This License Agreement ("Agreement") is a legal agreement between You (either an individual or a single entity) and Cashbot.ai, Inc. (DBA EyeLevel.ai),("EyeLevel.ai" or “Us”) for its EyeLevel.ai and GroundX.ai products as defined below (the "Products"). This Agreement governs your trial (if applicable), purchase and ongoing use of the Products, whether or not you have paid for use of the Products.
ThisAgreement was last updated on October 23, 2023. It is effective between You and Us as of the date of acceptance by You of the Agreement.
BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING THE PRODUCTS VIA ITS USER INTERFACE OR API USING AN AUTHORIZED ACCOUNT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT USE THE PRODUCTS.IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS"YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USETHE PRODUCTS. YOU WILL NOT BE CHARGED UNLESS YOU USE THE PRODUCTS.
YOUMAY NOT ACCESS THE PRODUCTS IF YOU ARE A DIRECT COMPETITOR, EXCEPT WITH PRIOR WRITTEN CONSENT BY US. IN ADDITION, YOUMAY NOT ACCESS THE PRODUCTS FOR PURPOSES OF MONITORING THE PRODUCTS AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE OR MARKET ANALYSIS PURPOSES.
1. "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of 50% or more of the voting interests of the subject entity.
2. “Fees” means all monies due (inUSD) to EyeLevel.ai for use by You of the Products as per this Agreement.
3. "Malicious Code"means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.
4. "Order Form" means the ordering documents and/or online order forms used to purchase the license governed by this Agreement. Typically, the Order Form is a simple one-page document but may also include addenda, that are entered into between You and Us from time to time. Order Forms shall be deemed automatically apart of this Agreement (i.e., incorporated herein by reference).
5. "Product" and/or “Products”means the EyeLevel.ai and GroundX.ai online, web-based application(s),solution(s), and platform(s) provided by Us via www.eyelevel.ai, www.groundx.ai, and/or other designated websites, that are ordered by or provided to You, including associated offline components and services, if any, and any related Products or services that You or Your Affiliates purchase from EyeLevel.ai, directly or indirectly. The Products may consist of Product documentation, sample applications, books and periodicals, tools and utilities, third-party software or services, miscellaneous technical information development toolkits, server applications and development tools (each, a"Component," and collectively "Components," of the Products);the Products may include groups of Components identified as any one or more of the following: Library, Platforms, Server Products, Applications, Programs andDeveloper Tools, all as modified from time to time. This Agreement defines the entire Products and all its Components.
6. "User Guide" means the online user guidance presented and accessible from within the Products or any site associated therewith, as updated from time to time. This may also be referred to as the EyeLevel.ai or GroundX.ai Knowledge Base.
7. "Users" means You and persons or entities who are authorized by You to use the Products, who use Your credentials or have been supplied their own user identifications and passwords by You (or by Us at Your request). Users may include but are not limited toYour employees, consultants, contractors and agents or third parties with whichYou transact business.
8. "EyeLevel.ai", "We,""Us" or "Our" means EyeLevel.ai, a DelawareCorporation located at 1127 S. Grant St., Denver, CO 80210, and its Affiliates.
9. “GroundX.ai”, or “GroundX” means a technology service for building AI applications offered by EyeLevel.ai.
10. "You"or "Your" means both You and the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
11. "YourData" means all digital information (sometimes called and including “ElectronicallyStored Information” or “ESI”) – including but not limited to electronic documents, spreadsheets, emails, digital records, transcripts, databases and related metadata – that is provided to Us or submitted/uploaded to the Products by You.
12. “Output”means an any response, report or similar reply or information presented by or within the Products in response to any Prompt.
13. “Prompt”means any question, inquiry, or other request a User submits to the Products.
II. GENERAL GRANT OF LICENSE
1. General Grant. In general, for each license you have acquired for the Products, you have unlimited, non-exclusive rights of use within Your organization.
2. Individual License. If You are an individual, We grant to you as an individual, a personal, nonexclusive license to use the Products in accordance with the terms of this Agreement, provided that you are the sole person using the Products.
3. Entity License. If You are an entity or are registering on behalf of an entity, We grant to You the right to designate individuals within your organization to have the right to use the Products in accordance with the terms of this Agreement.
