1. Johnson Controls
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  3. Digital
  4. Xaap Supplemental Terms

Xaap Supplemental Terms and Conditions

These Xaap Supplemental Terms and Conditions (these “Supplemental Terms”) are supplemental terms for and apply solely to the following Service: Xaap and its successor products. These Supplemental Terms are part of and supplement the JCI Terms of Service (the “Terms of Service”) between JCI and you (as defined in the Terms of Service) available at http://www.johnsoncontrols.com/buildings/legal/digital/generaltos.

A. Conflicts.    To the extent there is any conflict between these Supplemental Terms and the Terms of Service, the terms of these Supplemental Terms will control. The terms and conditions of the Terms of Service that are not modified or amended by these Supplemental Terms will remain in full force and effect and remain applicable to the Service. Capitalized or otherwise defined terms not defined in these Supplemental Terms have the meaning given to them in the Terms of Service.

B. Supplemental Terms.

(a) Equipment Lease Terms.  Any hardware and equipment (the “Equipment”) provided as part of the Service is not sold, but rented to you.  The lease terms for the Equipment are as follows:

These lease terms (the “Lease Terms”) apply to the Equipment being rented and leased as part of the Service.  Capitalized terms used but not defined in these Lease Terms will have the meaning set out in the applicable Order.

  1. Lease and Operation. JCI agrees to lease to Customer, and Customer agrees to lease from JCI, the Equipment. Customer shall at its expense keep and maintain the Equipment in a good state of repair, normal wear and tear excepted, and shall use the Equipment only for its intended purpose and follow JCI's instructions regarding the use and maintenance of the Equipment.
  2. Rent. In consideration of Customer's right to possess and use the Equipment during the Lease Term (as defined in Section 7), Customer shall pay the rent at the rate and on the terms specified in the Order ("Rent").
    If by the expiration of the Lease Term, Customer does not return the Equipment to JCI in the condition and on the terms and conditions of Section 5, Customer shall continue to comply with all the terms and conditions of this Agreement, including the obligation to pay 110% of the prorated Rent for each day from the expiration of the Lease Term until the date on which Customer returns such Equipment to JCI in the manner required under Section 5 ("Holdover Rent"). Customer shall not construe anything contained in this Section, including Customer's payment of Holdover Rent, as JCI's (a) waiver of Customer's failure to perform any obligation under this Agreement; or (b) assent to any renewal of this Agreement.
  3. Limited Warranty. JCI shall replace the Equipment with identical or similar Equipment if the Equipment fails to operate in accordance with the manufacturer's specifications and operation instructions. Such replacement shall be made as soon as practicable after Customer returns the non-conforming Equipment. Customer shall return all non-conforming Equipment at its expense and risk of loss to JCI to the destination specified by JCI.
    The limited warranty above does not apply where the Equipment has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by JCI, or used with any Third-Party Product, hardware, software, or product that has not been approved in writing by JCI.

    OTHER THAN AS SET FORTH ABOVE, JCI MAKES NO WARRANTY WHATSOEVER RELATED TO THE EQUIPMENT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INTERFERENCE; OR (d) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. THE REMEDIES SET FORTH IN THIS SECTION ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES AND JCI'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
  1. Title and Risk of Loss. Title to the Equipment remains with JCI throughout the Lease Term, and Customer shall acquire no right, title, or interest in the Equipment. Customer shall not pledge or encumber the Equipment in any way. Customer shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Equipment from any cause whatsoever ("Loss") until the Equipment has been returned to JCI to the destination specified in Section 5.1. Customer shall notify JCI in writing within 10 days of any such Loss.
  2. Return of Equipment.
    5.1 Obligation to Return Equipment. Customer shall, at its risk and expense, promptly upon expiration of the Lease Term, properly pack and return the Equipment, freight prepaid, to JCI's facility set out on the first page of this Agreement by delivering the Equipment on board such carrier as JCI may specify.
    5.2 Condition of Equipment Upon Return. Customer shall cause the Equipment returned for any reason to (a) be free and clear of all liens (other than liens of JCI) and rights of third parties and (b) be in the same condition as when delivered to Customer, ordinary wear and tear excepted.
  3. Compliance with Law. Customer shall (a) comply with all applicable laws, regulations, and ordinances and (b) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Order.
  4. Term and Termination. The “Lease Term” commences on the Subscription Start Date and continues for the Subscription Term. If Customer is in default of any of the terms and conditions of the Order, JCI, and its agents, at Customer's risk, cost, and expense may during normal business hours enter Customer's premises where the Equipment is stored or used and recover the Equipment.
  5. Entire Agreement; Amendment; Remedies. This Lease Terms, including and together with the Order, terms incorporated therein and any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. No amendment to or modification of or rescission, termination, or discharge of these Lease Terms is effective unless it is in writing and signed by an authorized representative of each Party. All rights and remedies provided in these Lease Terms are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Customer's rights under Section 3 are Customer's exclusive remedies for the events specified therein. These Lease Terms and all matters arising out of or relating to these Lease Terms are governed by, and construed in accordance with, the laws of the State of Wisconsin, without regard to the conflict of laws provisions of such State.
  6. Limitation of Liability. IN NO EVENT SHALL JCI BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THESE LEASE TERMS,REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT JCI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.IN NO EVENT SHALL JCI'S AGGREGATE LIABILITY UNDER THESE LEASE TERMS EXCEED THREE TIMES THE TOTAL OF THE AMOUNTS OF RENT PAID TO JCI HEREUNDER OR $50,000 WHICHEVER IS LESS.
  7. Force Majeure. JCI shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of JCI.

(b) Applicable Regulatory Requirements. You are solely responsible for determining whether the actions you take with the Service comply with applicable fire and safety regulations and codes.  The XAAP Service offers a tool for you to comply with your applicable regulatory requirements; the Xaap Service does not provide legal advice as to whether any particular Service functionality will meet your particular regulatory requirements.  For information on such requirements please consult your attorney or a fire safety professional.  In addition to the Limitation of Liability set forth in the Terms of Service, You further agree and acknowledges that IN NO EVENT WILL THE JCI PARTIES BE LIABLE FOR DAMAGES OR LOSSES RELATED TO YOUR FAILURE TO COMPLY WITH LOCAL REGULATORY REQUIREMENTS, INCLUDING ANY LOST PROFITS, REVENUES, OR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND OR NATURE ARISING THEREFROM.

  1. References and Testimonials. You agrees to allow JCI to reference You as a customer of JCI on JCI’s website and in other print copy or marketing material (“JCI Marketing Materials”). You will provide JCI with an approved company logo that JCI may publish on JCI Marketing Materials for such purpose. Additionally, if You provide feedback or testimonials on the Products to JCI, You grant JCI the right and license to use the submission of such feedback or testimonials in JCI Marketing Materials. Such rights and licenses shall extend to JCI and its affiliates.