These Connected Services Terms of Service apply to provision or
performance of Connected Services by Trane (herein “Company”) to the
user, beneficiary, and/or owner (herein “Customer”).
1. Access Grant to Company. Customer hereby grants
to Company the right to access, monitor, control and use Customer’s
equipment, products, controls, systems, and system elements,
including, but not limited to, building automation systems (“BAS”),
HVAC equipment, meters, and loggers (each a “Connected System”) and
Customer’s network, network infrastructure, telephone line, modem, and
other communication equipment (“Communication Systems” and, together
with Connected Systems, “Systems”) to perform any of the following
services (collectively, the “Connected Services”): (i) view, collect,
extract, transmit, process, and use data relating to the performance
and condition of Connected Systems (“System Data”) and Customer’s
account information (together, “Customer Data”); (ii) diagnose,
operate, modify, repair, and service Connected Systems, as requested
by Customer; (iii) deliver services to Customer, including, without
limitation, services (pursuant to a subscription agreement) through a
web-based application hosted by Company, such as, but not limited to,
Trane intelligent services, Tracer™ Synchrony, Tracer™ Ensemble,
Energy Assessment, Active Monitoring, Building Performance, and Energy
Performance (each and collectively referred to as “Hosted Services”);
(iv) perform statistical or other analyses for its own purposes or on
behalf of Customer, including, without limitation, analyses,
histories, and trends based on metrics relating to engineering,
failure, warranty, energy, predictive, service, and product usage; (v)
install patches, bug fixes, updates, and other modifications
(“Updates”); (vi) back up and/or restore Customer Data; (vii)
investigate Security Incidents (as defined in the “Security Breach
Notice” section below); (viii) verify compliance with these terms and
any other terms applicable to the Connected Services, and (ix) perform
other functions reasonably required to provide the contracted services
and comply with applicable laws and regulations. Company’s obligation
to perform any Connected Services will depend upon products and
services purchased from Company.
2. Systems. If Customer has purchased any
Connected Services, Customer shall ensure that the Systems are made
available, maintained, installed, and configured for the Connected
Services and that Customer Data is available for collection. Company
may provide Customer with recommended System elements, configurations,
installations, and security measures. Customer acknowledges that the
Connected Services do not include support of Customer’s computer
hardware, internet browsers, or Communication Systems. Company shall
have no liability for (i) losses or the inability to perform due to
malfunctioning or unavailable Systems; (ii) Customer’s failure to
comply with Company recommendations in writing; (iii) the failure to
identify performance issues with the Systems or recommend corrective
action to Customer; or (iv) any adverse impact to the Systems. Where
Customer becomes aware in the ordinary course that Customer Data is
not being collected, Customer is responsible for requesting support
through the local Company office.
3. Users. Customer may be required to designate
User(s) for purposes of accessing certain Connected Services.
Customer shall use commercially reasonable efforts to ensure Users
maintain the confidentiality of access credentials. Customer is
solely responsible for User actions with regard to access to or use of
the Connected Services, including from devices and workstations that
interface with Connected Services. Customer shall designate a System
Administrator to manage Users’ access, including adding and
subtracting Users. The System Administrator shall ensure that multiple
Users do not share access credentials. Company has the right to
terminate or suspend access to the Connected Services at any time if
Company believes in good faith that such termination or suspension is
necessary to preserve the security, integrity, or accessibility of the
Connected Services, Confidential Information, or Company’s network.
4. Availability. Customer acknowledges that the
availability, use, and reliability of the Connected Services, in whole
or in part, depends on Communication Systems and third-party product
vendors and service providers, including, without limitation,
Customer’s internet service and telecommunications provider(s)
(“Third-Party Vendors”). Customer also acknowledges that Company has
no control over the reliability of Third-Party Vendors. Customer
acknowledges and agrees that Company shall not be held liable
whatsoever for losses or Service, delivery, or performance failures
attributable in whole or in part to Third-Party Vendors’ outages or
system failures.
5. Customer Data. All Customer Data shall be owned
by Customer. Customer hereby grants to Company an irrevocable,
perpetual, nonexclusive, worldwide, royalty-free, sublicenseable, and
transferable right to process, reproduce, modify, display, distribute,
prepare derivative works, and otherwise use Customer Data to perform
the Connected Services and for marketing purposes, subject to the
limitations applicable to Confidential Information. Customer warrants
to Company that its provision of Customer Data will not infringe upon
the intellectual property rights or other legal rights of any person
and will not breach any applicable law or regulation. Company shall
not publicly disclose such data in any way that identifies Customer as
the source of the Customer Data without Customer’s prior written
consent. Upon Customer’s written request, Company will endeavor to
provide Customer with a copy of Customer Data to the extent then
available. Customer acknowledges and accepts that Company does not
guarantee the availability of Customer Data.