4. Separation of Components. The Products are licensed as single Products.Component parts may not be separated for use for any reason or by any means.
5. Update License Terms. All Updates shall be considered part of the Products and subject to the terms and conditions of this Agreement. Additional license terms may accompany Updates. By accessing, installing, copying or otherwise using any Update, You agree to be bound by the terms accompanying each such Update. If You do not agree to the additional license terms accompanying such Update, do not access, install, copy, or otherwise use such Update.
III. PRODUCTS TRIAL
1. Trial Period. We may make the Products available to You on a trial basis at a duration of Our sole and exclusive choosing. Additional trial terms and conditions may appear on the trial registration web page or maybe provided by Us to You. Any such additional terms and conditions are incorporated into this Agreement and are legally binding. Sometimes this Products trial is referred to as a “POC” or “Proof ofConcept” which by this definition, and under this Agreement is the same asTrial Period.
2. YOUR TRIAL DATA. ANY DATA YOU ENTER INTO THE PRODUCTS AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE THE PRODUCTS AS COVERED BY THE TRIAL OR, TO THE EXTENT AVAILABLE WITHIN THE PRODUCTS'S NORMAL FUNCTION, EXPORT SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
3. NOT WITHSTANDING THE SECTION BELOW TITLED WARRANTIES AND DISCLAIMERS, DURING THE TRIAL THE SERVICES ARE PROVIDED"AS-IS" WITHOUT ANY WARRANTY.
IV. PURCHASED PRODUCTS
1. Products Provisioning. We shall make the Products available to You pursuant to this Agreement. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
V. USE OF THE SERVICES
1. Our Responsibilities. We shall: (i) provide to You basic support for the Products at no additional charge, and/or upgraded support if purchased separately; (ii) use commercially reasonable efforts to make the Products available at all times throughout the year, except for: (a) planned downtime (of which We shall give reasonable notice via the Products or by other means if appropriate, and by our sole discretion) and which shall be scheduled, to the extent practicable, at lowest usage times or,(b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, pandemics, acts of terror or malice, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays; and (iii) provide the Products only in accordance with applicable laws and government regulations.
2. Your Responsibilities. You shall (i) be responsible for Your and Your Users' compliance with thisAgreement; (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, except to the extent the acquisition of such data is due to the technical functions of the Products; (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Products for You and notify Us immediately of any such unauthorized access or use; and (iv) use the Products only in accordance with this Agreement the User Guide and applicable laws and government regulations; (v) not use the Products in a way that infringes, misappropriates or violates any person’s rights.
3. Usage Limitations. You shall not (a) make the Products available to anyone other than Users, (b)sell, resell, rent or lease the Products without Our prior written consent, (c)use the Products to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) knowingly use the Products to store or transmitMalicious Code, (e) interfere with or disrupt the integrity or performance of the Products or third-party data contained therein, (f) use the Products to illegally attempt to access, acquire or otherwise obtain Data to which You are not legally entitled or (g) attempt to gain unauthorized access to the Products or its related systems or networks.
VI. THIRD-PARTY PROVIDERS
1. Third-Party Products and Services.All or some of the Products may be designed to deliver Data to, and accept Data from, Third-Party Products and Services providers on Your behalf and as authorized by You. For example, You may request that Data be delivered to, or imported from, a third-party resource or software, not provided, hosted, or controlled by EyeLevel.ai.
2. Acquisition of Third-Party Products and Services. No purchase of third-party products or services is required to use the Products. Any acquisition by You of third-party products or services, except as may be offered by Us from time to time, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of Data betweenYou and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services.
3. Third-Party Applications and Your Data. If You enable Third-Party Applications for use with the Products or the Data managed by the Products, You acknowledge that We may allow providers of thoseThird-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Products at Your Request. We shall not be responsible for any disclosure, modification or deletion of Your Data outside of the Products resulting from any such use by Third-Party Application providers.
