This Agreement was last updated on February 28,2024. It is effective between You and Usas 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 YOUHAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS ANDCONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALLREFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, ORIF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THISAGREEMENT AND MAY NOT USE THE PRODUCTS. YOU WILL NOT BE CHARGED UNLESS YOU USETHE PRODUCTS.
YOU MAY NOT ACCESS THE PRODUCTS IF YOU ARE A DIRECT COMPETITOR, EXCEPT WITH PRIOR WRITTEN CONSENT BY US. IN ADDITION, YOU MAY 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.
I. DEFINITIONS
1. "Affiliate"means any entity which directly or indirectly controls, is controlled by, or isunder common control with the subject entity. "Control," for purposesof this definition, means direct or indirect ownership or control of 50% ormore of the voting interests of the subject entity.
2. “Fees”means all monies due (in USD) to EyeLevel.ai for use by You of the Products asper this Agreement.
3. "MaliciousCode" means viruses, worms, time bombs, trojan horses and other harmful ormalicious code, files, scripts, agents or programs.
4. "OrderForm" means the ordering documents and/or online order forms used to purchasethe license governed by this Agreement. Typically, the Order Form is a simple one-page document but may also includeaddenda, 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-basedapplication(s), solution(s), and platform(s) provided by Us via www.eyelevel.ai, www.groundx.ai, and/or other designated websites, that areordered by or provided to You, including associated offline components andservices, if any, and any related Products or services that You or YourAffiliates purchase from EyeLevel.ai, directly or indirectly. The Products may consist of Productdocumentation, 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 ofthe following: Library, Platforms, Server Products, Applications, Programs andDeveloper Tools, all as modified from time to time. This Agreement defines the entire Productsand all its Components.
6. "UserGuide" means the online user guidance presented and accessible from withinthe Products or any site associated therewith, as updated from time to time. This may also be referred to as the EyeLevel.aior 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 identificationsand passwords by You (or by Us at Your request). Users may include but are notlimited to Your employees, consultants, contractors and agents or third partieswith which You 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 byEyeLevel.ai.
10. "You" or "Your" means bothYou and the company or other legal entity for which you are accepting thisAgreement, and Affiliates of that company or entity.
11. "Your Data" means all digitalinformation (sometimes called and including “Electronically Stored Information”or “ESI”) – including but not limited to electronic documents, spreadsheets, emails,digital records, transcripts, databases and related metadata – that is providedto Us or submitted/uploaded to the Products by You.
12. “Output” means an any response, report orsimilar reply or information presented by or within the Products in response toany Prompt.
13. “Prompt” means any question, inquiry, or otherrequest a User submits to the Products.
II. GENERAL GRANT OF LICENSE
1. General Grant. In general, for each license you haveacquired for the Products, you have unlimited, non-exclusive rights of usewithin Your organization.
2. Individual License. If You are an individual, We grant to you asan individual, a personal, nonexclusive license to use the Products inaccordance with the terms of this Agreement, provided that you are the sole personusing the Products.
3. Entity License. If You are an entity or are registering onbehalf of an entity, We grant to You the right to designate individuals withinyour organization to have the right to use the Products in accordance with theterms 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 Productsand subject to the terms and conditions of this Agreement. Additional licenseterms may accompany Updates. By accessing, installing, copying or otherwiseusing any Update, You agree to be bound by the terms accompanying each suchUpdate. If You do not agree to the additional license terms accompanying suchUpdate, 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 aduration of Our sole and exclusive choosing. Additional trial terms andconditions may appear on the trial registration web page or may be provided byUs to You. Any such additional terms and conditions are incorporated into thisAgreement 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 ANYCUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR TRIAL WILL BEPERMANENTLY LOST UNLESS YOU PURCHASE THE PRODUCTS AS COVERED BY THE TRIAL OR,TO THE EXTENT AVAILABLE WITHIN THE PRODUCTS'S NORMAL FUNCTION, EXPORT SUCH DATABEFORE THE END OF THE TRIAL PERIOD.