6. Disaster Recovery. In the event Company
experiences a problem with the Connected Services that results in or
is expected to result in a loss of service in excess of five working
days, Company may transfer the Connected Services to an alternative
hosting environment. In such event, Customer acknowledges the
following: (i) data imported after the most recent database backup may
be lost; (ii) Company may use a different IP address to provide the
Connected Services; (iii) Customer may be required to access the
Connected Services via a different IP address and/or domain name; and
(iv) data collection may not be available.
7. Privacy. In providing the Connected Services,
Company will comply with the Trane Technologies Data Protection and
Privacy Policy, available at https://www.tranetechnologies.com/en/index/privacy-policy.html
and incorporated herein by reference (“Privacy Policy”). The Privacy
Policy is subject to change at Company’s discretion, provided that
such changes will not result in a material reduction in the level of
protection for Customer Data during the period for which Connected
Services fees have been paid.
8. Confidential Information. The Parties agree to
take, at a minimum, commercially reasonable security precautions to
protect Confidential Information at all times, both during the term
hereof and for a period of at least 3 years after the Confidential
Information was furnished; provided, however, that any proprietary and
trade secret information shall be held in confidence in perpetuity.
Customer shall not permit any third party to access the Connected
Services or physical hardware deployed at Customer’s facilities to
enable operation of the Connected Services except as expressly
permitted in a written agreement between the parties. Customer
acknowledges that, due to the nature of communication via the
internet, Company cannot guarantee the security of Confidential
Information or electronic communications passing over the internet.
Customer therefore acknowledges that by using the Connected Services,
Customer accepts all risks associated with access to and storage of
Customer Data.
9. Security. Company has implemented various
security measures for the purpose of protecting User’s data against
accidental or unlawful access, unauthorized disclosure, loss,
destruction, and alteration. Customer and Users are responsible for
maintaining the confidentiality of User name(s) and password(s).
Customer and Users are responsible for all uses of password(s),
whether or not authorized by Customer or Users. Customer must inform
Company immediately of any unauthorized use of User name(s) or
password(s). Transmission of data over the Internet by its nature
entails the use of systems under the control of third parties, and as
a result Company cannot ensure total control of the security of such
systems. Company will take commercially reasonable efforts to ensure
that data and other configuration parameters are not visible or
accessed by other customers. Customer and Users acknowledge that the
very nature of communication via the Internet restricts Company from
offering any guarantee of the privacy or confidentiality of
information relating passing over the Internet. In gaining access via
the Internet, Customer and Users also acknowledge and accept that
electronic communication may not be free from interference by
unauthorized persons and may not remain confidential and accept that
access and storage of data is at Customer’s and Users’ own risk.
Customer shall immediately notify Company in writing of any actual or
suspected unauthorized use of any Customer account or disclosure of
Confidential Information (“Security Incident”). Customer shall
cooperate with reasonable Company requests to investigate Security
Incidents, regain possession of Confidential Information, and prevent
further Security Incidents.
10. Maintenance Services. Depending on the type of
Connected Service, Company may, but is not obligated to, automatically
install Updates without providing additional notice or obtaining
additional consent from Customer. Company may also provide Updates to
Customer to install on its Connected Systems. Customer acknowledges
that Updates may result in the Connected Services being unavailable
from time to time. Company shall have no liability for any losses
resulting from Customer’s failure to install or to permit Company to
install an Update or from the periodic unavailability of the Connected
Services due to Updates.
11. Third-Party Products. The Connected Services may
provide links to third-party websites and enable Customer to access
content, products, and services of third parties (“Third-Party
Products”). Customer acknowledges that Third-Party Products are not
under Company’s control, and Company does not review, approve,
monitor, endorse, warrant, or make any representations with respect to
Third-Party Products. COMPANY HEREBY DISCLAIMS AND CUSTOMER HEREBY
DISCHARGES, WAIVES AND RELEASES COMPANY AND ITS LICENSORS AND
SUPPLIERS FROM ANY PAST, PRESENT, AND FUTURE CLAIMS, LIABILITIES,
AND DAMAGES, KNOWN OR UNKNOWN, ARISING OUT OF OR RELATING TO
CUSTOMER INTERACTIONS WITH THIRD-PARTY PRODUCTS. CUSTOMER
HEREBY WAIVES CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH
THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.” CUSTOMER HEREBY WAIVES ANY SIMILAR PROVISION IN ANY
OTHER JURISDICTION.