VII. FEES AND PAYMENT TERMS
1. Acknowledgement and Acceptance of Fees. You may be presented with a specific quote, purchase order, or other fee schedule via the EyeLevel.ai or GroundX.ai websites, from EyeLevel.ai orGroundX.ai directly, or via an authorized EyeLevel.ai or GroundX.ai partner or reseller (the “Fee Schedule” or “Fees”). The Fee Schedule will set forth the pricing for Your use of the Product(s). Your use of the Products is deemed to be Your acknowledgement and acceptance of the relevant fees, including transactional and recurring fees as per this Agreement.
2. Payment of Fees.You shall pay all Fees for your use of the Products. Except as otherwise specified in this Agreement or within the Products, (i) Fees are quoted and payable in United States dollars, (ii) Fees are based on Your requests and not on your actual usage or non-usage of the results of any such request, and (iii)payment obligations are non-cancelable and fees and monies paid are non-refundable.
3. FeeSchedule Changes.Unless otherwise specified on any applicable Purchase Order, Order Form, or other such document, We reserve the right to alter that Fee Schedule at anytime, provided that we give You no less than a 30-day notice of the FeeSchedule changes.
4. Invoicing and Payment. You shall pay all fees for your use of the Products. You will provide Us with valid and updated credit card information, or with a valid purchase order, invoicing contact information or alternative document reasonably acceptable toUs. If You provide credit card information to Us, You authorize Us to charge such credit card for all Products requests as per the Order Form or as per the FeeSchedule. Such charges shall be processed at the time You submit each request, or in accordance with any other billing frequency to which We agree in writing.If You specify that payment will be by a method other than a credit card, We will invoice You at the time You submit each request. Invoiced charges are due upon receipt. You are responsible for maintaining complete and accurate billing and contact information in the Products.
5. Automatic Renewal. Unless You notify Us no less than 30 days prior to the automatic renewal date as stated in the Order Form or Fee Schedule, your license shall automatically renew for the period stated in such Order Form or Fee Schedule.
6. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, starting 30 days after the date such payment was due until the date paid, and/or (b) We may condition future payment terms that are shorter than those specified herein or in your Order Form or Fee Schedule, or (c) We may require advanced payment for continued future use of the Products.
7. Suspension of Access to Products. If any Fees or other amounts owing by You under this, the Order Form or any other agreement between You and Us, for the Products or Our services, are 60 or more days overdue, then We may, without limiting Our other rights and remedies, suspend Your access to the Products and any related services provided to You until such amounts are paid in full.
8. Payment Disputes. During the first 30 days after a payment is due (the “Dispute Period”), You will not be considered in breach of this Agreement if You withhold the portion of such payment that is subject to a bona fide dispute; provided You: (a) giveUs written notice setting forth in detail the reason for the dispute, on or before the payment due date; (b) meet and confer in good faith with Us to resolve the dispute, starting promptly after such notice; (c) pay the undisputed portion of the payment on or before its due date; and (d) pay the disputed fees, if legitimate, promptly after resolution of the dispute. No dispute will alter Our rights to interest payments pursuant to this section regarding payments actually due. You waive any claim or dispute regarding any Fees not raised during the Dispute Period.
9. Collection Costs. You shall pay all Our reasonable collection costs, including attorney fees, incurred by Us to collect any Fees or other charges due to Us under thisAgreement following Your breach of Your payment obligations to Us.
10. Taxes. Unless otherwise stated or presented to You at the time of any Per Use or service request order, Our Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes").You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for whichYou are responsible under this paragraph, the appropriate amount shall be nvoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes based on Our income, property and employees.
VIII. PROPRIETARY RIGHTS
1. Intellectual Property.The Products are protected by copyright, patent, trade secret, and other intellectual property rights, laws, and treaties. We or Our suppliers own the title, copyright, and other intellectual property rights in the Products. The Product sare licensed, not sold.
2. Reservation of Rights.Subject to the limited rights expressly granted hereunder, We reserve all rights, title, and interest in, and to, the Products including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this Agreement.
3. Restrictions. You shall not (i) permit any third-party to access the Products except as permitted by this Agreement; (ii) create derivative works based on the Products; (iii) copy, frame or mirror any part or content of the Products, other than copying or framing on Your own intranets or otherwise for Your own internal business continuity purposes; (iv) reverse engineer the Products in any way; or, (v) access the Products n order to (a) build a competitive Products or service or (b) copy any features, functions, graphics, text or other digital or programmatic elements of the Products.
