Surfsight End User License Agreement
Surfsight End User License Agreement Version: July 1, 2020 In a nutshell:
Now in more details: By clicking the “Accept” or “Login” button and/or by using the Solution (as defined below) you expressly acknowledge and agree that you, on behalf of yourself and your organization (the “Customer” or “you”), are entering into a legal agreement with Lytx, Inc. (the “Company”, “we”, “us” or “our”) (each, a “Party” and collectively, the “Parties”), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this SaaS End User License Agreement (“Agreement”).You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement, please do not use the Solution.
Subject to the terms and conditions of this Agreement, the Company hereby grants the Customer a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to remotely access the Company’s proprietary management software, which is provided via cloud service, on a Software as a Service (SaaS) basis, including any and all improvements, corrections, updates, new releases and new versions and any related documentation, and excluding the physical Devices as defined below (the “Solution”) that the Customer has purchased from the Company or its authorized reseller (“Reseller”), and use it for its internal business purposes, together with Company’s proprietary software embedded on an edge dash camera device (“Device”) provided to Customer by the Company or its Reseller, which communicates between the Device and the Solution. You may only use the Solution in accordance with its documentation, subject to the use limitations indicated in the agreement entered between you and the Company and/or you and the Reseller, including any purchase order (“Reseller Order”) and applicable laws. The Reseller Order is, for the avoidance of doubt, in addition to, and without derogating from, any other use restrictions set forth herein.
Physical Devices.The Solution makes use of the Device(s) and processes data on the Device, in accordance with the settings selected by the paying Customer of the Solution or as otherwise authorized by you hereunder. Following your payment and delivery, the physical Device is your property (excluding the software and other intellectual property in the Device). The Device is subject to the license terms and usage documentation applicable to it, if any. You shall use the Device in a careful and proper manner in accordance with the documentation, and in compliance with all applicable laws, ordinances or regulations, including applicable privacy, labor, road safety, and transportation laws. You are solely responsible for the safekeeping of the Device and any data stored and processed on the Device – and especially videos stored on the Device’s memory card and any data processed exclusively on the Device – including their protection against accidental or unlawful destruction, loss, stealth, alteration, unauthorized disclosure of, or access to data on the Device.
Payment. The Solution is conditioned on Customer’s payment of the applicable fees. If the fees are not paid, the Company can suspend or terminate Customer’s access to the Solution, and/or take any other legal action.
Prohibited Uses. Except as specifically permitted herein, without the prior written consent of the Company, the Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Solution (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require the Company to disclose the source code of the Solution to any third party; (iv) disclose the results of any testing or benchmarking of the Solution to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Solution’s source code or underlying algorithms; (vi) use the Solution in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (vii) remove or alter any trademarks or other proprietary notices related to the Solution; (viii) circumvent, disable or otherwise interfere with security-related features of the Solution or features that enforce use limitations; (ix) export, make available or use the Solution in any manner prohibited by applicable laws, including without limitation export control and sanctions laws which prohibit the use of the Solution in sanctioned countries (currently, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine and Venezuela); and/or (x) transmit any malicious code (e.g., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable or shut down a computer system or any component of such computer system) or other unlawful material in connection with our Solution. Company may immediately terminate this Agreement, and Customer’s access to the Solution, in the event that Customer breaches the provisions of this Section 5.
Service Provider Relationship
Company provides the Solution empty of any personal data. The Customer, or the Customer’s organization, determines the purposes for which the Solution is used, and the means to collect data from Customer’s Devices through the settings of each Device in the Account. Customer agrees to comply with all applicable legislation relating to privacy and the protection of personal data in any relevant jurisdiction worldwide, including (without limitation): the California Consumer Privacy Act of 2018 (“CCPA”); the General Data Protection Regulation (“GDPR”); any local or federal privacy law or regulation, and any law, regulation, or guideline applicable to the use of videos, cameras, or video surveillance; and any implementing or successor legislation to the foregoing; as well as any amendments and/or re-enactments of the foregoing. Further, Customer acknowledges and agrees that Company is providing services as a data processor (as defined by GDPR, and alternatively a “service provider” as defined by CCPA), and Customer is the data controller (as defined by GDPR, and alternative the “business” as defined by CCPA). For the purposes of this Agreement, “Controller” shall refer to “data controller” defined by GDPR and “business” as defined by CCPA, as applicable.