3. NOTWITHSTANDING THE SECTION BELOW TITLEDWARRANTIES 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 Youpursuant to this Agreement. You agree that Your purchases hereunder are neithercontingent on the delivery of any future functionality or features nordependent on any oral or written public comments made by Us regarding futurefunctionality or features.
V. USE OF THE SERVICES
1. Our Responsibilities. We shall: (i) provide to You basic supportfor the Products at no additional charge, and/or upgraded support if purchasedseparately; (ii) use commercially reasonable efforts to make the Productsavailable 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 ifappropriate, and by our sole discretion) and which shall be scheduled, to theextent practicable, at lowest usage times or, (b) any unavailability caused bycircumstances beyond Our reasonable control, including without limitation, actsof God, acts of government, flood, fire, earthquakes, civil unrest, pandemics, actsof terror or malice, strikes or other labor problems (other than thoseinvolving Our employees), or Internet service provider failures or delays; and(iii) provide the Products only in accordance with applicable laws andgovernment regulations.
2. Your Responsibilities. You shall (i) be responsible for Your andYour Users' compliance with this Agreement; (ii) be solely responsible for theaccuracy, quality, integrity and legality of Your Data and of the means bywhich You acquired Your Data, except to the extent the acquisition of such datais due to the technical functions of the Products; (iii) use commerciallyreasonable efforts to prevent unauthorized access to, or use of, the Productsfor 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 andapplicable laws and government regulations; (v) not use the Products in a waythat infringes, misappropriates or violates any person’s rights.
3. Usage Limitations. You shall not (a) make the Productsavailable to anyone other than Users, (b) sell, resell, rent or lease the Productswithout Our prior written consent, (c) use the Products to store or transmitinfringing, libelous, or otherwise unlawful or tortious material, or to storeor transmit material in violation of third-party privacy rights, (d) knowinglyuse the Products to store or transmit Malicious Code, (e) interfere with ordisrupt the integrity or performance of the Products or third-party datacontained therein, (f) use the Products to illegally attempt to access, acquireor otherwise obtain Data to which You are not legally entitled or (g) attemptto 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 designedto deliver Data to, and accept Data from, Third-Party Products and Services providerson Your behalf and as authorized by You. For example, You may request that Databe 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 andServices. No purchase of third-party productsor services is required to use the Products. Any acquisition by You ofthird-party products or services, except as may be offered by Us from time totime, 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 applicablethird-party provider. We do not warrant or support third-party products orservices.
3. Third-Party Applications and Your Data. If You enable Third-Party Applications foruse with the Products or the Data managed by the Products, You acknowledge thatWe may allow providers of those Third-Party Applications to access Your Data asrequired for the interoperation of such Third-Party Applications with the Productsat Your Request. We shall not be responsible for any disclosure, modificationor deletion of Your Data outside of the Products resulting from any such use byThird-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 or GroundX.ai directly, or via an authorized EyeLevel.ai orGroundX.ai partner or reseller (the “Fee Schedule” or “Fees”). The Fee Schedulewill set forth the pricing for Your use of the Product(s). Your use of the Products is deemed to be Youracknowledgement and acceptance of the relevant fees, including transactional andrecurring 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 onYour requests and not on your actual usage or non-usage of the results of anysuch request, and (iii) payment obligations are non-cancelable and fees andmonies paid are non-refundable.
3. Fee Schedule Changes. Unless otherwise specified on any applicablePurchase Order, Order Form, or other such document, We reserve the right toalter that Fee Schedule at any time, provided that we give You no less than a30-day notice of the Fee Schedule changes.
4. Invoicing and Payment. You shall pay all fees for your use of theProducts. You will provide Us with valid and updated credit card information,or with a valid purchase order, invoicing contact information or alternativedocument reasonably acceptable to Us. If You provide credit card information toUs, You authorize Us to charge such credit card for all Products requests asper the Order Form or as per the Fee Schedule. Such charges shall be processedat the time You submit each request, or in accordance with any other billingfrequency to which We agree in writing. If You specify that payment will be bya method other than a credit card, We will invoice You at the time You submiteach request. Invoiced charges are due upon receipt. You are responsible formaintaining complete and accurate billing and contact information in the Products.