12. Company Liability. Customer agrees that Company,
its affiliates and their respective directors, officers, employees and
agents, and its licensors and suppliers shall not be liable for any
damages, liabilities, claims or demands (including costs and
attorneys’ fees) made by any third party due to or arising out of
Customer’s and each User’s (i) use of the Connected Services and any
associated deliverables; (ii) violation of the terms applicable to
Connected Services; (iii) Company’s possession or use of data,
information or articles supplied by Customer to Company; and (iv)
violation of any law or the rights of any third party, including, but
not limited to, the infringement of intellectual property rights
resulting from the use or possession by Company of Customer Data.
Notwithstanding the foregoing, Customer shall not be liable for the
negligent acts or omissions of Company. Company reserves the right to
assume, at Customer’s expense, the exclusive defense and control of
any matter for which Customer is required to indemnify Company, and
Customer agrees to cooperate with Company’s defense of such claims.
Customer agrees not to settle any such claim without Company’s prior
written consent. Company will use reasonable efforts to notify
Customer of any such claim, action or proceeding upon becoming aware
of it.
13. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS
LICENSORS AND SUPPLIERS PROVIDE THE CONNECTED SERVICES “AS IS” AND
DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND
NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM COMPANY OR THOUGH
THE CONNECTED SERVICES SHALL CREATE ANY WARRANTY. COMPANY AND
ITS LICENSORS AND SUPPLIERS DO NOT MAKE ANY WARRANTY AS TO THE
RESULTS THAT MAY BE OBTAINED FROM THE CONNECTED SERVICES, OR AS TO
THE TIMELINESS, EFFICACY, OPERABILITY, COMPLETENESS, ACCURACY,
RELIABILITY OR CONTENT OF THE CONNECTED SERVICES, OR OF ANY DESIGN,
FUNCTION, PROCESS, INFORMATION, SERVICE, OR MERCHANDISE PROVIDED
THROUGH OR BY THE CONNECTED SERVICES.
14. Customer acknowledges that complex software
applications are never entirely free from defects, errors, bugs, or
vulnerabilities, and that the use of a remote connection is never
entirely secure or free from interruption. NOTWITHSTANDING ANYTHING
TO THE CONTRARY, COMPANY AND ITS LICENSORS AND SUPPLIERS DO NOT
WARRANT THAT THE CONNECTED SERVICES WILL BE UNINTERRUPTED, SECURE OR
ERROR FREE OR THAT COMPANY WILL CORRECT ALL ERRORS.
15. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL
COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR
INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST
PROFITS) ARISING FROM OR RELATING TO THE CONNECTED SERVICES, EVEN IF
COMPANY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH
DAMAGES, AND (B) COMPANY’S TOTAL CUMULATIVE LIABILITY ARISING FROM
OR RELATED TO THE CONNECTED SERVICES, WHETHER IN CONTRACT OR TORT OR
OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO
COMPANY FOR THE PORTION OF THE CONNECTED SERVICES AT ISSUE IN THE
PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT
BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
16. Definitions. The following definitions apply to
these Connected Services Terms:
16.1. “Company” shall mean Trane Canada ULC for a sale
in Canada and Trane U.S. Inc. for a sale in the United States.
16.2. “Confidential Information” means information
including, without limitation, Customer Data, computer programs,
software, code, algorithms, know-how, formulas, processes, ideas,
inventions (whether patentable or not), schematics and other
technical, business, financial and product development plans,
forecasts, strategies and information that Customer or Company know or
should reasonably know based on the circumstances of disclosure is
confidential to the disclosing party. Confidential Information
excludes information that: (i) was or becomes publicly known through
no fault of the receiving party; (ii) was rightfully known or becomes
rightfully known to the receiving party without confidential or
proprietary restriction from a source other than the disclosing party;
(iii) is independently developed by the receiving party without the
participation of individuals who have had access to the Confidential
Information; (iv) is approved by the disclosing party for disclosure
without restriction in a written document which is signed by a duly
authorized officer of such disclosing party; or that (v) the receiving
party is legally compelled to disclose; provided, however, that prior
to any such compelled disclosure, the receiving party will (a) assert
the privileged and confidential nature of the Confidential Information
against the third party seeking disclosure and (b) cooperate fully
with the disclosing party in protecting against any such disclosure
and/or obtaining a protective order narrowing the scope of such
disclosure and/or use of the Confidential Information. In the event
that such protection against disclosure is not obtained, the receiving
Party will be entitled to disclose the Confidential Information, but
only as, and to the extent, necessary to legally comply with such
compelled disclosure.
16.3. "User" means an individual who
has been authorized by Customer to use, and who has been supplied user
identification and a password to access, the Connected Services by
Customer (or by Company at Customer's request). Users may include but
are not limited to Customer's employees, consultants, contractors and
agents; or third parties with which the Customer transacts business.
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