WHEREVER AN EXPLICIT CONSENT OF A PERSON IS REQUIRED FOR THE CUSTOMER’S USE OF THE SOLUTION ACCORDING TO ANY APPLICABLE LAW, IT IS THE CUSTOMER’S RESPONSIBILITY TO ATTAIN SUCH CONSENT FROM THE PERSON, IN THE FORM AND TO THE EXTENT REQUIRED. In the event that any Person withdraws consent to processing of their personal data, and the Person’s consent is required to process its personal data, then the Customer shall immediately withdraw such Person’s access to any vehicle where a Device is installed, restrict such Person’s access to the Solution, and inform the Company without delay if its assistance is needed in restricting the processing of the Person’s personal data.
IF YOU ARE AN EMPLOYER AND MAKE USE OF THE DEVICES AND SOLUTION WITH RESPECT TO YOUR EMPLOYEES OR CONTRACTORS, YOU REPRESENT THAT YOU HAVE VERIFIED, AND COMPLY WITH, ALL YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO SUCH USE ACCORDING TO ANY APPLICABLE LOCAL OR FEDERAL LAW AND GUIDELINE, INCLUDING LABOR LAWS, PRIVACY LAWS, AND VIDEO-RELATED REGULATIONS.
THE CUSTOMER SHALL ALSO TAKE CARE OF THE EXERCISE AND EXECUTION OF ANY PERSON’S RIGHT OR REQUEST WITH RESPECT TO HIS OR HER PRIVACY AND PERSONAL DATA, to the extent applicable, including but not limited to: the Right of Access to his/her personal data processed on the Solution or the Customer; the Right to Rectification of inaccurate or incomplete personal data; the Right to Erasure of his/her personal data (Right to be Forgotten); the Right to Restriction of Processing for a certain period or under certain conditions; the Right to Data Portability of your personal data to another Data Controller in a structured format; the Right to Object the processing of his/her personal data, and specifically, for direct marketing purposes; the Right Not To Be Subject to a Decision Based Solely on Automated Decision-Making. As a Customer, you commit to the Company and to any Person using the Solution that you will not be making any decision, especially with legal effect on a Person, based solely on automated decision-making with respect to data processed on the Solution, and that you will use careful, human judgment in making any such decision; the Right to File a Complaint with the applicable data protection authority.
The Company will enable the Customer to respond to personal data requests to exercise rights under the applicable law. To the extent that the Customer as the Controller does not have the ability to address a request, then upon the Customer’s request the Company shall provide reasonable assistance to the Customer to facilitate such request to the extent possible and required by applicable law. The Customer shall reimburse the Company for the costs arising from providing this assistance.
The Company processes any personal data that you as the Customer, including any Person using the Solution on your behalf, provides through the Devices and Solution, according to your instructions, as described below (under Personal Data Processing). The Company may also collect, use and retain data other than personal data, including without limitation aggregated and de-identified data, from the Device or the Solution for its own business purposes, including sale of same.
The Company and the Solution allow the paying Customer to manage and control all Customer Data on the Solution and fulfill the rights of other Persons on the Customer Account. If you got your Device from a Customer and have any request, please contact first the Customer you got the Device from. If you’re a paying Customer, and have any issue with respect to your privacy or personal data, or your capabilities as a Controller for any Person, please contact firstname.lastname@example.org.
The Parties acknowledge and agree that Customer is the Controller of personal data of any Person and the Company is the processor of that data. The purposes of the processing of personal data are determined solely by the Customer as Controller. The processing activities shall include, without limitation, the delivery of the Solution (as configured by Customer) as well as the aggregation and/or de-identification of personal data. The Company will process personal data collected from the Customer’s Devices and the Solution’s interfaces, which the Customer has provided, whether directly or through another Person on its behalf. The Company shall collect, process and use personal data only within the scope of Customer’s instructions as the Controller.
