TERMS OF USE ARCHIVE
This TERMS OF USE (the “Agreement”) is between Spot AI, Inc., a Delaware corporation headquartered in California (“Spot AI”) and you as a customer (“Customer”) and/or User (as defined below) (collectively “Subscribers”).
This Agreement is effective on the earlier of a date on an executed Order Form, or the date Subscriber uses the Services (“Effective Date”).
By executing an Order Form, clicking a box referencing this Agreement, or accessing or using the Services, Subscriber acknowledges and agrees that Subscriber has read, understood, and agrees to the terms of this Agreement. This Agreement applies to Customer and all Users who access the Spot AI Services under Customer’s account.
1. DEFINITIONS, as used herein:
1.1 “Agreement” means this agreement, together with any Order Form or Schedules referenced, and any Spot AI click-through agreement accepted by Subscriber to use a particular tool in the Dashboard, collectively referred to as the “Agreement”.
1.2 "Confidential Information" means, (a) with respect to Customer, the Customer Content, (b) with respect to Spot AI, the Services including without limitation all information relating to the Services (including all Customer feedback) and trade secrets and (c) with respect to both parties, any and all non-public technical, developmental, marketing, sales, operating, performance, cost, know-how, business plans, business methods, and process information, techniques, or ideas disclosed to the other party. For convenience, a disclosing party may, but is not required to, mark written Confidential Information with the legend "Confidential" or an equivalent designation.
1.3 "Customer Content” means electronic data and information provided, transferred or uploaded by or on behalf of Customer and its Users to the Dashboard, Hardware and Mobile App and processed by Spot AI on Customer’s behalf.
1.4 “Dashboard” means Spot AI’s proprietary AI powered tool and interface that allows users to log in and access camera footage, interact with the cameras, and access a number of feature sets.
1.5 "Documentation" means Spot AI's then-current technical and/or functional documentation provided to Customer.
1.6 “Hardware” means the IVR and cameras provided to Customer by Spot AI.
1.7 “Intellectual Property Rights” means all Spot AI patents, design rights, copyrights, trade secret or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights.
1.8 “IVR” means the intelligent video recorder provided to Customer by Spot AI.
1.9 “Mobile App” means a mobile application for use on iOS and Android devices that allows a User to access the Dashboard.
1.10 “Services” means any Hardware, Software, Documentation, Dashboard, Mobile App, programs, tools, systems, data, or other services or materials provided to Customer.
1.11 “Support” means Spot AI’s then-current support offering specified in the attached Schedule 1, which Spot AI may update from time to time at its sole discretion.
1.12 "Software" means any and all downloaded software for the Mobile App or software installed in the IVR , including any updates or new releases.
1.13 “Order Form(s)” means any order form for the Services and related Support ordered by Customer, including by extension, increases in the quantity of connected cameras or other devices which may be agreed to between the parties.
1.14 “Users” means Customer’s employees or agents approved by Customer to use the Services in accordance with this Agreement.
2. SUBSCRIPTION RIGHTS AND LICENSE; RESTRICTIONS
2.1 Subscription Rights. Subject to Customer’s compliance with this Agreement and during the Subscription Term (as defined below), Spot AI grants to Customer a non-exclusive, non-transferable, and limited right to access and use the Dashboard within the United States solely for internal business use and testing purposes.
2.2 License Rights. Subject to Customer’s compliance with this Agreement and during the Subscription Term, Spot AI grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to (1) download and use the Mobile App, subject to the terms of a separate end user license agreement between Spot AI and Subscriber for each Mobile App as well as any developer distribution agreements necessary to place the Mobile App in an online store; and (2) use the IVR. The license rights conferred in this Section 2.2 are limited to use within the United States solely for internal business use and testing purposes.
2.3 Hardware Restrictions. Customer agrees Hardware shall be located solely at Customer’s facilities or Customer-managed facilities and be maintained in Customer’s direct possession. Customer will impose the restrictions contained in this Agreement on any User who may use the Hardware on its behalf, and a breach of the Agreement terms by any such party shall be considered a breach by Customer. Customer shall not, under any circumstances, lease, loan, resell, or otherwise distribute the Hardware to third parties.