4. Limitation on Reverse Engineering, De-compilation and Disassembly. You acknowledge that the Products and the Products structure, organization and source code contain Our valuable trade secrets. Accordingly, You may not reverse engineer, decompile or disassemble the Products nor allow for any third-party under your control to do so.
5. Publicity. EyeLevel.ai andGroundX.ai may use Customer’s name and logo (“Customer Marks”) in its Customer list (including on EyeLevel.ai’s and GroundX.ai’s websites, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers. EyeLevel.ai and GroundX.ai shall use Customer Marks in accordance with Customer’s applicable branding guidelines and EyeLevel.ai and GroundX.ai may not use Customer’s name in any other way without Customer’s prior written consent (with email consent deemed sufficient).
6. ANY AND ALL TECHNOLOGY WILL NOT BE WORK MADE FOR HIRE. We shall remain the sole owner of and retain all rights, title and interest in any service, technical information and/or intellectual property rights provided to You, including without limitation all trademarks, trade names, service marks, copyrights, computer programs, general utility programs, software, methodology, databases (but not Your content contained in databases),specifications, systems designs, applications, enhancements, documentation, manuals, know-how, formulas, hardware, audio/visual equipment, tools, libraries, discoveries, inventions, techniques, writings, designs course materials, structure and content of the courses as presented to You or otherUsers, and to any methods, procedures, practices, and software or hardware solutions utilized, and any other intellectual property whether used or developed by Us or Our agents or Affiliates in connection with the Products or services provided by Us (each and all of the foregoing, the "IntellectualProperty").
7. Ownership of Your Data. You exclusively own all rights, title and interest in and to all of Your Data.That is independent of access to Your Data for there may be additionally incurred charges for Your use of the Products or Your access to Your Data as provided by this Agreement, the Order Form or related agreements or addenda. Your ownership rights to Your Data do not restrict EyeLevel.ai’s ownership of or other rights to information EyeLevel.ai independently (a) develops or (b)receives from a third party. EyeLevel.ai does not assign or license to You any other right, title, or interest in or to any prompts, usage data or other such data within the Products. Without limiting the foregoing, You will be solely responsible for providing all appropriate notices to third parties (including all employees, agents, and independent contractors) and obtaining from third parties all necessary consents and rights for Us to use Your Data submitted by or on behalf of You for the purposes set forth in this Agreement, including all consents required in accordance with all applicable privacy laws. You shall immediately notify, and address with, Us any complaints or claims of third parties regarding Your Data.
8. License to Customer Data. Customer hereby grants EyeLevel.ai, GroundX.ai and its suppliers a non-exclusive, royalty-free license to access, use, reproduce, modify and display the Customer Data for the purposes of (i)providing the Hosted Services, (ii) exercising its rights and obligations under this Agreement; (iii) generating Aggregated and Anonymous Data (as defined below); and (iv) complying with its obligations under law. All rights in and to the Customer Data not expressly granted herein are retained by Customer.
9. Rights to Outputs. We offer no representation or warranty, express or implied, related to intellectual property or other rights in Outputs, and You use Outputs at your own risk with regard to all such rights. Notwithstanding the foregoing, We hereby grant You a nonexclusive, perpetual, worldwide license to reproduce, distribute, modify, publicly perform, publicly display, and use Outputs. We grant the license in the preceding sentence under such copyrights as You may have, if any. We shall not: (a) publicize or distribute Outputs; or (b) access or use Outputs other than to maintain or improve the Products or to support Your use of the System. The preceding sentence does not restrict Our rights to information from independent sources that also appears in Outputs.
10. Usage, Suggestions, or Feedback. You represent and warrant that you have all rights necessary to submit suggestions and/or feedback to Us about Your use of the Products, and you hereby grant Us a fully paid, royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, or incorporate into theProducts and/or Our services, any and all suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the Products or Our services. This Agreement does not transfer to You any ownership of Training Data or any right to access or use Training Data.