5. Automatic Renewal. Unless You notify Us no less than 30 daysprior 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 Formor Fee Schedule.
6. Overdue Charges. If any charges are not received from You bythe due date, then at Our discretion, (a) such charges may accrue late interestat the rate of 1.5% of the outstanding balance per month, or the maximum ratepermitted by law, whichever is lower, starting 30 days after the date suchpayment was due until the date paid, and/or (b) We may condition future paymentterms that are shorter than those specified herein or in your Order Form or FeeSchedule, or (c) We may require advanced payment for continued future use ofthe Products.
7. Suspension of Access to Products. If any Fees or other amounts owing by Youunder this, the Order Form or any other agreement between You and Us, for the Productsor Our services, are 60 or more days overdue, then We may, without limiting Ourother rights and remedies, suspend Your access to the Products and any relatedservices provided to You until such amounts are paid in full.
8. Payment Disputes. During the first 30 days after a payment isdue (the “Dispute Period”), You will not be considered in breach of thisAgreement if You withhold the portion of such payment that is subject to a bonafide dispute; provided You: (a) give Us written notice setting forth in detailthe reason for the dispute, on or before the payment due date; (b) meet andconfer in good faith with Us to resolve the dispute, starting promptly aftersuch notice; (c) pay the undisputed portion of the payment on or before its duedate; and (d) pay the disputed fees, if legitimate, promptly after resolutionof the dispute. No dispute will alter Our rights to interest payments pursuantto this section regarding payments actually due. You waive any claim or disputeregarding any Fees not raised during the Dispute Period.
9. Collection Costs. You shall pay all Our reasonable collectioncosts, including attorney fees, incurred by Us to collect any Fees or other chargesdue to Us under this Agreement following Your breach of Your paymentobligations to Us.
10. Taxes.Unless otherwise stated or presented to You at the time of any Per Use orservice request order, Our Fees do not include any taxes, levies, duties orsimilar governmental assessments of any nature, including but not limited tovalue-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 purchaseshereunder. If We have the legal obligation to pay or collect Taxes for whichYou are responsible under this paragraph, the appropriate amount shall beinvoiced to and paid by You, unless You provide Us with a valid tax exemptioncertificate authorized by the appropriate taxing authority. For clarity, We aresolely 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, andtreaties. We or Our suppliers own the title, copyright, and other intellectualproperty rights in the Products. The Products are licensed, not sold.
2. Reservation of Rights. Subject to the limited rights expresslygranted hereunder, We reserve all rights, title, and interest in, and to, the Productsincluding all related intellectual property rights. No rights are granted toYou hereunder other than as expressly set forth in this Agreement.
3. Restrictions. You shall not (i) permit any third-party to access the Productsexcept as permitted by this Agreement; (ii) create derivative works based onthe 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 owninternal business continuity purposes; (iv) reverse engineer the Products inany way; or, (v) access the Products in order to (a) build a competitive Productsor service or (b) copy any features, functions, graphics, text or other digitalor programmatic elements of the Products.
4. Limitation on Reverse Engineering,De-compilation and Disassembly.You acknowledge that the Products and the Products structure, organization andsource code contain Our valuable trade secrets. Accordingly, You may notreverse engineer, decompile or disassemble the Products nor allow for anythird-party under your control to do so.
5. Publicity. EyeLevel.ai and GroundX.ai mayuse Customer’s name and logo (“Customer Marks”) in its Customer list (includingon EyeLevel.ai’s and GroundX.ai’s websites, social media and in sales andmarketing materials) in the same manner in which it uses the names of its othercustomers. EyeLevel.ai and GroundX.ai shall use Customer Marks in accordancewith Customer’s applicable branding guidelines and EyeLevel.ai and GroundX.aimay not use Customer’s name in any other way without Customer’s prior writtenconsent (with email consent deemed sufficient).