2.4 License for Use of Customer Content. Customer grants to Spot AI a limited, non-exclusive license to host, use, process, display, transform, and transmit Customer Content to provide the Services, and represents and warrants that it has all necessary rights and consents from Users and video subjects to confer such rights to Spot AI with respect to any Customer Content to which Customer has any ownership interest. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required by Spot AI to provide the Services.
2.5 Prohibited Uses. Customer may not, and may not cause or permit others to: (i) copy or republish the Services including any Updates, (ii) make the Services available to any person other than Users within the scope of use as defined in this Agreement, (iii) use or access the Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the Services that are operable or which can be used without a subscription to the Services, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Services, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software or the Dashboard, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the Services or use the Documentation in order to build a similar or competitive product or service, (viii) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing, or obscene; violate privacy rights; promote bigotry, racism, hatred, or harm; send unsolicited bulk e-mail, junk mail, spam, or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances, or regulations; (ix) perform or disclose any benchmarking, availability, or performance testing of the Services; or (x) perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, or penetration testing of the Services (collectively, the “Prohibited Use”). Any Prohibited Use by Customer or any User under this Section is considered a material breach of this Agreement and may result in immediate suspension or termination by Spot AI under Sections 4.2 and 4.4, respectively, at Spot AI’s sole discretion. All rights in and to the Services not expressly granted to Customer or any User hereunder are reserved by Spot AI.
3. PRICE, PAYMENT, AND DELIVERY
3.1 Fees. Customer agrees to pay to Spot AI the fees for Services as specified in the Order Forms (“Fees”). Shipments for the IVR and any cameras are FOB Origin. If Customer payment is more than twenty (20) days overdue, Spot AI reserves the right to disable Customer's use of the Services, provided it has given at least 10 days' notice of such intent.
3.2 Verification. Spot AI shall be permitted to remotely verify Customer’s usage of the Services as it deems reasonably necessary, including but not limited to verifying the number of connected cameras or other devices. If Spot AI discovers under-reported or underpaid fees related to usage of camera feeds or video recorders, Spot AI shall invoice and Customer shall pay such underpaid fees based on the Customer’s Order Form pricing or Spot AI’s then-current price list and terms and conditions in effect at the time.
3.3 Taxes. Fees do not include sales, VAT, withholding, use, property or similar taxes. Customer is responsible for the payment of such taxes, however designated or incurred. Spot AI may pay, withhold and remit any such taxes to the appropriate tax authority on behalf of Customer, and Customer shall reimburse Spot AI for any such taxes paid, payable or otherwise incurred. Notwithstanding the foregoing, if Customer provides Spot AI with a valid certificate from an applicable federal, state or local tax authority establishing that Customer is exempt from a specific tax in which such tax authority has jurisdiction over at least ten (10) days prior to the due date upon which such tax must be paid, Spot AI will refrain from paying, withholding or otherwise remitting such tax on behalf of Customer. Customer shall indemnify Spot AI with respect to any such taxes, interest, penalties or losses, including reasonable accounting and legal fees, incurred in the event any such tax authority later invalidates or revokes such certificate or otherwise seeks collection of such tax from Spot AI. Customer agrees and understands that the taxation of any transaction and the calculation of taxes may be affected by the delivery method and delivery location of the Software and Hardware.
4. TERM, SUSPENSION and TERMINATION
4.1 Term. This Agreement becomes effective on the Effective Date and shall continue until the license end date of the last active Order Form, unless terminated earlier as provided hereunder (“Subscription Term”). Order Forms will renew automatically for additional successive one (1) year terms, unless (i) signed Order Form specifies different renewal terms, (ii) Agreement is terminated earlier in accordance with Section 4.2, or (iii) notice of non-renewal is given by one party to the other party at least thirty (30) days prior to the expiration of the then-current Subscription Term.
