Security Camera Maintenance Company, a North Carolina C-Corporation
Terms of Service
IMPORTANT - PLEASE READ CAREFULLY: These Terms of Service (the Agreement) is a legal agreement between Security Camera Maintenance Company, a North Carolina C-Corporation (Company) and the customer agreeing to these terms (Customer) and governs Customer's use of the software suite for collecting and analyzing video surveillance camera data to determine camera health and to detect surveillance camera malfunctions (The "Platform").
BY CLICKING ON THE I AGREE BUTTON OR USING THE SERVICE, YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18, (2) REPRESENTING THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND CUSTOMER, AND (3) CONSENTING TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS OR CANNOT MAKE SUCH REPRESENTATIONS, YOU MAY NOT USE THE SERVICE.
COMPANY RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO MODIFY OR REPLACE THIS AGREEMENT AT ANY TIME. IF THE ALTERATIONS CONSTITUTE A MATERIAL CHANGE TO THE AGREEMENT, COMPANY WILL NOTIFY CUSTOMER. WHAT CONSTITUTES A MATERIAL CHANGE WILL BE DETERMINED AT COMPANY'S SOLE DISCRETION, IN GOOD FAITH AND USING COMMON SENSE AND REASONABLE JUDGMENT. CUSTOMER SHALL BE RESPONSIBLE FOR REVIEWING AND BECOMING FAMILIAR WITH ANY SUCH MODIFICATIONS. USE OF THE SERVICE BY CUSTOMER FOLLOWING SUCH NOTIFICATION CONSTITUTES CUSTOMER'S ACCEPTANCE OF THESE TERMS AS MODIFIED. IF ANY MODIFICATION IS NOT ACCEPTABLE TO CUSTOMER, CUSTOMER'S SOLE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE SERVICE.
NOW WHEREFORE, in consideration of the mutual benefits and obligations set forth below, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- Access to the Software. Subject to the terms of this Agreement, and as long as Subscriber pays all of the fees to Licensor as described hereunder, Licensor grants Subscriber a limited, non-exclusive, right and license, to use the Platform and the software modules set forth in Section 1.1 (the "Software") each for its intended purpose and no other purpose. Section 1.1 may be amended or modified by the mutual agreement of the parties in order to add or remove specific software modules. Upon the mutual agreement of the parties to such an amendment, this Agreement will be considered amended so that "Software" refers to the additional or modified software modules.
- Software means collectively, the software and any know-how, processes, methodologies, specifications, designs, inventions, functionality ,graphics, techniques, methods, applications, user manuals, online documentation, products or other technology and materials of any kind used by Company or its licensors in connection with performance of the Platform or made available by Company to Customer.
- Use of Platform. Prior to any use of the Platform by Subscriber, a Subscriber employee or authorized contractor (each a "Subscriber User"), each Subscriber User will be required to register with the Platform. During registration, each Subscriber User will need to provide certain basic information, such as name, e-mail address, and identifying information for each individual surveillance camera connected to the Platform (such as, but not limited to IP address, username, and password) as provided by Subscriber through the Platform and updated each time a request for addition or change of service is request to Licensor.
- Data Analytics. Subscriber shall identify its organization as well as surveillance camera and network infrastructure properties (collectively the "Subscriber Properties") to Licensor and Licensor shall provide Subscriber with instructions sufficient to enable the Platform to begin to track and analyze camera data associated with the Subscriber Properties and to determine camera health or malfunction. Licensor and Subscriber agree that the camera information and data analytics performed by the Platform in relation to the Subscriber Properties (the "Site Data") shall belong to Subscriber, but Subscriber grants to Licensor a license to use the Site Data during the Term of the Agreement in connection with the Platform and the Software. Moreover, Subscriber grants to Licensor a perpetual, non-terminable license and right to use the Site Data in an aggregated or de-identified form that does not individually identify any Subscriber users or otherwise violate the privacy rights of Subscriber’s users.