6. ANY AND ALL TECHNOLOGY WILL NOT BE WORK MADEFOR HIRE. We shall remainthe 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 andcontent of the courses as presented to You or other Users, and to any methods,procedures, practices, and software or hardware solutions utilized, and anyother intellectual property whether used or developed by Us or Our agents orAffiliates in connection with the Products or services provided by Us (each andall of the foregoing, the "Intellectual Property").
7. Ownership of Your Data. You exclusively own all rights, title andinterest in and to all of Your Data. That is independent of access to Your Datafor there may be additionally incurred charges for Your use of the Products orYour access to Your Data as provided by this Agreement, the Order Form orrelated agreements or addenda. Your ownership rights to Your Data do notrestrict 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 orlicense to You any other right, title, or interest in or to any prompts, usagedata or other such data within the Products. Without limiting the foregoing,You will be solely responsible for providing all appropriate notices to thirdparties (including all employees, agents, and independent contractors) andobtaining from third parties all necessary consents and rights for Us to useYour Data submitted by or on behalf of You for the purposes set forth in thisAgreement, including all consents required in accordance with all applicableprivacy laws. You shall immediately notify, and address with, Us any complaintsor claims of third parties regarding Your Data.
8. License to Customer Data. Customer hereby grantsEyeLevel.ai, GroundX.ai and its suppliers a non-exclusive, royalty-free licenseto access, use, reproduce, modify and display the Customer Data for thepurposes of (i) providing the Hosted Services, (ii) exercising its rights andobligations under this Agreement; (iii) generating Aggregated and AnonymousData (as defined below); and (iv) complying with its obligations under law. Allrights in and to the Customer Data not expressly granted herein are retained byCustomer.
9. Rights to Outputs. We offer no representation or warranty,express or implied, related to intellectual property or other rights inOutputs, 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, publiclydisplay, and use Outputs. We grant the license in the preceding sentence undersuch copyrights as You may have, if any. We shall not: (a) publicize ordistribute Outputs; or (b) access or use Outputs other than to maintain orimprove the Products or to support Your use of the System. The precedingsentence does not restrict Our rights to information from independent sourcesthat also appears in Outputs.
10. Usage, Suggestions, or Feedback. You represent and warrant that you have allrights necessary to submit suggestions and/or feedback to Us about Your use ofthe 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 worksof, and otherwise commercially or non-commercially exploit in any manner, orincorporate into the Products 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 doesnot transfer to You any ownership of Training Data or any right to access oruse 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, and We may collect and use suchPerformance Data for any lawful purpose, provided We will only disclosePerformance Data to third parties, including its subcontractors, for thepurposes of facilitating the Products, for internal purposes, including toimprove Our Products and services, to perform Our other obligations andexercise Our rights under this Agreement, or as otherwise required by law.
12. Transfer. You may permanently transfer or assign all your rights to the Productssubject to the related assignment terms in this Agreement.
13. Technical and Statistical Information. You agree that We and Our Affiliates maycollect and use anonymized technical and statistical information and metricsabout Your use of the Products or that You may provide as a part of supportservices related to the Products. We agree not to use this information in aform that personally identifies You.
14. Federal Government End Use Provisions. This paragraph applies to all acquisitionsof the Products by or for the United States federal government, including byany prime contractor or subcontractor (at any tier) under any contract, grant,cooperative agreement, or other activity with the Federal government. TheProducts 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 Computer Software Documentation,”as such terms are used in 48 C.F.R. §12.212 (for civilian agencies) and 48C.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 CommercialComputer Software and Commercial Computer Software Documentation are beinglicensed to U.S. Government end users (a) only as Commercial Items and (b) withonly such rights as are granted to all other end-users pursuant to the termsherein. Any provisions of this Agreement inconsistent with federal procurementregulations or other federal law are not enforceable against the U.S.Government. Unpublished rights are reserved under the copyright laws of theUnited States. You shall not remove or deface any restricted rights notice orother legal notice appearing in the Products or on any packaging or other mediaassociated with the Products. This section does not grant You any rights notspecifically set forth in this Agreement, including without limitation, anyright to distribute the Products to the United States federal government.