4.2 Suspension. Spot AI reserves the right to suspend the Services if Spot AI reasonably concludes, with sufficient tangible evidence that Customer or a User’s use (i) is, or has a high likelihood of, causing immediate or ongoing harm to Spot AI, its customers, or any third party; (ii) poses a threat of interference with, or obstruction to, the operation of the Services that would likely have an adverse effect on the delivery of the Services to other customers of Spot AI or on the systems or content of any other customer of Spot AI, (iii) is a Prohibited Use, or (iv) will likely cause, or has already caused, Spot AI to be in violation of applicable law (“Suspension Acts”). In the extraordinary event that Spot AI must suspend the Services, Spot AI shall immediately, but no later than twenty-four (24) hours, notify Customer of the anticipated suspension and provide Customer with seventy-two (72) hours prior written notification of the suspension of Services for the Parties to diligently attempt to resolve the issue except in the case(s) where suspension of Services are needed to prevent irreparable damage to other Spot AI customers. Spot AI shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Services in accordance with this Section. Nothing in this Section will limit Spot AI’s rights under any other section of this Agreement.
4.3 Effect of Suspension. If Spot AI suspends or disables Customer’s right to access or use any portion or all of the Services pursuant to Section 4.2, Customer will remain responsible for any applicable Fees and charges for any Services to which Customer or their Users continue to have access. If Customer is unable or unwilling to remedy any Suspension Acts during the suspension, such Suspension Acts shall be considered a material breach, and Spot AI may terminate this Agreement pursuant to Section 4.4.
4.4 Termination. Each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Customer's breach of its obligations under Sections 5 (Intellectual Property Rights) or 9 (Confidentiality) or if Customer files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, shall result in an immediate termination.
4.5 Effects of Termination. Upon any termination hereunder, Customer shall immediately cease use of, and shall irretrievably destroy or return (at Spot AI’s request), all copies of any Services and Spot AI Confidential Information in every form. Spot AI will give Customer seven (7) days to download or otherwise save Customer Content, after which Customer will have no access to the Spot AI dashboard or interface, and Spot AI will have no access to Customer Content.
4.6 Survival. Sections 2.5, 3, 4.4, 4.5, 4.6, 5, 6.2, 7, 8, 9, 10, and 11 shall survive such termination. In the event of any termination hereunder, Customer shall not be entitled to any refund of any payments made by Customer, except to the extent the cause of termination has been finally determined to result from a breach of Section 6.1 (Performance Warranty), in which case, Customer is entitled to a pro-rata refund of any prepaid, unused Fees. Termination for any other reason shall not relieve Customer from its obligation to pay Fees that remain unpaid.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Reservation of Rights. Spot AI retains all right, title and interest in and to the Services, and all Intellectual Property Rights embodied therein, subject to any limited license rights expressly granted to Customer in Section 2 above and any ownership rights accrued by the Customer in Section 5.6 below.
5.2 Feedback. Customer hereby grants to Spot AI a royalty-free, worldwide, assignable, sublicensable, irrevocable, perpetual license to use, modify and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback about the Services provided by you hereunder.
5.3 Customer Content. Customer understands and agrees that by using the Services, Customer may be providing Customer Content such as, for example, capturing and collecting video recordings and images (including biometric data) and related information (collectively, "Customer Content"). In connection with Customer’s use of the Services, Customer may also be permitting Spot AI to access that Customer Content, including Customer Content that may contain personally identifiable information of third parties, including employees, business partners or other individuals. Customer is responsible for securing and protecting Customer Content collected by Customer while using Services.
5.4 Ownership of Customer Content; License Rights. As between Customer and Spot AI, Customer owns the Customer Content. Spot AI does not claim any ownership rights in or to the Customer Content. However, in order for the Services to operate and for Spot AI to provide Support, Spot AI may need the right to access the Customer Content. Customer hereby grants to Spot AI a worldwide, non-exclusive, non-transferable (except to an Affiliate), royalty-free license, to use, view, copy, process, store, transmit, and otherwise access Customer Content only for the purposes of (i) providing the Services and Support to Customer, (ii) improving and developing the Services and Support, and (iii) as directed by Customer. Spot AI also reserves the right to use Customer Content to the extent necessary to protect Spot AI’s rights in any dispute with Customer or as may be required by law.