The Customer shall be solely responsible for complying with the statutory requirements relating to data protection and privacy, in particular regarding the disclosure and transfer of personal data to the Company as processor and the processing of personal data. This Agreement is Customer’s complete and final instruction to the Company in relation to personal data. Additional instructions would require prior written agreement between the Parties. Customer shall inform the Company as processor without delay about any errors or irregularities related to the processing of personal data.
The Customer takes appropriate technical and organizational measures to adequately protect personal data on the Device(s) against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data. The Company takes the appropriate technical and organizational measures to adequately protect personal data on the Solution online against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data.
The Customer will notify the Company without delay of any loss or theft of a Device, and take any necessary actions as the Controller for the data on such Device. The Company will notify the Customer without undue delay after it becomes aware of any personal data breach on the Solution. At the Customer’s request, the Company will provide the Customer as Controller with reasonable assistance necessary to enable the Controller to notify relevant personal data breaches to competent authorities, if the Customer is required to do so under the applicable law.
Sharing of videos and other personal data
The Solution enables the Customer to give access to live video streams from connected Devices, and to share links to view stored videos and/or other Device and driving data, such as speeding, violent turns, sudden stops, and other driving events (“Shared Data”). Such Shared Data may include personal data of the driver, passengers, and other people outside the vehicle.
As a Customer, you will pay careful consideration when sending Shared Data to any third party within or outside your organization (“Recipient(s)”). Consider the privacy of any Person whose personal data is part of the Shared Data, his or her rights, and your obligations as the Controller. Consider carefully your legal basis and legitimate interest in such sharing of information. Ensure the Recipients also take appropriate technical and organizational measures to adequately protect personal data, especially against unauthorized disclosure of, or access to, personal data. Please make use of the controls the Solution allows to limit the access to Shared Data, for example by time or amount of views.
As a Recipient, by accessing any Shared Data, you might be subject to certain obligations pursuant to applicable privacy laws. You’re responsible for any action you take with respect to such Shared Data. Consider carefully the privacy of any Person whose personal data is part of the Shared Data, his or her rights, and your obligations as a Recipient of such data. Limit distribution and usage of Shared Data to the minimum needed to fulfill your duties, legal basis, or legitimate interest in accessing and processing Shared Data. Any obligation of a Customer according to this Agreement, will apply, with due changes, to you as a Recipient. If you do not agree to this Agreement and its terms, do not access the Shared Data.
Children – Surfsight is a technology platform for driving safety and documentation, and is not intended for children. We do not knowingly collect or process information about children. If any videos of children, in or outside the vehicle, are captured by your Devices, you certify that you are the parent and/or legal guardian of such children, and/or have another strong legal justification for the processing, and you provide your consent for any processing of such children’s data as part of the normal operations of the Solution. Surfsight is intended to be used with significant parental involvement and approval, and with the children/Drivers’ awareness. The Company reserves the right to delete or prevent further processing of any videos containing personal data of children on its sole discretion to comply with any law or to protect children’s rights or its legal interests, and the Customer agrees to any such action by the Company.
Other processors – the Company uses additional processors around the world for various processing activities needed for the performance of the Solution, our Websites, our other products and services, our operations, and our business, and shares information with such processors on a need basis. Without derogating from the generality of the above, such processors include hosting and backup providers, analytics providers, website technology, advertising technology, telecommunication services, media transmission services, security technology, and more. The company shares information with each processor based on the business need in using such processor, to protect personal data while still effectively benefiting from the services of such processor. The Company takes appropriate safeguards in the selection of its processing vendors around the world to require that Customer Data is well protected. It may be the case that a country where your Customer Data is processed has different, or less protective, data protection and privacy regulation than in your country, and you agree to such data transfers and processing by the other processors selected by the Company.
Transfer of Personal Data of European Economic Areas and UK Data Subjects. To the extent Customer transfers personal data, as defined by the GDPR, from a member state of the European Economic Area or the United Kingdom to Company, the parties agree the terms of the Data Processing Agreement and the Standard Contractual Clauses for the Transfer of Personal Data to Processors Established in Third Countries (Controller to Processor), issued by the European Commission’s Decision 2010/87/EU, are incorporated by reference and shall be utilized to facilitate such transfer.