15. Export Control. You acknowledge that the goods, software andtechnology acquired from EyeLevel.ai are subject to U.S. export control lawsand regulations, including but not limited to the International Traffic In ArmsRegulations ("ITAR") (22 C.F.R. Parts 120-130 (2010)); the ExportAdministration Regulations ("EAR") (15 C.F.R. Parts 730-774 (2010));the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasuryregulations; the economic sanctions regulations and guidelines of the U.S.Department of the Treasury, Office of Foreign Assets Control, and the USAPatriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), asamended. You are now and will remain in the future compliant with all suchexport control laws and regulations, and will not export, re-export, otherwisetransfer any EyeLevel.ai Products, services, materials or technology ordisclose such to any person contrary to such laws or regulations. Youacknowledge that remote access to the Products may in certain circumstances beconsidered a re-export of the Products, and accordingly, may not be granted incontravention of U.S. export control laws and regulations. Without limiting thegenerality of the foregoing, You shall not permit any third party to access oruse the Products in, or export the Software to, a country subject to a UnitedStates embargo.
16. Use of Trademarks. You agree to use trademarks associated with EyeLevel.aiand GroundX.ai according to accepted trademark practice, includingidentification of the trademark owner’s name, “EyeLevel.ai,” or “GroundX.ai”. Trademarks can only be used to identify EyeLevel.aiand GroundX.ai as well as Products and services associated with EyeLevel.ai andGroundX.ai as defined in this Agreement or the Order Form or associatedagreements and addenda. The use of any trademark authorized by this Agreement doesnot give You any rights of ownership in that trademark and all use of anytrademark shall inure to the sole benefit of EyeLevel.ai. You may not changeany trademark or trade name designation for any aspect of EyeLevel.ai.
IX. CONFIDENTIALITY
1. Definition of Confidential Information. As used in this Agreement,"Confidential Information" means all confidential informationdisclosed by a party ("Disclosing Party") to the other party("Receiving Party"), whether orally or in writing, that is designatedas confidential or that reasonably should be understood to be confidentialgiven the nature of the information and the circumstances of disclosure. YourConfidential Information shall include Your Data; Our Confidential Informationshall include the Products; and Confidential Information of each party shallinclude the terms and conditions of this Agreement and all Order Forms, as wellas business and marketing plans, technology and technical information, Productsplans and designs, and business processes disclosed by such party. However,Confidential Information (other than Your Data) shall not include anyinformation that (i) is or becomes generally known to the public without breachof any obligation owed to the Disclosing Party, (ii) was known to the ReceivingParty prior to its disclosure by the Disclosing Party without breach of anyobligation owed to the Disclosing Party, (iii) is received from a third partywithout breach of any obligation owed to the Disclosing Party, or (iv) wasindependently developed by the Receiving Party.
2. Protection of Confidential Information. Except as otherwise permitted in writing bythe Disclosing Party, (i) the Receiving Party shall use the same degree of carethat it uses to protect the confidentiality of its own confidential informationof like kind (but in no event less than reasonable care) not to disclose or useany Confidential Information of the Disclosing Party for any purpose outsidethe scope of this Agreement, and (ii) the Receiving Party shall limit access toConfidential Information of the Disclosing Party to those of its employees,contractors and agents who need such access for purposes consistent with thisAgreement and who have signed confidentiality agreements with the ReceivingParty containing protections no less stringent than those herein.
3. Protection of Your Data. Without limiting the above, We shallmaintain appropriate administrative, physical, and technical safeguards forprotection of the security, confidentiality and integrity of Your Data. Weshall not (a) modify Your Data, (b) disclose Your Data except as compelled bylaw in accordance with the "Compelled Disclosure" Section below or asexpressly permitted by You, or (c) access Your Data except to provide the Productsor prevent or address service or technical problems, or at Your request inconnection with customer support matters.
