Pynwheel Terms of Service

1. Definitions

“Aggregated Statistics” means data and information related to Client's access and use of the Services or Licensed Product that is used by Pynwheel in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Licensed Product.

“Client Data” means information and documentation supplied to Pynwheel for use in the Licensed Product such as Client’s property map, floor plan drawings, photos of the Designated Location, descriptions, locations of Designated Location amenities, pricing, availability of inventory and other related data specific to the Designated Location.

“Designated Location” means the physical premises for which Client will allow access to the Licensed Application users and that are identified in the applicable Order Form or other mutually executed modification. Additional properties may be added to this Agreement through a mutually executed modification, including without limitation (i) execution of an addendum or order form by Client and countersignature by Pynwheel, or (ii) submission of an Order Form or other written request by Client referencing this Agreement and acceptance by Pynwheel, which may be evidenced by invoicing, provisioning of Services, or commencement of performance.

“Intellectual Property Rights” means all proprietary information including, without limitation, software, firmware, web pages, patents, patent applications, trademarks, trade names, service marks, certification marks, collective marks, designs, processes, inventions, licenses, copyrights, know-how and trade secrets relating to the origin, design, manufacture, programming, operations, function, configuration, or service.

“Licensed Documentation” means all written materials, and other materials supplied by Pynwheel and related to the Services.

“Licensed Product” means, collectively, the Licensed Software, Licensed Documentation, and Licensed Application.

“Licensed Software” means the unique and proprietary software, services and access to a proprietary client portal related to the data collected through the Services, together with all Upgrades supplied by Pynwheel, and all permitted copies of the foregoing.

“Licensed Application” means any software application, firmware or hardware produced and provided by Pynwheel which will be used by Client under this Agreement.

“License Period” means the period during which Client is authorized to access the Licensed Product under this Agreement.

“Pricing Schedule” means the pricing for the Services and Licensed Product selected by Client in an applicable Order Form, as made available by Pynwheel at the time of execution or electronic acceptance of such Order Form, as may be updated from time to time in accordance with this Agreement.

“Upgrades” means, collectively, all upgrades, bug fixes, improvements, enhancements, additions and revisions made to the Licensed Product.

“User Data” means personally identifiable information and other sensitive information and data collected by Pynwheel through the Services. User Data may include, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers; or passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit card information, student information, and other personal identifiers such as photographs and driver's licenses.

2. Access and Use

The Licensed Product granted under this Agreement is transferable, subject to the prior written consent of Pynwheel, which shall not be unreasonably withheld. Client may assign or transfer this license to its related parties or successor entities, provided that the transferee agrees in writing to be bound by the terms and conditions of this Agreement. Any unauthorized transfer or assignment shall be null and void. Such access and use is limited to Client's internal business use. Pynwheel shall provide to Client the necessary passwords and network links or connections to allow Client to access the Licensed Product. Client agrees to accommodate and facilitate Pynwheel’s reasonable request for on-site or remote access to the Services and Licensed Product, including any touchscreen computer, for service requests, upgrades and other performance measures. Pynwheel may coordinate installation with Client and third-party service providers for on-site service which is under the direction of the Client. Pynwheel bears no responsibility for any on-site work performed by any third party for the Services.

3. Client Responsibilities

Protection of Client Data and User Data

Client agrees to be responsible for maintaining and submitting content and data to Pynwheel in the formats specified by Pynwheel and agrees to hold Pynwheel harmless from any claims against Pynwheel or Client related to Client’s data, content, products, services and activity provided by Client’s employees, contractors, representatives or assigns or by a third party. Client is responsible for the accuracy of Client Data. Client will comply with applicable laws and regulations in its creation, collection, receipt, access, use, storage, disposal, and disclosure of User Data. This information will be treated in accordance with all applicable laws and regulations and Client's privacy policy, as amended from time to time, and Client will use only secure methods, according to accepted industry standards, when using, transferring or otherwise making available User Data. Client understands and agrees that Pynwheel shall in no way be held responsible for the data, content, products, services or activity provided by Client’s employees, contractors, representatives or assigns or by a third party including but not limited to YARDI, Inc., RealPage, Inc., Property Solutions International, Inc. and MRI Software, LLC.