- No Other Access or Use. Except as expressly provided above, no other right to access to or use the Software or Platform is granted under this Agreement, and Subscriber shall not attempt to access or use the Software or Platform other than for the intended purpose of the Software and Platform. Subscriber shall not reverse engineer, disassemble, decompile, or design around the Software or Platform. Subscriber shall not at any time do or omit, or suffer to be done or omitted, any act or thing, which may impair Licensor’s rights in and to the Software or the Platform. Licensor expressly reserves and retains all other rights in and to the Software and Platform not expressly granted herein, beside of distributing the Software and Platform to third parties. Any distribution to third parties requires third party agreement of materially similar agreement to the current Agreement between third party and Licensor. Subscriber shall not acquire and shall not claim any title to the Software or the Platform, and the license granted herein is not intended to be and shall not be construed as an assignment, in part or in whole, of the Software or the Platform.
- Ownership. Subscriber recognizes and agrees that the Platform, the Software, and all materials or code furnished or made available to Subscriber by Licensor hereunder, excluding the Site Data, are, as between Subscriber and Licensor, the exclusive property of Licensor and any copyright, trademark, patent, trade secret or other intellectual property or proprietary right belongs to Licensor. Subscriber does not acquire any right, title or interest in or to the Platform, the Software or other materials furnished or made available hereunder except the limited and temporary right to access and use them as provided by this Agreement.
Confidentiality. Each party agrees to maintain the confidentiality of all of the other party’s non-public materials, information, business, technical or financial data and other related, proprietary and/or confidential documents or information provided by the other party ("Confidential Information"). Each party agrees to (i) protect the Confidential Information of the other party with no less than the same degree of care it would exercise to protect its own Confidential Information (but in no event less than reasonable care), (ii) not use the other party’s Confidential Information for any purpose other than as reasonably necessary to fulfill the terms of this Agreement, (iii) not disclose any part of the other party’s Confidential Information to any third person without the written prior consent of the other party, and (iv) insure that its employees, subcontractors and other personnel agree to assume the obligations set forth in this Section 2 (provided that, for avoidance of doubt, each party hereby agrees that it shall be responsible for any violation of the terms of this Agreement by its employees, subcontractors and other personnel). Confidential Information does not include any information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through an unauthorized release by a party; (ii) prior to disclosure pursuant to this Agreement, already known to the non-disclosing party without a duty of confidentiality; or (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others. Should either party become legally compelled to disclose any portion of the Confidential Information of the other party in connection with a lawsuit or similar proceeding, such party shall (if and to the extent permitted by applicable law) (A) give the other party prompt notice of that fact, including in its notice the legal basis for the required disclosure and the nature of the Confidential Information that must be disclosed, (B) cooperate fully with the other party in obtaining a protective order or other appropriate protection relating to the disclosure and subsequent use of such Confidential Information, and (C) disclose only that portion of such Confidential Information that is legally required to be disclosed. Upon expiration or termination of this Agreement, each party agrees to return to the other party or delete from its computers any Confidential Information of the other party it may have in its possession. Additionally, each party acknowledges and agrees that, in the event of a breach or threatened breach of this Section 2, the other party may have no adequate remedy in damages and, accordingly, may be entitled to injunctive relief against the other party’s breach or threatened breach without having to post bond.
- Fees. The specific Software offerings Licensor will provide Subscriber pursuant to this Agreement and the applicable fees for access to and use of the Software are set forth in Section 1.1.
- Payment. Subscriber shall pay Company the mutually agreed fees and charges for the Service. Subscriber agrees to provide accurate and current payment information during the Term of the Agreement. Company shall invoice the Customer for such fees and charges, which shall be payable within thirty (30) days of the receipt thereof by Customer. Customer acknowledges that (i) fees are based on services purchased and delivered, and (ii) payment obligations are non-cancelable and not subject to set-off or deduction and fees paid are non-refundable. Customer's obligations under this Agreement are absolute, non-cancelable and shall continue without abatement. Subscriber shall be liable for any overdraft fees, bank charges or fines resulting from insufficient funds or exceeding authorized payment levels of the payment method authorized by Subscriber. All payment obligations will survive termination or expiration of this Agreement.
- Term and Termination.
- Term. This Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months (the "Term") unless terminated earlier as set forth herein.
- Termination. Either party may terminate this Agreement in the event the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after written notice from the non-breaching party setting forth the nature of the material breach.