Data and Retention
The duration and period of processing of Customer Data by the Company will be the term of this Agreement, or such longer period as authorized hereunder.
During the term of this Agreement, the Company will (i) retain the video and event data of the Customer uploaded to the Solution for a period of 30 days from upload, after which the Company will remove this data from the Customer Account automatically unless the Customer has elected an alternative data retention period offered by the Company, and, (ii) in its own discretion, choose whether to maintain any such Customer Data on the Platform for the Company’s use provided such use does not enable the identification of a natural person. Within the aforementioned data retention period, Customers, as Controllers, can backup Customer Data from the Solution to other systems of their choosing, delete personal data from their Account, remove Devices from the Solution, or delete their entire Account altogether. Customer’s actions on the Solution may result in the deletion, de-identification or anonymization of all data related to the Device on the Solution (excluding any data stored on the physical Device and its memory card, which may require manual deletion by the Customer) or the Customer Account, respectively.
Following the termination of this Agreement, and unless instructed otherwise in advance by the Customer, all personal data stored on the Customer’s Account will be deleted or used in an anonymized way that does not enable the identification of a natural person, unless there is a legal reason or legitimate interest of the Company to retain any data. If the Company is unable to delete personal data for technical or other reasons, the Company will apply measures to ensure that identifiable personal data is not further processed.
Customer will be solely responsible for the consequences of such agreed deletion or anonymized use of personal data. Any additional cost arising in connection with the deletion or transfer of personal data to the Customer related to the termination of the Agreement shall be borne by the Customer.
All data captured through Customer’s use of Devices or otherwise provided by Customer to the Solution (e.g. data entered into our application) is “Customer Data.” As between the Company and Customer, Customer shall own its Customer Data. Customer Data does not, however, include Device technical information (such as Device identifiers, status information, and other technical information that is routinely uploaded) or insights and other information, data or content (such as locations of road signs and traffic signals) that has been calculated, processed, or derived from Customer Data, including, without limitation, through the use of algorithms, all of which are owned by the Company and may be shared and retained for its own business purposes.
Customer hereby grants Company the right to access, use and disclose Customer Data, whether stored within the Solution, or on the Device, (i) for the provision of services as specified in this Agreement, including, without limitation, monitoring, research, development, improvement and expansion of such services, and (ii) except with respect to personal data elements, for any other lawful purpose (which shall survive termination or expiration of this Agreement).
The Company may use any usage, statistical, derived, inferred, or anonymized data from Customer’s Accounts and Devices, whether active or inactive, during the term of this Agreement or following its termination. You will have no claim against the Company for any such use.
Warranties. You represent that you have the power and authorization to contract with the Company on behalf of your organization according to the terms of this Agreement. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
Intellectual Property Rights. The Solution is not for sale and is the Company’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Solution and the Company’s proprietary software embedded on the Device, and any and all improvements and derivative works thereof are and shall remain owned solely by Company or its licensors. This Agreement does not convey to Customer any interest in or to the Solution other than a limited right to use the Solution in accordance with the terms and conditions of this Agreement. Nothing herein constitutes a waiver of the Company’s intellectual property rights under any law. If Company receives any feedback (e.g., questions, comments, suggestions or the like) regarding the Solution (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and that such shall be considered Company’s Confidential Information and Customer hereby irrevocably and unconditionally transfers and assigns to Company without all intellectual property rights it has in such Feedback and waives any and all rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by the Company at its sole discretion, and that the Company in no way shall be obliged to make use of any kind of the Feedback or part thereof.