The following clauses are only applicable if Client has purchased the Licensed Product entitled Pynwheel Tour:

Client is responsible and liable for all uses of the Services, Licensed Product and documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Client agrees to implement all aspects of the Licensed Product as intended.

The use of the Services, Licensed Product at the Designated Location(s) allows consumers to enter the Designated Location(s). Client agrees to keep Designated Location(s) free from hazards, neat, clean, and in good repair. Pynwheel or Client may deny any individual access to and/or use of the Licensed Product at any time in its sole discretion.

Purchased Hardware

Client acknowledges and agrees that it shall be solely responsible for the ongoing maintenance, care, and proper functioning of any hardware purchased under this Agreement. This includes, but is not limited to, routine upkeep, repairs, updates, and any necessary replacements to ensure the hardware operates efficiently. Pynwheel shall not be liable for any damages, malfunctions, or performance issues resulting from Client’s failure to maintain the hardware appropriately after the purchase has been completed.

Software Maintenance

Client agrees to provide Pynwheel remote access to the Licensed Product for the purpose of performing necessary maintenance, updates, troubleshooting, and support services. This remote access will be conducted using secure, encrypted connections and will comply with applicable data protection and security protocols. Both parties agree that remote access is critical for timely and efficient software maintenance and support.

Client Intellectual Property Representations

Client represents and warrants that it owns or has obtained all necessary rights, licenses, consents, and permissions to provide any Client Data, images, floor plans, renderings, photographs, copy, or other materials to Pynwheel for use in connection with the Services and Licensed Product, including for commercial use and use in third-party platforms, websites, and applications. Client shall be solely responsible for any claims arising from materials provided by Client and shall indemnify, defend, and hold harmless Pynwheel from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any breach of this representation.

4. Restrictions on Use

Client will not:

1. create or enable the creation of competing or derivative works, modifications, or adaptations of the Services or Licensed Product;
2. decompile, reverse engineer, disassemble, or otherwise attempt to derive the source code, structure, algorithms, or underlying ideas of the Licensed Product;
3. distribute or disclose the Licensed Product to third parties other than as expressly permitted hereunder;
4. use any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the Licensed Software;
5. rent, sublicense or otherwise allow any third party to access the Licensed Product;
6. access or use the Services or Licensed Product in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
7. access or use the Services or Licensed Product for any purpose other than as set forth in this Agreement;
8. analyze, benchmark, or otherwise observe the Licensed Product for the purpose of replicating, copying, or creating a competing product or service; or
9. access or use the Services or Licensed Product to develop, build, train, or improve any competing product or service.

5. Ownership, License and Feedback

Ownership

Pynwheel retains all title to the Licensed Product (both as recorded on the original media and on any subsequent media), including the Licensed Documentation, Licensed Software and Licensed Application, and any copies thereof in any form. This Agreement is a license to use, and not a contract of sale for, the Licensed Product. All Intellectual Property Rights in and to the Licensed Product are retained by Pynwheel. Client agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Licensed Software, the Licensed Documentation, the Licensed Application and any copies thereof in any form. All rights not licensed hereunder are expressly reserved by Pynwheel.

Client Data and User Data Collection

Pynwheel may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Client's use of the Licensed Product, that Pynwheel may gather periodically to improve the performance of the Licensed Product or develop maintenance releases for the Licensed Product. Client acknowledges that, as between Pynwheel and Client, Client owns all right, title, and interest, including all Intellectual Property Rights, in and to the Client Data and User Data. This information will be treated in accordance with Pynwheel's privacy policy, as amended from time to time, which can be viewed at: https://pynwheeltouchscreens.com/privacy-policy.

Client Data License

For the License Period, Client understands that by submitting Client Data to Pynwheel either directly or via Pynwheel’s Licensed Product, Client is giving Pynwheel a perpetual, irrevocable, transferable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly display, and distribute any such content. Client further understands that users may copy, share, modify, broadcast, or otherwise use content submitted by Client to Pynwheel and that Pynwheel bears no responsibility for this activity.

User Data License

Client understands that by submitting User Data to Pynwheel either directly or via Pynwheel’s Licensed Product, Client is giving Pynwheel a perpetual, irrevocable, transferable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly display, and distribute such content to perform all acts with respect to the User Data as may be necessary for Pynwheel to provide the Licensed Product and its services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free license to reproduce, distribute, modify, and otherwise use and display User Data incorporated within the Aggregated Statistics.