- Effect of Termination. Upon termination of this Agreement for any reason, Subscriber shall immediately discontinue all use of the Software and the Platform and remove any code from the Subscriber Properties transferring information to the Platform. Thereafter, Subscriber shall have no further right, license or privilege to access, or use the Software or the Platform. No fees will be refunded to Subscriber due to an early termination shall survive Termination of the Agreement.
- Warranties; Limit of Liability.
- Limited Warranties. Licensor and Subscriber each represent, warrant and covenant to the other that: (i) it is in good standing in the state of its organization and qualified to do business in every jurisdiction in which it is required to be qualified; (ii) it has full power and authority to enter into this Agreement; (iii) the execution and performance by it of its obligations under this Agreement will not constitute a breach of any other agreement or a violation of any ordinance, statute, law, or regulation to which it is a party or by which it is bound;
- Availability. Licensor will make commercially reasonable efforts to ensure that the Software and Platform are operational. From time to time, however, and as may be necessary to maintain the proper operation of the Software and Platform, Licensor may disable the Software and/or Platform for repairs, upgrades or routine maintenance ("Downtime"). Licensor will use commercially reasonable efforts to minimize the impact of any downtime on Subscriber; however, Licensor shall have no liability for any losses, damages, costs, or expenses arising out of any incident which occurs during Downtime. For the avoidance of doubt, interference with the operation of the Software by third-party software will not constitute Downtime in violation of this section and Subscriber acknowledges and agrees that such interference is not a breach of this Agreement. Licensor will use reasonable efforts to mitigate the effects of any such interference and return the Software to normal operation.
- No Reliance Upon the Software. Subscriber shall in no way rely upon the Software or the services provided by Licensor for the safety or security of Subscriber’s business, business premises, employees, contractors, or invitees. Subscriber represents and warrants that it has and will continue to have its own safety and security rules, procedures, and personnel, and retains full responsibility for monitoring and addressing any unsafe, insecure, or hazardous circumstances or situations related to Subscriber’s business.
- WARRANTY DISCLAIMER. THE SOFTWARE AND PLATFORM IS OFFERED TO SUBSCRIBER “AS IS” AND WITHOUT ANY WARRANTY, GUARANTY, CONDITION, COVENANT OR REPRESENTATION, EXPRESS, IMPLIED OR STATUTORY. ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS, CURRENCY, ACCURACY OR OTHER ATTRIBUTES, OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE SPECIFICALLY DISCLAIMED. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND PLATFORM WILL MEET CUSTOMER'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. Without limiting the generality of the foregoing, Subscriber specifically acknowledges and agrees that the Software may be prevented from operating from time-to-time by third-parties, and that this third-party interference may reduce or eliminate the effectiveness of the Software. Further, use of the Software by Subscriber may result in third-parties taking adverse actions with regard to Subscriber. While Licensor will use its best efforts to prevent such third-party interference or adverse actions and attempt to mitigate the same if they occur, Licensor will not be liable for lost revenues, interference with the use or operation of Subscriber Properties, or other damages resulting from third-party interference or adverse actions taken as a result of the use or operation of the Software.