5.5 Rights of Third Parties. It is Customer’s sole responsibility to provide any required notice to or opt-out as well as obtain any necessary consents from any and all persons and third parties regarding collection, processing, and storage of Customer Content (including video recordings and biometric data). Customer represents and warrants that neither Customer’s collection, use and/or transmission of the Customer Content, including video recordings and images and biometric data, if applicable, nor Customer's use of Customer Content as described herein will infringe, misappropriate or violate a third party's intellectual property rights or rights of publicity or privacy or result in the violation of applicable law. Customer represents and warrants that it has obtained all rights in the Customer Content to authorize Spot AI to use, copy, process, store, transmit, distribute, perform, transform, and display the Customer Content to provide Customer the Services and to perform all other acts authorized by Customer in connection with the Customer Content. Customer agrees to use, deploy and implement all reasonable administrative, operational and physical security systems and practices to protect and safeguard its own and third-party data (including Customer Content), computing systems, networks, physical locations and facilities and all Confidential Information.
6. PERFORMANCE WARRANTY
6.1 Warranty. Spot AI warrants that the Software will substantially conform to its Documentation during the Subscription Term, unless the Software is not used in accordance with the Documentation or is modified by Customer or a third party. Spot AI does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance, or that it meets all of Customer's business requirements. If Customer reports and Spot AI validates the existence of a Software nonconformance, Spot AI will repair or replace the nonconforming Software. This is Customer’s sole and exclusive remedy under this warranty. If Hardware is confirmed to be defective, Spot AI will repair any defects or, at its sole discretion, replace the Hardware.
6.2 Express Disclaimer. EXCEPT AS EXPRESSLY PROVIDED ABOVE IN SECTION 6.1, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SPOT AI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, SPOT AI MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICES MEETING CUSTOMER’S REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE; (II) WHETHER CUSTOMER’S USE OF THE SERVICES OR CUSTOMER DATA WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER CUSTOMER’S USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION.
7. THIRD PARTY CLAIMS
7.1 Indemnity and Defense of Customer. Spot AI shall indemnify and defend Customer against claims brought against Customer by any third party alleging that Customer's Use of the Software, in accordance with the terms and conditions of this Agreement, constitutes a direct infringement or misappropriation of such third party’s United States patent claim(s), copyright or trade secret rights, and Spot AI will pay damages finally awarded against Customer (or the amount of any settlement Spot AI enters into) with respect to such claims. This obligation of Spot AI shall not apply if the alleged infringement or misappropriation results from (i) Use of the Software in conjunction with any other software; (ii) Use of the Software with an apparatus, system or device other than the Hardware and cameras or video recorders supplied by Customer; (iii) failure to promptly use an update provided by Spot AI if such infringement or misappropriation could have been avoided by use of the update; or (iv) any use not permitted by this Agreement. This obligation of Spot AI also shall not apply if Customer fails to timely notify Spot AI in writing of any such claim; however Customer’s failure to provide or delay in providing such notice shall not relieve Spot AI of its obligations under this Section except to the extent Spot AI is prejudiced by Customer’s failure to provide or delay in providing such notice. Spot AI is permitted to control fully the defense and any settlement of any such claim as long as such settlement shall not include a financial obligation on or admission of liability by Customer. In the event Customer declines Spot AI’s proffered defense, or otherwise fails to give full control of the defense to Spot AI’s designated counsel, then Customer waives Spot AI’s obligations under this Section 7.1. Customer shall reasonably cooperate in the defense of such claim and may appear, at its own expense, through counsel reasonably acceptable to Spot AI. Spot AI may settle or mitigate damages from any claim or potential claim by substituting alternative substantially equivalent non-infringing programs and supporting documentation for the Software. Customer shall not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Software that is prejudicial to Spot AI’s rights.
7.2 THE PROVISIONS OF SECTION 7.1 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF SPOT AI AND ITS LICENSORS TO CUSTOMER, AND IS CUSTOMER'S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
7.3 Indemnity and Defense of Spot AI. Subject to the remainder of this Section, Customer shall defend any action brought against Spot AI by a third party to the extent that it is based upon a claim related to: (i) Customer’s collection of Customer Content and/or distribution thereof to Spot AI for Use in connection with the Services, (ii) any violation of any third party right or applicable laws including privacy and biometric laws in connection with a) any Customer Use of the Services or b) any breach of Customer’s obligations under this Agreement or click-through agreement; or (iii) any gross negligence or intentional misconduct by Customer or its users; and indemnify Spot AI from any resulting settlement amounts, and for any resulting costs and damages finally awarded by a court of competent jurisdiction or for any resulting statutory fines levied by a regulatory authority or governmental entity in connection with such claim(s), provided that Spot AI promptly provides Customer with notice of such claim; allows Customer sole control over the defense thereof and related settlement negotiations; and reasonably cooperates in response to Customer’s requests for assistance. Customer may not settle or compromise such a claim without Spot AI’s prior written consent.