11. Performance Data. Any analytics or similar data collected, generated or processed by Us based on Your access to and use of the Products (“Performance Data”) will be owned by Us, andWe may collect and use such Performance Data for any lawful purpose, provided We will only disclose Performance Data to third parties, including its subcontractors, for the purposes of facilitating the Products, for internal purposes, including to improve Our Products and services, to perform Our other obligations and exercise Our rights under this Agreement, or as otherwise required by law.
12. Transfer. You may permanently transfer or assign all your rights to the Products subject to the related assignment terms in this Agreement.
13. Technical and Statistical Information. You agree that We and Our Affiliates may collect and use anonymized technical and statistical information and metrics about Your use of the Products or that You may provide as a part of support services related to the Products. We agree not to use this information in a form that personally identifies You.
14. Federal Government End Use Provisions. This paragraph applies to all acquisitions of the Products by or for the United States federal government, including by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the Federal government. The Products and related documentation were developed at private expense and are “Commercial Items,” as that term is defined at 48 C.F.R.§2.101, consisting of “Commercial Computer Software” and “Commercial ComputerSoftware Documentation,” as such terms are used in 48 C.F.R. §12.212 (for civilian agencies) and 48 C.F.R. §227.7202 (for Department of Defense agencies), as applicable. Consistent with and subject to 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7702-4, as applicable, the Commercial Computer Software and Commercial Computer SoftwareDocumentation are being licensed to U.S. Government end users (a) only asCommercial Items and (b) with only such rights as are granted to all other end-users pursuant to the terms herein. Any provisions of this Agreement inconsistent with federal procurement regulations or other federal law are not enforceable against the U.S. Government. Unpublished rights are reserved under the copyright laws of the United States. You shall not remove or deface any restricted rights notice or other legal notice appearing in the Products or on any packaging or other media associated with the Products. This section does not grant You any rights not specifically set forth in this Agreement, including without limitation, any right to distribute the Products to theUnited States federal government.
15. Export Control. You acknowledge that the goods, software and technology acquired from EyeLevel.ai are subject to U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations ("ITAR") (22C.F.R. Parts 120-130 (2010)); the Export Administration Regulations("EAR") (15 C.F.R. Parts 730-774 (2010)); the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic sanctions regulations and guidelines of the U.S. Department of theTreasury, Office of Foreign Assets Control, and the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended. You are now and will remain in the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any EyeLevel.aiProducts, services, materials or technology or disclose such to any person contrary to such laws or regulations. You acknowledge that remote access to theProducts may in certain circumstances be considered a re-export of the Products, and accordingly, may not be granted in contravention of U.S. export control laws and regulations. Without limiting the generality of the foregoing, You shall not permit any third party to access or use the Products in, or export theSoftware to, a country subject to a United States embargo.
16. Use of Trademarks. You agree to use trademarks associated with EyeLevel.ai and GroundX.ai according to accepted trademark practice, including identification of the trademark owner’s name, “EyeLevel.ai,” or “GroundX.ai”. Trademarks can only be used to identify EyeLevel.ai and GroundX.ai as well as Products and services associated with EyeLevel.ai and GroundX.ai as defined in this Agreement or the Order Form or associated agreements and addenda. The use of any trademark authorized by this Agreement does not give You any rights of ownership in that trademark and all use of any trademark shall inure to the sole benefit of EyeLevel.ai. You may not change any trademark or trade name designation for any aspect of EyeLevel.ai.
1. Definition of Confidential Information. As used in this Agreement, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Products; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, Products plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to theDisclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the DisclosingParty, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by theReceiving Party.
2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) theReceiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of thisAgreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
3. Protection of Your Data.Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data,(b) disclose Your Data except as compelled by law in accordance with the"Compelled Disclosure" Section below or as expressly permitted byYou, or (c) access Your Data except to provide the Products or prevent or address service or technical problems, or at Your request in connection with customer support matters.
4. Compelled Disclosure.The Receiving Party may disclose Confidential Information of the DisclosingParty if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, theDisclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
X. WARRANTIESAND DISCLAIMERS
1. Disclaimer of Warranties. Any warranty limitation referenced in this Agreement is the only express warranty made to You and is provided in lieu of any other express warranties (if any) created by any sales, marketing or other documentation. Except for any limited warranty that may be provided in any other section of this Agreement, and to the maximum extent permitted by applicable law, We and Our suppliers andAffiliates provide the Products and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied, statutory or otherwise, including, but not limited to, any (if any) implied warranties, duties, or conditions of merchantability, or fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses and of lack of negligence, all with regard to the Products, and the provision of or failure to provide support services, to the maximum extent permitted by applicable law. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCTS.