- NO LIABILITY. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS OR PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE ACTUAL FEES PAID (OR OTHERWISE DUE AND PAYABLE) BY SUBSCRIBER TO LICENSOR FOR THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY; WITHOUT LIMITING THE FOREGOING, LICENSOR SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT TO SUBSCRIBER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, INCLUDING DOWNTIME, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SUBSCRIBER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
- Indemnification by Licensor. Licensor shall indemnify, defend and hold harmless Subscriber from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim, demand, charge, action, cause of action or other proceeding asserted by any third party against Subscriber alleging that any claim that the Software (or Subscriber’s use thereof) infringes such third party’s U.S. patent, copyright, trademark, trade secret or other intellectual property right (each, an "Infringement Claim"). Without limiting the foregoing, if Licensor receives notice of an Infringement Claim, Licensor shall have the right, at its option and sole expense, to obtain for Subscriber (and its Subscriber Users) the right to continue to use the Software or modify or replace the Software with an alternative, non-infringing solution that performs all of the same material functionality. This Section 6.1 does not apply to the extent that the alleged infringement arises from:
- Open Source Components or other Third-Party Materials;
- combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by Licensor or specified for Subscriber’s use in this Agreement;
- modification of the Software other than: (i) by Licensor or its contractor in connection with this Agreement; or (ii) with Licensor's express written authorization and in strict accordance with Licensor's written directions and specifications;
- use of any version of the Software other than the most current version or failure to timely implement any modification, update, or replacement of the Software made available to Subscriber by Licensor;
- use of the Software after Licensor's notice to Subscriber of such activity's alleged or actual infringement, misappropriation, or other violation of a third party's rights;
- negligence, abuse, misapplication, or misuse of the Software by or on behalf of Subscriber, Subscriber’s Representatives, or a third party;
- use of the Software by or on behalf of Subscriber that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Licensor's instructions;
- events or circumstances outside of Licensor's commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or
- Third-Party Claims or Losses for which Subscriber is obligated to indemnify Licensor pursuant to Section 6.2
- Indemnification by Subscriber. Subscriber shall indemnify, defend and hold harmless Licensor from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim, demand, charge, action, cause of action or other proceeding asserted by any third party against Licensor resulting from Subscriber’s use of the Software, including but not limited to (i) the Subscriber’s assumption or belief that the Software is free from defect or that the Software will detect all malfunctioning cameras or that there will not be a reasonable delay between a camera malfunctioning and the Software’s detection of such malfunction, or (ii) the conduct of Subscriber’s business while using the Platform of the Software, including, without limitation, personal injury actions, wrongful death action, property damage, breach of contract, employee or workplace disputes. The rights and obligations of Section 6.2 shall survive the termination of this Agreement; provided that, the rights and obligations under Section 6.2(i) shall also apply to any claims the facts of which arise (a) after the termination of the other rights and obligations under Section 6.2 (b) while the Subscriber continues to use the Software.
- Marketing and Publicity. Subscriber grants Licensor and Licensor grants Subscriber, the right to use either party’s name, mark and logo on the other party’s website, in that party’s marketing materials; provided, however, that in the event either party objects to any such use, the other party agrees to modify or remove such use as reasonably requested. Without requiring prior Subscriber approval, Subscriber agrees that Licensor may state the fact that Subscriber is a Licensor customer without revealing any Confidential Information or specifics about the Agreement or the relationship. Without requiring prior Licensor approval, Licensor agrees that Subscriber may state the fact that Licensor is providing service to Subscriber without revealing any Confidential Information or specifics about the Agreement or the relationship.
- Miscellaneous. This Agreement represents the complete agreement between the parties with respect to the subject matter hereof, and may only be amended by a writing executed by both parties. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Facsimile signatures and signatures transmitted by email after having been scanned shall be accepted as originals for the purposes of this Agreement. The waiver by either party of a breach of or a default under any provision of this Agreement shall not be construed as a waiver of any subsequent breach of the same or any other provision of the Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
- Governing Law. This Agreement shall be interpreted, construed and governed according to the laws of the State of North Carolina, U.S.A., without reference to conflicts of law principles thereof.
- Relationship of Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party, nor its agents have any authority of any kind to bind the other party in any respect whatsoever. The parties will be deemed to be independent contractors with respect to each other and accordingly each party is responsible for its own taxes and withholding obligations.
- Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions hereof shall not be affected thereby, and the parties shall agree to adopt a valid, legal and enforceable provision as similar as possible to the original provision at issue.
- Force Majeure. Neither party shall be liable for any failure or delay in performance of its obligations due to causes beyond the reasonable control of the party, including but not limited to, war, sabotages, insurrection, riot or other acts of civil disobedience, act of government affecting the terms hereof, acts of terrorism, accident, failure of telecommunications or internet service, power outages, severe weather, fire, explosion, hurricane or other acts of God.
- Assignment; Parties in Interest. This Agreement may not be assigned (by operation of law or otherwise) or transferred, in whole or in part, by either party without the prior written consent of the other party; provided, however, that either Party shall be entitled to assign this Agreement, without the prior written consent of the other Party, to an affiliate of such Party or to any successor corporation or other legal entity which succeeds as a going concern to the business presently conducted by such Party pursuant to a merger, consolidation or sale of all or substantially all of its assets, if such successor corporation assumes in writing such party’s obligations hereunder. Except as specifically provided herein, this Agreement is not intended to and does not create any rights in favor of any person or legal entity not a party hereto.