Limited Warranties.The Company represents and warrants that, under normal authorized use, the Solution shall substantially perform in conformance with its documentation. As Customer’s sole and exclusive remedy and the Company’s sole liability for breach of this warranty, the Company shall use commercially reasonable efforts to repair the Solution, in accordance with the Service Level Agreement between the Parties (if any). The warranty set forth shall not apply if the failure of the Solution results from or is otherwise attributable to: (i) repair, maintenance or modification of the Solution by persons other than the Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Solution; (iii) use of the Solution other than in accordance with the Solution’s documentation; (iv) Customer’s failure to implement software updates provided by the Company specifically to avoid such failure; or (v) the combination of the Solution with equipment or software not authorized or provided by the Company. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOLUTION IS PROVIDED ON AN “AS IS” BASIS. THE LIMITED EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY; AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, COMPANY AND ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS, AND DISTRIBUTORS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY AND ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS MAKE NO WARRANTY THAT THE SOLUTION WILL WORK IN COMBINATION WITH ANY HARDWARE OR SOFTWARE PRODUCTS PROVIDED BY THIRD PARTIES, THAT THE OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE, THAT ALL DEFECTS IN THE SOLUTION OR DEVICE CAN BE CORRECTED, OR THAT ANY SPECIFIC RESULT OR OUTCOME WILL BE ACHIEVED BY UTILIZING THE SOLUTION. FURTHER, NEITHER COMPANY, IT’S LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS NOR RESELLERS MAKE ANY WARRANTY THAT ACCESS TO THE SOLUTION OR ASSOCIATED NETWORK COVERAGE (E.G. WIRELESS NETWORK COVERAGE) WILL BE CONTINUOUS OR UNINTERRUPTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE DEVICE AND ASSOCIATED SOLUTION ARE A DRIVER AID ONLY. THEY ARE NOT A SUBSTITUTE FOR A SAFE, CONSCIENTIOUS DRIVER. THEY CANNOT COMPENSATE FOR A DRIVER THAT IS DISTRACTED, INATTENTIVE OR IMPAIRED BY FATIGUE, DRUGS OR ALCOHOL. WHETHER THE DEVICE IS IN USE OR NOT, THE DRIVER IS RESPONSIBLE TO AVOID A COLLISION. CUSTOMER’S DRIVERS SHOULD NEVER WAIT FOR THE DEVICE TO PROVIDE A WARNING BEFORE TAKING MEASURES TO AVOID AN ACCIDENT. FAILURE TO DO SO CAN RESULT IN SERIOUS PERSONAL INJURY OR DEATH OR SEVERE PROPERTY DAMAGE, AND COMPANY DISCLAIMS ANY AND ALL LIABILITY RELATING TO ANY SUCH ACTIONS. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD COMPANY AND ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES HARMLESS FROM ALL DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) RELATING TO THE ACTION OR INACTION OF CUSTOMER’S DRIVERS.
Cellular Connectivity. COMPANY’S ABILITY TO PROVIDE THE SOLUTION IS SUBJECT TO AVAILABILITY OF CELLULAR CONNECTIVITY TO THE DEVICE. CUSTOMER ACKNOWLEDGES THAT SOLUTION IS MADE AVAILABLE ONLY WITHIN THE OPERATING RANGE OF THE NETWORKS AND COMPANY’S SERVICE AREA. SERVICE MAY BE TEMPORARILY REFUSED, INTERRUPTED, OR LIMITED BECAUSE OF: (A) FACILITIES LIMITATIONS; (B) TRANSMISSION LIMITATIONS CAUSED BY ATMOSPHERIC, TERRAIN, OTHER NATURAL OR ARTIFICIAL CONDITIONS ADVERSELY AFFECTING TRANSMISSION, WEAK BATTERIES, SYSTEM OVERCAPACITY, MOVEMENT OUTSIDE A SERVICE AREA OR GAPS IN COVERAGE IN A SERVICE AREA AND OTHER CAUSES REASONABLY OUTSIDE OF CARRIER’S CONTROL SUCH AS, BUT NOT LIMITED TO, INTENTIONAL OR NEGLIGENT ACTS OF THIRD PARTIES THAT DAMAGE OR IMPAIR THE NETWORK OR DISRUPT SERVICE; OR (C) EQUIPMENT MODIFICATIONS, UPGRADES, RELOCATIONS, REPAIRS, AND OTHER SIMILAR ACTIVITIES NECESSARY FOR THE PROPER OR IMPROVED OPERATION OF THE SOLUTION. CARRIER PARTNER NETWORKS ARE MADE AVAILABLE AS-IS AND CARRIER AND COMPANY MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE AVAILABILITY OR QUALITY OF ROAMING SERVICE PROVIDED BY CARRIER PARTNERS, AND NEITHER CARRIER NOR COMPANY WILL BE LIABLE IN ANY CAPACITY FOR ANY ERRORS, OUTAGES, OR FAILURES OF CARRIER PARTNER NETWORKS. IF CELLULAR CONNECTIVITY IS INCLUDED WITH CUSTOMER’S SUBSCRIPTION TO THE SOLUTION, CUSTOMER UNDERSTANDS AND AGREES THAT IT: (a) HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS SERVICE CARRIER, (b) IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN COMPANY AND THE UNDERLYING CARRIER, (c) THAT THE UNDERLYING CARRIER HAS NO LIABILITY OF ANY KIND TO CUSTOMER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, (d) THAT DATA TRANSMISSIONS MAY BE DELAYED, DELETED OR NOT DELIVERED, (e) THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SOLUTION OR THE DEVICE.