8. LIMITATIONS OF LIABILITY
8.1 Not Responsible. Spot AI and its licensors and contractors will not be responsible under this Agreement (i) if the Services are not used in accordance with the Agreement, Documentation or click-through agreement; (ii) if the defect or liability is caused by a) Customer, b) a modification (other than a modification made by Spot AI which is provided through Spot AI Support or under warranty), or c) third-party software or hardware; (iii) if the Software is used in conjunction with any third party software for which the Customer lacks sufficient rights from the third party vendor for such use; or (iv) for any Customer activities not permitted under this Agreement, Documentation or click-through agreement.
8.2 LIMITATION OF LIABILITY. EXCEPT FOR (I) DAMAGES RESULTING FROM (A) UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION; OR (B) DEATH OR PERSONAL INJURY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (II) SPOT AI’S RIGHT TO COLLECT UNPAID FEES, UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM SHALL SPOT AI, ITS LICENSORS, ITS CONTRACTORS OR CUSTOMERS BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT IN EXCESS OF THE PAID FEES FOR THE SOFTWARE AND HARDWARE DIRECTLY CAUSING THE DAMAGES OR BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ATTORNEYS’ FEES, COURT COSTS, INTEREST OR EXEMPLARY OR PUNITIVE DAMAGES.
8.3 The provisions of this Agreement allocate the risks between Spot AI and Customer. The Fees reflect this allocation of risk and the limitations of liability herein.
9. CONFIDENTIALITY
9.1 Use of Confidential Information. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party: (a) shall take all Reasonable Steps (defined below) to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder, and who are under obligations of confidentiality substantially similar to those set forth herein. As used herein “Reasonable Steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.
9.2 Exceptions. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.
9.3 Confidential Terms; Publicity. Customer shall not disclose the pricing contained in this Agreement to any third party. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, except that Customer agrees that Spot AI may use Customer's name in customer listings or, at times mutually agreeable to the parties, as part of Spot AI's marketing efforts (including reference calls and stories, press testimonials, site visits, and case studies).
10. ASSIGNMENT
10.1 Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets.
11. GENERAL PROVISIONS
11.1 Waiver. The waiver of a breach of any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach.
11.2 Severability. If any provision of this Agreement is found to be unenforceable, the provision will be enforced to the maximum extent permissible to fulfill the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
11.3 Regulatory Matters. Each party will comply with all federal, state, and local laws and regulations applicable to it with respect to the Services, including all export control regulations and restrictions of the United States or any other country. Customer will ensure that none of the Services are directly or indirectly exported, re-exported, or used to provide services in violation of such export laws and regulations.
11.4 Governing Law; Jurisdiction; Venue. This Agreement will be deemed to have been made in, and will be construed pursuant to the laws of, the State of California and the United States without regard to the conflict of law provisions thereof. The United Nation’s Convention on Contracts for the International Sale of Goods is expressly excluded from application to this Agreement. The sole jurisdiction and venue for all disputes relating to this Agreement will be the federal courts in the Northern District of California and state courts in Santa Clara County, California.
11.5 Notices. A notice or other communication under this Agreement will be effective when received by the party to which it is addressed. Notices sent by overnight courier or certified mail should be sent to the executive office of Spot AI as found on its website at the time of notice, or to Customer’s address as found in Spot AI’s records, and are considered delivered at the time noted by the carrier. Notices sent by email should be sent in the case of Spot AI to legal@spotai.co, or to Customer’s email address as found in Spot AI’s records, and will be considered given only upon acknowledgement (other than automatic “read receipt" or similar), but may not be used for notice of a material breach, which shall occur by overnight courier or certified mail. No form of transmission of notice other than what has been expressly identified in this Section 11.5 shall be effective.
11.6 Force Majeure. Except with respect to the payment of monies owed and due, each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, earthquakes, fire, floods, acts of terrorism or war, epidemics, pandemics, communication line failures, and power failures.
11.7 Entire Agreement. This Agreement constitutes the entire agreement between Spot AI and Customer and supersedes all previous representations and discussions. This Agreement may be modified only by a writing signed by both parties.