Aggregated Statistics

Notwithstanding anything to the contrary in this Agreement, Pynwheel may monitor Client's use of the Licensed Product and collect and compile Aggregated Statistics. As between Pynwheel and Client, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Pynwheel. Client acknowledges that Pynwheel may compile Aggregated Statistics based on Client Data and User Data input into the Licensed Product. Client agrees that Pynwheel may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.

Feedback

If Client or any of its employees or contractors or authorized users sends or transmits any communications or materials to Pynwheel by mail, email, telephone, or otherwise, suggesting or recommending changes to the Licensed Product, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Pynwheel is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Client hereby assigns to Pynwheel on Client's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Pynwheel is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Pynwheel is not required to use any Feedback.

6. Confidentiality

1. Client acknowledges that the Services, Licensed Product and the attributes of the Licensed Product including, without limitation, the design, functionalities, and performance characteristics, and any other non-public verbal or written information that may be supplied by Pynwheel to Client during the term of this Agreement, or obtained through Client's use of the Licensed Product, are confidential and proprietary information of Pynwheel (“Confidential Information”).
2. Client will maintain the confidentiality of all Confidential Information during the term of this Agreement and thereafter, in the same manner that it maintains its own confidential information, but with no less than a reasonable degree of care.
3. Client will:
   1. not disclose, provide, or otherwise make available any Confidential Information or the existence or terms of this Agreement to any third party without the prior written consent of Pynwheel;
   2. limit internal access to any Confidential Information only to Client's employees who have a need to access the Licensed Product or any Confidential Information; and
   3. not use any Confidential Information for any purpose other than use of the Licensed Product and Services in Client's business environment and for the Licensed Product and Services’ intended use.
4. The obligations set forth in this Section will not apply to Confidential Information that Client can document:
   1. is generally available to the public other than through a breach of this Agreement;
   2. was independently developed by Client without reference to Pynwheel's Confidential Information; or
   3. was already lawfully in Client's possession at the time of receipt of the Confidential Information from Pynwheel.
5. Use Restrictions; Injunctive Relief. Client acknowledges that the Services, Licensed Product, and all related materials, workflows, configurations, and non-public information constitute Pynwheel’s Confidential Information.
   1. Client shall not, during the term of this Agreement or at any time thereafter, directly or indirectly use any Confidential Information to develop, assist in the development of, or enable any competing product or service;
   2. Client shall not provide or make available any Confidential Information to any competitor of Pynwheel; and
   3. Client shall not otherwise use Confidential Information for the benefit of any third party.
   Client acknowledges that any breach of this Section would cause irreparable harm to Pynwheel for which monetary damages would be insufficient, and that Pynwheel shall be entitled to seek immediate injunctive relief, in addition to any other remedies available at law or in equity.

7. Independent Consultant

All Services performed by Pynwheel will be as an independent consultant based on Pynwheel’s own efforts, knowledge, training and know-how. Client understands that Pynwheel will or may be using or creating Pynwheel’s own confidential proprietary knowledge, information, processes, product designs and code as part of the services being performed by Pynwheel for Client. The knowledge, information, processes, product designs and code are, will be, and will remain the intellectual property and trade secrets of Pynwheel. Client agrees to maintain this and all Pynwheel intellectual property, proprietary information, trade secrets and copyrighted material in confidence.

8. Cost

During the term of this Agreement, Client agrees to make payments to Pynwheel in accordance with the Pricing Schedule, any additional services mutually agreed upon and as identified in the applicable Order Form or Payment Terms section. Pynwheel shall be free to amend the Pricing Schedule applicable to this Agreement at any time with written notice to Client at least 60 days in advance of such amendments going into effect. All fees and other amounts payable by Client are exclusive of taxes and similar assessments, which are the responsibility of Client.

9. Payment Terms

Fees are due in advance and are non-refundable and not prorated. The first subscription fee for each service is due on the first day of the month following receipt of payment for Setup Fee(s) or, if no Setup Fees pertain, then on the first day of the month following the execution or electronic acceptance of the applicable Order Form. Subscription fees are due annually on the same month and date as the first subscription fee, each consecutive year.