2. Our Warranties. We warrant that (i) the Products shall perform as per the representations made in the User Guide, this Agreement, any Order Form or related Agreement and addenda, if any; and (ii) the functionality of the Products will not be materially decreased. For any breach of either such warranty, Your exclusive remedy is governed by this Agreement.
3. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not knowingly transmit to the other party any Malicious Code.
4. OUTPUTS.EXCEPT AS OTHERWISE PROVIDED HEREIN, WITH RESPECT TO OUTPUTS SPECIFICALLY, YOU AGREE TO ACCEPT ALL OUTPUTS ‘AS IS,’ WITH NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED. FURTHER, WE DO NOT REPRESENT OR WARRANT THAT OUTPUTS WILL BE FREE OF ERROR NOR OF CONTENT THAT MAY INFRINGE ON THIRD PARTY RIGHTS, INCLUDING WITHOUT LIMITATION, PRIVACY AND INTELLECTUAL PROPERTY RIGHTS.
5. Experimental or Beta Products. We may offer new experimental or “beta” products, features, or tools (“Beta Products”). All Beta Products are offered solely for experimental purposes and without any warranty of any kind and may be modified or discontinued at Our sole discretion.
XI. MUTUAL INDEMNIFICATION
1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding("Claim") made or brought against You by a third-party alleging that the use of the Products as permitted hereunder infringes or misappropriates the intellectual property rights of such third-party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c)provide to Us all reasonable assistance, at Our expense.
2. Indemnification by You.You shall defend Us against any Claim made or brought against Us by a third-party alleging that Your Data, or Your use of theProducts in violation of this Agreement, infringes or misappropriates the intellectual property rights of such third-party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney's fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) giveYou sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
3. Exclusive Remedy.The indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim shall be limited to the relevant sections of this Agreement.
XII. LIMITATION OF LIABILITY
1. LIMITATION OF LIABILITIES AND REMEDIES.IN NO EVENT SHALL EYELEVEL.AI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED O THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT FOR PURCHASED SERVICES" SECTION.
2. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND CERTAIN OTHER DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUE OR PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
3. BASIS OF THE BARGAIN. THESE LIMITATIONS OF LIABILITY WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES ACKNOWLEDGE THAT THE FEE SCHEDULE HAS BEEN SET AND THIS AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT. OUR FEES FOR THE PRODUCTS REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
4. The foregoing limitations, exclusions, and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
XIII. TERM AND TERMINATION
1. Term of Agreement.This Agreement commences on the date You accept it and continues until Your account has been terminated. If You elect to use the Products for a trial period and do not purchase the Products before the end of that period, thisAgreement will terminate at the end of the trial period.
2. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any fees for any related services not actually provided. Upon any termination for cause by Us,You shall pay any unpaid Fees and related charges, billed or unbilled, covering any use of the Products or related services actually provided prior to the effective date of termination. In no event shall any termination relieve You of the obligation to pay any Fees and related charges payable to Us for the use of the Products or services provided prior to the effective date of termination.
4. Return of Your Data. Upon request by You made within 90 days after the effective date of the termination of Your use of the Products, and provided that You have fully paid for all requested use of the Product and any related Services, We will make Your Data available to You for download.
5. DELETION OF YOUR DATA.AFTER 90 DAYS FROM THE EFFECTIVE DATE OF YOUR TERMINATION OF YOUR USE OF THE PRODUCTS, WE SHALL HAVE NO OBLIGATION TO MAINTAIN OR PROVIDE ANY OF YOUR DATA AND, UNLESS LEGALLY PROHIBITED, MAY DELETE ALL OF YOUR DATA IN OUR SYSTEMS OR OTHERWISE IN OUR POSSESSION OR UNDER OUR CONTROL.