SCHEDULE 1: SUPPORT SERVICES
Spot AI will provide technical Support to Customer, subject to Customer’s payment of all applicable fees and compliance with the Agreement. Spot AI may access the Hardware and Customer-supplied cameras or video recorders for maintenance purposes and to implement bug fixes, planned upgrades, and feature changes.
Spot AI will provide Support for errors, bugs, or other reported issues, except that Spot AI will not be responsible for addressing or resolving problems that are caused by Customer. Spot AI may access the Hardware to diagnose reported problems. Customer will be obligated to provide Spot AI with sufficient access, information, and data to enable Spot AI to reproduce a reported issue.
Support will be provided through email and telephone communication during Spot AI Support’s normal business hours, i.e., from 9:00 a.m. to 6:00 p.m. Pacific time on regular U.S business days.
Spot AI will respond to support requests within two (2) business days; resolution times will vary depending on the type and severity of the issue.
Services that are outside the scope of Spot AI’s support obligations include support for Software which has been subject to unauthorized modification by Customer or for which all required maintenance releases have not been implemented by Customer; Support requested due to a cause beyond Spot AI’s reasonable control (e.g., floods, fires, loss of electricity or other utilities); and negligence, operator error, or improper use of hardware or software by Customer or any third party.
SCHEDULE 2: EVALUATION AGREEMENT
If you are evaluating an Evaluation System (as defined below), the following terms (“Evaluation Agreement”) apply to your use of the Services:
1.Definitions. All capitalized terms not defined in this Schedule 2 shall refer to the defined terms set forth in the Agreement. The term “you” or “your” means the Customer. The term “we” or “us” means Spot AI.
2. Loan of Evaluation Systems. Spot AI offers certain hardware and software products, including all provided documentation, as “Evaluation Systems”.
3. Evaluation. You will conduct an evaluation of the Evaluation System (the “Evaluation”) beginning the date the Evaluation System is delivered (the “Start Date”) and ending four weeks later, unless extended by mutual agreement (the “Evaluation Period”). During the Evaluation Period you will provide feedback to us on the performance of the Evaluation System (the “Feedback”). We may use Feedback and performance data collected by an Evaluation System without restriction for any reasonable purpose.
4. License Grant. Spot AI hereby grants you a non-sublicensable, non-exclusive, non-transferable, limited license to use (i) the hardware and any embedded firmware, and (ii) any software provided in connection with such Evaluation System, in each case, solely for the purpose of the Evaluation during the Evaluation Period (the “Evaluation License”).
5. Pricing and Payment. Evaluation System and Evaluation License is provided at no cost.
6. Location and Access. Evaluation Systems will only be located at the sites where installed, and you will not move any Evaluation System without our prior written approval. We will have remote access to all Evaluation Systems, as well as any connected cameras, video recorders and other devices for troubleshooting, support, and maintenance.
7. Customer Data.
- Types of Data: By using the Evaluation System, you may be collecting video recordings and images captured by an Evaluation System (collectively, “Customer Data”) and making that Customer Data available to us by means of our remote access described above, including Customer Data that may contain personally identifiable information of your users, employees or other individuals.
- Ownership; Use by Company: As between you and us, you own the Customer Data. However, for the Evaluation Systems to work, we need to access Customer Data. You hereby grant us a worldwide, non-exclusive, non-transferable, royalty-free license to use, view, copy, process, store, transmit, and otherwise access your Customer Data only for the purposes of (i) providing the Evaluation Systems to you, (ii) improving the Evaluation Systems, and (iii) as directed by you. We may also use Customer Data to the extent necessary to protect our rights in any dispute with you or as required by law.
- Rights of Third Parties: You represent that you have provided notice to, and obtained all necessary consents from your users, employees or others regarding collection, processing, and storage of Customer Data (including video recordings and biometric data) or that may be required under applicable law prior to using the Customer Data with the Evaluation Systems.