All fees are non-refundable and not subject to proration under any circumstances. In the event of termination for any reason, including by Client for convenience or by Pynwheel for breach, Client shall not be entitled to any refund, credit, reimbursement, or offset of any prepaid fees, including any unused portion of the Services.

10. Taxes

Client will pay any and all taxes pertaining to the Licensed Product or the use of the Licensed Product during the term of this Agreement, including but not limited to property and/or use taxes, and will reimburse Pynwheel on Pynwheel's request if Pynwheel is required to pay any such tax.

11. Term and Termination

This Agreement and all rights and responsibilities herein become effective upon execution or electronic acceptance of an Order Form referencing these Terms of Service and will continue in effect so long as the Services are provided under this Agreement. Either party may terminate this Agreement by giving 30 days’ written notice to the other party. Notwithstanding the foregoing, Pynwheel shall have the right to suspend service or terminate this Agreement immediately upon written notice to Client in the event that there is any breach or suspected breach of this Agreement by Client, including any failure to pay any fee or charge, upon 10 days’ advance written notice.

Upon termination, Client shall immediately pay to Pynwheel all amounts incurred prior to the effective date of termination per the Fees and Payment Terms, and Client shall allow Pynwheel remote access to the hardware to remove the software application and Pynwheel’s proprietary content and Confidential Information. If remote access is no longer available, Client shall remove and destroy all of Pynwheel’s proprietary content and Confidential Information and will certify upon request by Pynwheel such removal and destruction.

12. No Warranties

Pynwheel makes no representations or warranties whatsoever and Client has not relied on any representation or warranty, express or implied, regarding the hardware, software, services and performance, including the Licensed Product. Without limiting the generality of the foregoing, Client acknowledges and agrees that Client is accepting the hardware, services and licensing the Licensed Product on an “as is” basis with all faults and without any express, implied or statutory warranties whatsoever including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title, enforceability, non-infringement, or arising from course of performance, dealing, usage or trade.

Pynwheel makes no warranty of any kind that the hardware, services or Licensed Product, or results of the use thereof, will meet Client's or any other person's requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error free.

Manufacturer’s warranty may apply to hardware only. Client understands that any modification to the hardware, including custom housing, and improper installation of hardware may result in nullification of the manufacturer’s warranty and that Client bears all responsibility for any loss or damage that is suffered as a result including (a) any loss of profits, loss of anticipated savings, loss of goodwill or loss of revenue; (b) any loss or corruption of data; (c) any damage to hardware, including but not limited to hardware purchased from Pynwheel; (d) personal injury or death; or (e) any incidental, consequential, special, indirect, exemplary or punitive damages.

13. Limitation of Liability

In no event will Pynwheel be liable to Client for any incidental, indirect, consequential, special, exemplary or punitive damages of any kind, including but not limited to lost revenues or profits, arising from or relating to this Agreement, regardless of whether Pynwheel was advised, had other reason to know, or in fact knew of the possibility thereof, even if a remedy set forth herein is found to have failed of its essential purpose. In no event will Pynwheel's liability to Client under this Agreement exceed Client’s cost of the Services or Licensed Product in the aggregate. No action shall be brought by Client for any claim relating to or arising out of this Agreement more than one year after the accrual of such cause of action. Pynwheel shall not be liable for any delays caused by events beyond Pynwheel’s control whether by force majeure or otherwise.

14. Indemnification

Client will be solely responsible for, and will indemnify, defend, and hold Pynwheel harmless from all damages, liabilities, charges, and expenses, including reasonable attorneys' fees, from all claims, lawsuits, or other proceedings arising out of or relating to:

1. Client's use of the Services or Licensed Product in a manner not permitted by this Agreement, not permitted by Pynwheel, or not in conformance with Pynwheel's written requirements;
2. any acts or omissions of Client, its employees, agents or any persons or entities who have access through Client to the Services or Licensed Product; or
3. any infringement of any right resulting in any way from the use of the Services or Licensed Product with other software or materials not licensed to Client by, or not approved by, Pynwheel.