6. Surviving Provisions. There are several provisions that shall survive this Agreement The Sections titled "Fees and Payment Terms", "Proprietary Rights","Confidentiality", "Warranties and Disclaimers","Mutual Indemnification", "Limitation of Liability","Refund or Payment upon Termination", "Return of YourData", “Deletion of Your Data” and "General Terms" shall survive any termination or expiration of this Agreement.
XIV. NOTICES, GOVERNING LAW AND JURISDICTION
1. Form and Mode of Notice.Unless otherwise provided in this section, any demand, notice or other communication("Notice") given by either party to the other shall be in writing and delivered personally, effective on the date of delivery, by overnight delivery via a nationally recognized overnight courier to be effective the day following deposit, or sent by registered or certified mail, postage prepaid, return receipt requested, to be effective three (3) days after deposit.
2. Notice to Us. All Notices to Us shall be delivered via email to email@example.com AND via certified mail or express overnight service to EyeLevel.ai, 1127 S. GrantSt., Denver, CO 80210.
3. Notice to You. Notices to You shall be addressed to the User and at the address designated by You in the Products or the Shipping Address on the Order Form, and in the case of billing-related notices, to the relevant billing contact designated by You.
4. Address Changes. We may change Our address for Notices in which case we will provide notice of such change of address by notifying You at the email address You have registered with Us. You may change your address at any time by accessing the Products using Your user login information.
5. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of Delaware, without regard to the principles of conflict of laws, the United Nations Convention onContracts for the International Sale of Goods, or other international laws.
6. Waiver of Juries and Class Actions. Each party hereby waives its right to a trial by jury for disputes arising out of or related to this Agreement, including without limitation counter claims regarding such disputes, claims related to the parties’ negotiations and inducements to enter into this agreement, and other challenges to the validity or enforceability of this agreement. The waiver in the preceding sentence applies regardless of the type of dispute, whether proceeding under claims of contract or tort (including negligence) or any other theory. Neither party shall bring or participate in any class action or other representative proceeding arising out of or related to this agreement, whether proceeding under contract or tort (including negligence) or any other theory(collectively, “This Agreement’s Claims”). This Agreements’s Claims include, without limitation, counterclaims, claims related to the parties’ negotiations and inducements to enter into this agreement, and other challenges to the validity or enforceability of this agreement. The proceedings excluded above in this section include, without limitation, class-wide arbitration and private attorney-general actions.
XV. GENERAL TERMS
1. Relationship of the Parties.The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
2. Third-PartyBeneficiaries. There are no third-party beneficiaries to this Agreement.
3. Government Action.The Parties acknowledge that the Products and any related services may be subject to certain state, federal, or local laws, statutes, acts, ordinances, rules, codes, standards and or regulations. The parties further acknowledge that in the event that the terms set forth in this Agreement are affected or required to be modified from time-to-time by state, or federal, or local laws, statutes, acts, ordinances, rules, codes, standards and or regulations that such modifications shall be incorporated as required without terminating or invalidating this Agreement.
4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under thisAgreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
6. Amendment. We may amend this Agreement from time to time by posting an amended version on our website and sending You a written notice thereof, which may be delivered via your email as You provide to Us. Such amendment will become effective 30days after such notice unless You terminate this Agreement pursuant to the terms herein. Your continued use of the Products after such 30-day notice period will confirm Your consent to such amendment.
7. Construction. The parties agree that this Agreement will not be construed in favor of or against either party by reason of authorship.
9. Cumulative Rights. The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either party, whether pursuant to thisAgreement, to any other agreement, or to law, shall not preclude or waive its right to exercise any or all other rights and remedies.
10. Employee Solicitation. During the term(s) of this Agreement and for one (1) year following termination, neither party shall solicit any of the other’s employees, contractors or affiliates involved in the Products or Services to consider alternate employment. For the avoidance of doubt, the preceding sentence does not forbid a solicitation to the general public.
11. Assignment. Either party may assign this Agreement in its entirety (including all Order Forms), without consent from the other party but notice must be provided within 10 days of such assignment. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or for many part of this Agreement, and all such terms or conditions shall be null and void.
13. Execution in Counterparts.This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
14. Force Majeure. Any delay in the performance of any duties or obligations of either party(except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outages any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.