4. Compelled Disclosure. The Receiving Party may discloseConfidential Information of the Disclosing Party if it is compelled by law todo so, provided the Receiving Party gives the Disclosing Party prior notice ofsuch compelled disclosure (to the extent legally permitted) and reasonableassistance, at the Disclosing Party's cost, if the Disclosing Party wishes tocontest the disclosure. If the Receiving Party is compelled by law to disclosethe Disclosing Party's Confidential Information as part of a civil proceedingto which the Disclosing Party is a party, and the Disclosing Party is notcontesting the disclosure, the Disclosing Party will reimburse the ReceivingParty for its reasonable cost of compiling and providing secure access to suchConfidential Information.
X. WARRANTIES AND DISCLAIMERS
1. Disclaimer of Warranties. Any warranty limitation referenced in thisAgreement is the only express warranty made to You and is provided in lieu ofany other express warranties (if any) created by any sales, marketing or otherdocumentation. Except for any limited warranty that may be provided in anyother section of this Agreement, and to the maximum extent permitted byapplicable law, We and Our suppliers and Affiliates provide the Products andsupport services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim allother warranties and conditions, either express, implied, statutory orotherwise, 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, oflack of viruses and of lack of negligence, all with regard to the Products, andthe provision of or failure to provide support services, to the maximum extentpermitted by applicable law. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE,QUIET ENJOYMENT, QUIET POSSESSION AND CORRESPONDENCE TO DESCRIPTION ORNON-INFRINGEMENT WITH REGARD TO THE PRODUCTS.
2. Our Warranties. We warrant that (i) the Products shallperform as per the representations made in the User Guide, this Agreement, any OrderForm or related Agreement and addenda, if any; and (ii) the functionality ofthe Products will not be materially decreased. For any breach of either suchwarranty, 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 notknowingly transmit to the other party any Malicious Code.
4. OUTPUTS. EXCEPT AS OTHERWISE PROVIDED HEREIN, WITH RESPECT TO OUTPUTSSPECIFICALLY, YOU AGREE TO ACCEPT ALL OUTPUTS ‘AS IS,’ WITH NO REPRESENTATIONOR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED. FURTHER, WE DO NOT REPRESENT ORWARRANT THAT OUTPUTS WILL BE FREE OF ERROR NOR OF CONTENT THAT MAY INFRINGE ONTHIRD PARTY RIGHTS, INCLUDING WITHOUT LIMITATION, PRIVACY AND INTELLECTUALPROPERTY 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 forexperimental purposes and without any warranty of any kind and may be modifiedor 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 bya third-party alleging that the use of the Products as permitted hereunderinfringes or misappropriates the intellectual property rights of such third-party,and shall indemnify You for any damages finally awarded against, and forreasonable 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) giveUs sole control of the defense and settlement of the Claim (provided that Wemay not settle any Claim unless the settlement unconditionally releases You ofall liability); and (c) provide to Us all reasonable assistance, at Ourexpense.
2. Indemnification by You. You shall defend Us against any Claim made orbrought against Us by a third-party alleging that Your Data, or Your use of theProducts in violation of this Agreement, infringes or misappropriates theintellectual property rights of such third-party or violates applicable law,and shall indemnify Us for any damages finally awarded against, and forreasonable 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 Youmay not settle any Claim unless the settlement unconditionally release Us ofall liability); and (c) provide to You all reasonable assistance, at Ourexpense.
3. Exclusive Remedy. The indemnifying party's sole liability to,and the indemnified party's exclusive remedy against, the other party for anytype 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 AGGREGATELIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT,TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BYYOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOTLIMIT YOUR PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT FOR PURCHASEDSERVICES" SECTION.
2. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, ANDCERTAIN OTHER DAMAGES. IN NO EVENTSHALL 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 ORCONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONALINJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOODFAITH OR OF REASONABLE CARE, FOR NEGLIGENCE AND FOR ANY OTHER PECUNIARY OROTHER LOSS WHATSOEVER), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OFLIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITEDBY APPLICABLE LAW.