15. Rights and Remedies

All rights and remedies conferred by this Agreement or by law are cumulative and may be exercised singularly or concurrently. Client acknowledges that any unauthorized use, copying, disclosure, or distribution of the Services or Licensed Product or any related methods, algorithms, techniques, processes or other information, will cause Pynwheel irreparable harm for which there is no adequate remedy at law, entitling Pynwheel to injunctive relief in addition to any other legal or equitable remedies.

16. Assignability

This Agreement and all rights, obligations, and interests hereunder shall not be assigned or transferred by Client without the prior written consent of Pynwheel, except that Client may assign this Agreement, without such consent, to any successor entity resulting from a merger, consolidation, reorganization, or acquisition of substantially all of its assets or equity, provided that Client provides written notice to Pynwheel within 30 calendar days of assignment. Any attempted assignment in violation of this provision shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

17. Amendments; Waivers

This Agreement may be modified or amended by a written instrument signed by the parties. Notwithstanding the foregoing, Pynwheel may update or modify certain terms of this Agreement from time to time by posting updated terms at https://pynwheel.com/terms (or such other URL as Pynwheel may designate from time to time, the “Online Terms”) and providing notice to Client. Such notice may be provided by electronic mail, by notification within the Licensed Product or Client portal, or by other reasonable means. The Online Terms are incorporated by reference into this Agreement. Continued use of the Services following such notice constitutes acceptance of the updated Online Terms. Any material changes to the Online Terms will not take effect until at least thirty (30) days after notice is provided to Client.

No waiver of any provision of this Agreement will be binding unless set forth in a writing signed by the party granting the waiver. Any waiver will be limited to the circumstance or event specifically referenced in the written waiver document and will not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.

18. Notices

Any notice required or permitted to be given under this Agreement will be in writing and be deemed given when delivered by electronic mail or courier service addressed to the party to receive such notice at the address designated below or any other address substituted therefor by notice pursuant to these provisions:

Pynwheel: 3330 S. Broadway, Box 523, Englewood, CO 80113

Client: Refer to the address(es) and contact information in the applicable Order Form(s)

19. Governing Law and Submission to Jurisdiction

This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, in each case located in the City and County of Denver, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

20. Enforcement

If any party institutes legal action to enforce or interpret the terms and conditions of this Agreement or to collect any monies under it, venue for any such action will be Denver County, Colorado. Each party irrevocably consents to the jurisdiction of the courts located in the State of Colorado for all suits or actions arising out of this Agreement. Each party hereby waives, to the fullest extent possible, the defense of an inconvenient forum, and each agrees that a final judgment in any action will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

21. Waiver of Jury Trial

Each party hereby knowingly, voluntarily and intentionally waives the right to trial by jury in any action or proceeding based on or with respect to this Agreement or any of the transactions contemplated hereby or relating or incidental hereto.

22. Severability

Each provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity will not affect the legality or validity of the remainder of the Agreement.

23. Entire Agreement

This Agreement contains the entire understanding among the parties and supersedes any prior written or oral agreements between them respecting the subject matter of this Agreement. There are no representations, agreements, arrangements, or understandings, oral or written, between the parties relating to the subject matter of this Agreement that are not fully set forth herein.

24. Counterparts; Electronic Signatures

This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which will constitute one agreement. Photocopies, scanned transmissions, or email transmissions of Adobe portable document format files, also known as “PDF” files, of signatures will be deemed original signatures and will be fully binding on the parties to the same extent as original signatures.

Electronic signatures, click-through acceptances, checkbox acknowledgments, and electronic submissions of Order Forms shall each constitute valid and binding signatures and acceptance of this Agreement to the fullest extent permitted by applicable law.

By executing, electronically accepting, or electronically submitting an Order Form referencing these Pynwheel Terms of Service, Client, on behalf of itself and each of its subsidiaries and affiliates using the Services or Licensed Product, acknowledges that it has reviewed and agrees to be bound by these Terms of Service, which are incorporated into and form part of the applicable Order Form. Client further represents and warrants that the individual accepting, checking a box agreeing to, or submitting the Order Form has authority to bind Client and its subsidiaries and affiliates to these Terms of Service.

Pynwheel will provide the Services and Licensed Product described in the applicable Order Form in accordance with these Terms of Service and the applicable Pricing Schedule.