Limitation of Liability.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SOLUTION OR THE DEVICE. UNDER NO CIRCUMSTANCES WILL THE COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SOLUTION, THE DEVICE, YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, OMISSIONS, MISTAKES, OR INACCURACIES FROM THE SOLUTION OR RESULTS THAT ARE OBTAINED FROM USE OF THE SOLUTION (E.G., DATA, INFORMATION, LOCATION, DRIVING BEHAVIOR, SPEEDING, CRASHES, ETC.); (II) PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SOLUTION; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL DATA STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOLUTION; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SOLUTION BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SOLUTION; (VII) DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY CUSTOMER, PERSON, OR THIRD PARTY; AND/OR (VIII) ANY ACTION OR INACTION OF THIRD PARTIES. IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU OR ANY PERSON FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER IN THE THREE (3) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM, OR $1,000, WHICHEVER IS GREATER. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Indemnification. You agree to defend, indemnify and hold harmless the Company, its affiliates, and its and their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) your use of, or inability to use, the Solution; (ii) your violation of this Agreement; and (iii) your violation of any third party right, including without limitation any privacy rights, employment and labor rights, copyright, or property right. Without derogating from or excusing your obligations under this Section, we reserve the right (at your expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you if you choose not to defend or settle it. You agree not to settle any matter subject to an indemnification by you without first obtaining our express approval.
Term and Termination. This Agreement is effective during the term specified under the Reseller Order, unless terminated by us or you. We reserve the right, at any time, to: (i) discontinue or modify any aspect of the Solution; and/or (ii) terminate this Agreement and your use of the Solution with or without cause, and shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the Solution in any way, your only recourse is to immediately discontinue use of the Solution. Upon termination of this Agreement, you shall cease all use of the Solution. This Section and the Sections regarding Privacy, Data and Retention, Warranties, Intellectual Property Rights, Limited Warranties, Limitation of Liability, Indemnification, and Miscellaneous shall survive termination of this Agreement.
Updates. Company may update this Agreement from time to time and such updates will be posted to this URL. Customer represents and warrants that any Permitted User with “administrator” Account permissions have the necessary authority to agree, on behalf of Customer, to any updates to this Agreement.
Force Majeure. Neither party shall be liable under this Agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of strikes, shortages, riots, fire, flood, storm, earthquake, acts of God, hostilities, pandemics, outbreak, governmental regulations or actions, or any other cause beyond its reasonable control.
Miscellaneous. This Agreement, including any documents referred herein, represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Customer but may be assigned by Company without restriction or notification. This Agreement shall be governed by and construed under the laws of the State of Delaware, United States of America, without reference to principles and laws relating to the conflict of laws. The U.N. Convention on the International Sale of Goods shall not apply. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. The Company will not be liable for any delay or failure to provide the Solution resulting from circumstances or causes beyond the reasonable control of the Company. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.
If you wish to report any privacy violation, or have another question or request with respect to this Agreement, you can contact us at: email@example.com.