3. BASIS OF THE BARGAIN. THESE LIMITATIONS OF LIABILITY WILL APPLYNOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THEPARTIES ACKNOWLEDGE THAT THE FEE SCHEDULE HAS BEEN SET AND THIS AGREEMENTENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCHLIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THEPROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT. OUR FEESFOR THE PRODUCTS REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OFLIABILITY SPECIFIED HEREIN.
4. The foregoing limitations, exclusions, anddisclaimers shall apply to the maximum extent permitted by applicable law, evenif any remedy fails its essential purpose.
XIII. TERM AND TERMINATION
1. Term of Agreement. This Agreement commences on the date Youaccept it and continues until Your account has been terminated. If You elect touse the Products for a trial period and do not purchase the Products before theend of that period, this Agreement will terminate at the end of the trialperiod.
2. Termination for Cause. Either party may terminate this Agreementfor cause: (i) upon 30 days written notice to the other party of a materialbreach 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 otherproceeding relating to insolvency, receivership, liquidation or assignment forthe benefit of creditors.
3. Refund or Payment upon Termination. Upon any termination for cause by You, Weshall refund You any fees for any related services not actually provided. Uponany termination for cause by Us, You shall pay any unpaid Fees and relatedcharges, billed or unbilled, covering any use of the Products or relatedservices actually provided prior to the effective date of termination. In noevent shall any termination relieve You of the obligation to pay any Fees andrelated charges payable to Us for the use of the Products or services providedprior to the effective date of termination.
4. Return of Your Data. Upon request by You made within 90 daysafter the effective date of the termination of Your use of the Products, andprovided that You have fully paid for all requested use of the Product and anyrelated Services, We will make Your Data available to You for download.
5. DELETION OF YOUR DATA. AFTER 90 DAYS FROM THE EFFECTIVE DATE OF YOURTERMINATION OF YOUR USE OF THE PRODUCTS, WE SHALL HAVE NO OBLIGATION TOMAINTAIN OR PROVIDE ANY OF YOUR DATA AND, UNLESS LEGALLY PROHIBITED, MAY DELETEALL OF YOUR DATA IN OUR SYSTEMS OR OTHERWISE IN OUR POSSESSION OR UNDER OURCONTROL.
6. Surviving Provisions. There are several provisions that shall survivethis Agreement The Sections titled "Fees and Payment Terms","Proprietary Rights", "Confidentiality", "Warrantiesand Disclaimers", "Mutual Indemnification", "Limitation ofLiability", "Refund or Payment upon Termination", "Returnof Your Data", “Deletion of Your Data” and "General Terms" shallsurvive 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 eitherparty to the other shall be in writing and delivered personally, effective onthe date of delivery, by overnight delivery via a nationally recognizedovernight courier to be effective the day following deposit, or sent byregistered or certified mail, postage prepaid, return receipt requested, to beeffective three (3) days after deposit.
2. Notice to Us. All Notices to Us shall be delivered via email to legal@eyelevel.aiAND via certified mail or express overnight service to EyeLevel.ai, 1127S. Grant St., Denver, CO 80210.
3. Notice to You. Noticesto You shall be addressed to the User and at the address designated by You inthe Products or the Shipping Address on the Order Form, and in the case ofbilling-related notices, to the relevant billing contact designated by You.
4. Address Changes. We may change Our address for Notices inwhich case we will provide notice of such change of address by notifying You atthe email address You have registered with Us. You may change your address atany time by accessing the Products using Your user login information.
5. Governing Law and Jurisdiction. This Agreement will be governed by the lawsof the State of Delaware, without regard to the principles of conflict of laws,the United Nations Convention on Contracts for the International Sale of Goods,or other international laws.
