret, or other proprietary rights; provided that Customer (i) notifies Flywheel promptly in writing of any such action, (ii) gives Flywheel sole control of the defense and/or settlement of such action, and (iii) gives Flywheel all reasonable information and assistance in connection with such action (at Flywheel’s expense). Flywheel will pay those costs and damages finally awarded against Customer in any such action, or those costs and damages agreed to in a monetary settlement of such action, that are specifically attributable to such action.
- WARRANTY DISCLAIMER. FLYWHEEL MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FLYWHEEL DOES NOT WARRANT THAT THE SERVICE WILL BE AVAILABLE ON AN UNINTERRUPTED OR DELAY-FREE BASIS OR THAT THE SERVICE WILL BE FREE FROM DEFECTS OR WILL MEET CUSTOMER’S REQUIREMENTS; AND FLYWHEEL DOES NOT PROVIDE ANY WARRANTY WITH RESPECT TO ANY RESULTS OBTAINED BY USING THE SERVICE. CUSTOMER ASSUMES ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE AND USE OF THE SERVICE. CUSTOMER ACKNOWLEDGES THAT NO PROMISES OR REPRESENTATIONS ARE MADE TO CUSTOMER THAT CUSTOMER WILL SAVE ENERGY COSTS AT THE PROPERTY AS A RESULT OF USING THE SERVICE.
- Limitation of Liability. IN NO EVENT WILL ANY LIABILITY OF FLYWHEEL HEREUNDER EXCEED THE GREATER OF (I) $500, OR (II) THE AMOUNT PAID BY YOU TO FLYWHEEL DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. FLYWHEEL SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RELATED TO THE SERVICE, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF USE, COST OF CAPITAL OR LOSS OF PROFIT OR BUSINESS OPPORTUNITY OR DATA, OR COST OF COVER, WHETHER SUCH LIABILITY ARISES OUT OF CONTRACT OR TORT (INCLUDING NEGLIGENCE, ACTIVE OR PASSIVE, AND STRICT LIABILITY BUT EXCLUDING WILLFUL MISCONDUCT). THE PARTIES AGREE THAT THE FOREGOING FAIRLY ALLOCATES THE RISKS IN THE AGREEMENT BETWEEN THE PARTIES.
- Assignment. Neither party shall assign this Agreement or any of its rights or obligations hereunder to a third party without the prior written consent of the other party, except to a successor to all or substantially all of such party’s assets or business (whether by asset purchase, stock purchase, merger or otherwise). Any attempt by either party to assign this Agreement other than as expressly permitted hereunder shall be null and void.
- Governing Law. The laws of the State of Texas, excluding its conflicts of laws rules, will apply to any disputes arising out of or relating to this Agreement or the Service. All claims arising out of or relating to this Agreement or the Service will be litigated exclusively in the federal or state courts of Dallas County, Texas, and Customer and Flywheel consent to personal jurisdiction in those courts. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT.
- General. This Agreement constitutes the complete and exclusive understanding and agreement of the parties with respect to your use of the Service, and supersedes all understandings and agreements (including any Customer Agreements) with respect to your use of the Service. No modification, renewal, extension, amendment shall be binding upon the party against whom enforcement of such modification, renewal, extension, or amendment is sought, unless made in writing and signed on behalf of such party by one of its duly authorized representatives. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permitted by law. The waiver of any breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of the same or other provisions hereof. Except as otherwise provided herein, all notices under this Agreement will be in writing and will be deemed to have been given (i) when received, if personally delivered, (ii) when receipt is electronically confirmed, if transmitted by facsimile, (iii) the day after it is sent, if sent for next day delivery by recognized overnight delivery service, and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. The following provisions of this Agreement will survive the Agreement’s expiration or termination: 1, 2, 4, 5, 7, 8, 9, 11, 12 and 13.
- Authority. If you are entering into this Agreement on behalf of an entity, such as a corporation, partnership, limited liability company or other entity, "Customer", “you” or “your” refer to the entity, and you represent and warrant that by registering on our website or using the Service in any way (i) you have power and authority to enter into this Agreement on behalf of the entity, and (ii) you confirm your acceptance of, and agree to be bound by, this Agreement.
Last updated September 20, 2016