8. Proprietary Rights. All intellectual property rights to any Evaluation System will at all times be vested in us. You agree not to (i) alter or reverse engineer any Evaluation System, create derivative works based upon any Evaluation System, or use such Evaluation System to develop any products, (ii) remove any intellectual property or proprietary notice on any Evaluation System, (iii) cause any lien to be placed against any Evaluation System, or (iv) sell, license, rent, provide access to or otherwise make available any Evaluation System to any third party, other than to your employees or contractors whose use of such Evaluation System solely for the purpose of the Evaluation and consistent with this Evaluation Agreement. All Feedback is and will remain the property of Spot AI. You hereby assign to us all rights, title, and interest in the Feedback. Upon request by Spot AI, you will execute any document, registration or filing required to give effect to the foregoing assignment.
9. Confidential Information. “Confidential Information” means all nonpublic information disclosed (whether orally or in writing) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), including (i) any information about the Evaluation System or any Evaluation, (ii) all copies, extracts, or compilations of such information, and (iii) all Feedback. Confidential Information does not include information that (a) was previously known by the Receiving Party, (b) is or becomes publicly known through no fault of the Receiving Party, (c) was disclosed to the Receiving Party by a third party without any restrictions on its use or disclosure, provided the third party is not itself in breach of any obligations of confidence with respect to such information, or (d) is independently developed by the Receiving Party without use of or reference to the Confidential Information. Confidential Information will be held in confidence by the Receiving Party and will be used solely for the purpose of, and in accordance with, this Evaluation Agreement, for a period of three years from the date of disclosure. The Receiving Party will disclose Confidential Information only to those employees or contractors of the Receiving Party with a need to know such Confidential Information and solely for the purpose of the Evaluation. The Receiving Party will protect the Confidential Information with the same degree of care that it uses to protect its own confidential information of like character, but in no case less than a reasonable degree of care. If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party prompt written notice, if legally permissible, and will use its best efforts to assist the Disclosing Party in seeking a protective order or another appropriate remedy.
10. DISCLAIMER: ALL MATERIAL PROVIDED BY US IN CONNECTION WITH THE EVALUATION IS PROVIDED “AS-IS.” YOU ACKNOWLEDGE THAT THE EVALUATION SYSTEMS MAY BE PROTOTYPES THAT ARE NOT COMMERCIALLY AVAILABLE, HAVE NOT BEEN FULLY TESTED, AND MAY CONTAIN DEFECTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SPOT AI DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THE EVALUATION SYSTEMS, WHETHER EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, OR CONDITION OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
11. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES RELATED TO YOUR USE OF THE EVALUATION SYSTEMS. EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY AND ANYONE WHO USES THE EVALUATION SYSTEMS THROUGH YOUR ACCOUNT WILL NOT EXCEED $1,000. YOU UNDERSTAND THAT THESE LIMITATIONS ARE A FUNDAMENTAL PART OF THIS EVALUATION AGREEMENT.
12. Termination. Either party may terminate this Evaluation Agreement upon written notice to the other party. Upon expiration or termination of this Evaluation Agreement, unless the parties otherwise agree in writing, all rights granted by Spot AI to you will terminate, and you will return all Evaluation Systems within ten (10) business days of the date of expiration or termination. Sections 6-12 will survive the termination of this Evaluation Agreement.
13. No Export. Each party to this Evaluation Agreement acknowledges its obligations to control access to technical data (as defined by the U.S. Department of Commerce, Office of Export Administration) under U.S. export control laws and regulations, and agrees to adhere to all applicable U.S. export control laws and regulations regarding any technical data received under this Evaluation Agreement. Nothing in this paragraph releases you from your obligations of confidentiality as set forth under Section 9 of this Evaluation Agreement.
14. Miscellaneous. You and Spot AI are considered independent contractors. Breach of the use restrictions and Confidential Information provisions of this Evaluation Agreement may result in immediate and irreparable harm to Spot AI, for which there will be no adequate remedy at law, and Spot AI will be entitled to obtain equitable relief against such breach in addition to any other remedy which it may have. This Evaluation Agreement will be governed by the laws of the state of California, without reference to conflict of laws principles. The sole jurisdiction and venue for all disputes relating to this Evaluation Agreement will be the federal courts in the Northern District of California and the state courts in Santa Clara County, California. This Evaluation Agreement may not be amended except by a writing signed by both parties. This Evaluation Agreement may be executed in two or more counterparts, including electronic signatures, each of which is deemed to be an original, but all of which constitute the same agreement.