6. Waiver of Juries and Class Actions. Each party hereby waives its right to atrial by jury for disputes arising out of or related to this Agreement,including without limitation counterclaims regarding such disputes, claimsrelated to the parties’ negotiations and inducements to enter into thisagreement, and other challenges to the validity or enforceability of thisagreement. The waiver in the preceding sentence applies regardless of the typeof dispute, whether proceeding under claims of contract or tort (includingnegligence) or any other theory. Neither party shall bring or participate inany class action or other representative proceeding arising out of or relatedto this agreement, whether proceeding under contract or tort (includingnegligence) or any other theory (collectively, “This Agreement’s Claims”). ThisAgreements’s Claims include, without limitation, counterclaims, claims relatedto the parties’ negotiations and inducements to enter into this agreement, andother challenges to the validity or enforceability of this agreement. Theproceedings 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-Party Beneficiaries. There are no third-party beneficiaries tothis Agreement.
3. Government Action. The Parties acknowledge that the Productsand any related services may be subject to certain state, federal, or locallaws, statutes, acts, ordinances, rules, codes, standards and or regulations.The parties further acknowledge that in the event that the terms set forth inthis Agreement are affected or required to be modified from time-to-time bystate, or federal, or local laws, statutes, acts, ordinances, rules, codes,standards and or regulations that such modifications shall be incorporated asrequired without terminating or invalidating this Agreement.
4. Waiver and Cumulative Remedies. No failure or delay by either party inexercising any right under this Agreement shall constitute a waiver of thatright. Other than as expressly stated herein, the remedies provided herein arein addition to, and not exclusive of, any other remedies of a party at law orin equity.
5. Severability. If any provision of this Agreement is held by a court ofcompetent jurisdiction to be contrary to law, the provision shall be modifiedby the court and interpreted so as best to accomplish the objectives of theoriginal provision to the fullest extent permitted by law, and the remainingprovisions of this Agreement shall remain in effect.
6. Amendment. We may amend this Agreement from time to time by posting anamended version on our website and sending You a written notice thereof, whichmay be delivered via your email as You provide to Us. Such amendment willbecome effective 30 days after such notice unless You terminate this Agreementpursuant to the terms herein. Your continued use of the Products after such30-day notice period will confirm Your consent to such amendment.
7. Construction. The parties agree that this Agreement will not be construed infavor of or against either party by reason of authorship.
8. Other Policies. You are hereby on notice of Our DMCA Policyand Privacy Policy, and You recognize that such policies are not part of thisAgreement and that this Agreement does not restrict Our rights to revise them.
9. Cumulative Rights. The rights and remedies provided by thisAgreement are cumulative, and the exercise of any right or remedy by eitherparty, whether pursuant to this Agreement, to any other agreement, or to law,shall not preclude or waive its right to exercise any or all other rights andremedies.
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’semployees, contractors or affiliates involved in the Products or Services toconsider alternate employment. For the avoidance of doubt, the precedingsentence does not forbid a solicitation to the general public.
11. Assignment. Either party may assignthis Agreement in its entirety (including all Order Forms), without consentfrom the other party but notice must be provided within 10 days of suchassignment. Subject to the foregoing, this Agreement shall bind and inure tothe benefit of the parties, their respective successors and permitted assigns.
12. Entire Agreement. This Agreement, including all exhibits andaddenda hereto and all Order Forms, constitutes the entire agreement betweenthe parties and supersedes all prior and contemporaneous agreements, proposalsor representations, written or oral, concerning its subject matter. Nomodification, amendment, or waiver of any provision of this Agreement shall beeffective unless in writing and either signed or accepted electronically by theparty against whom the modification, amendment or waiver is to be asserted. However,to the extent of any conflict or inconsistency between the provisions in thebody 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 conditionsstated in Your purchase order or other order documentation (excluding OrderForms) shall be incorporated into or form any part of this Agreement, and allsuch terms or conditions shall be null and void.
13. Execution in Counterparts. This Agreement may be executed in one ormore counterparts. Each counterpart will be an original, but all suchcounterparts will constitute a single instrument.
14. Force Majeure. Any delay in the performance of any dutiesor 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 alabor dispute, shortage of materials, war, fire, earthquake, typhoon, flood,natural disasters, governmental action, pandemic/epidemic, cloud-serviceprovider outages any other event beyond the control of such party, providedthat such party uses reasonable efforts, under the circumstances, to notify theother Party of the circumstances causing the delay and to resume performance assoon as possible.
