This Agreement is made and entered into by and between eyeQ, Inc., a Delaware corporation with a place of business at 1139 West Braker Lane, Suite 202, Austin, Texas 78758 (“eyeQ”), and you or, if you are entering into this Agreement on behalf of a company or other legal entity, such entity (“Customer”), effective as of the earlier of the date on which: (a) the parties first enter into an Order Form (as defined below); or (b) Customer first accesses or uses any Device (as defined below) (“Effective Date”). BY ENTERING INTO AN ORDER FORM, OR ACCESSING OR USING ANY DEVICE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ENTER INTO AN ORDER FORM, OR ACCESS OR USE ANY DEVICE. IF YOU ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THIS AGREEMENT.
(a) “Captured Data” means any data captured by a Device deployed by Customer pursuant to this Agreement.
(b) “Device” means the eyeQ Go device.
(c) “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
(d) “Order Form” means an order form entered into between the parties pursuant to this Agreement, setting forth the number of Devices ordered by Customer and the price for each Device.
(e) “Report” means a report provided by eyeQ to Customer in PDF and CSV format containing the results of eyeQ’s analysis of Captured Data.
(f) “Software” means any software contained in a Device, including firmware or other embedded software.
(a) Delivery. eyeQ shall deliver to Customer the number of Devices specified in each Order Form. Customer shall be solely responsible for the delivery charges specified in each Order Form (if any) and any applicable customs charges.
(b) Deployment and Retrieval. Customer shall be solely responsible for: (i) proper deployment and retrieval of Devices, including proper retrieval and reporting of Device serial codes to eyeQ; and (ii) giving all required notices to and obtaining all necessary consents from individuals whose images, likenesses, movements or other features or information may be recorded by Devices. Customer will return each Device to eyeQ after use for processing of Captured Data by eyeQ. Customer acknowledges that not all Devices may capture usable data. eyeQ shall have no obligation to process Captured Data on Devices returned to eyeQ more than six months after shipment from eyeQ, and neither party shall have any liability to the other party with respect to Devices not returned to eyeQ within six months after shipment from eyeQ.
(c) Reports. Upon receipt of a Device returned by Customer to eyeQ for processing of Captured Data, eyeQ shall: (i) retrieve and analyze the Captured Data; (ii) generate analytical Reports based on Captured Data; and (iii) make the proprietary Reports accessible to Customer electronically. These proprietary Reports will present captured data in aggregate form only, and are for use only by Customer.
(d) Restrictions. Each Device may only be used once and may not capture data for more than ninety (90) days. Devices are not designed for outdoor use and may only be used indoors. Except as expressly permitted under this Agreement, Customer shall not itself, nor shall it permit any other party to: (i) access or use Software accept as necessary to deploy and use the Device in which the Software resides; (ii) reproduce, modify, translate, adapt or create derivative works based upon any Software; (iii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of any Device or Software; (iv) use any Device for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to any Device; (v) rent, lease, lend, sell or sublicense any Device or otherwise provide access to any Device as part of a service bureau or similar fee-for-service purpose; or (vi) use a Device in any way that does not comply with all applicable laws and regulations.
(f) Export Control. Devices and Software may be subject to export control laws and regulations of the United States or other export/import restrictions in other jurisdictions. Customer shall be solely responsible for complying with any such applicable laws and regulations with respect to its use and deployment of Devices.
3. Captured Data
(a) Types. Captured Data may include Wi-Fi MAC addresses, signal strength, body counts, duration a person remains in a frame, and the distance of a person in relation to the Device.
(b) Uses. eyeQ shall use Captured Data only as necessary to analyze such data and generate Reports for Customer, and Customer may not access Captured Data except as presented in Reports.
(c) Anonymized Data. Notwithstanding Section 3(b), eyeQ may use Captured Data in anonymized form for quality assurance purposes, its business purposes and any other manner permitted under applicable law, including as part of any products, services or marketing by or from eyeQ. Such data includes data for which the following information has been removed: precise location of data collection, name of data collection location and Customer name.
4. Fees and Taxes
(a) Fees. Customer shall pay eyeQ the applicable fees set forth in each Order Form pursuant to the payment terms therein. If an Order Form does not specify payment terms, then payments thereunder shall be due net thirty (30) days after invoice. Amounts not paid when due are subject to interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less.
(b) Taxes. Any and all amounts payable hereunder by Customer are exclusive of any sales, use, value-added, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes. If eyeQ has the legal obligation to collect any Taxes, Customer shall reimburse eyeQ upon invoice by eyeQ. If Customer is required by law to withhold any taxes from its payments to eyeQ, Customer shall provide eyeQ with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payment.
5. Intellectual Property and Ownership of Devices
(a) eyeQ Ownership. Customer acknowledges and agrees that, as between eyeQ and Customer, eyeQ owns all rights, title and interest (including all Intellectual Property) in and to Devices an all related Software. eyeQ reserves all rights not expressly granted under this Agreement. THIS AGREEMENT PROVIDES CUSTOMER WITH ONLY TEMPORARY, ONE-TIME USE OF DEVICES. EYEQ RETAINS OWNERSHIP OF ALL DEVICES.
(b) Suggestions. If Customer elects to provide or make available to eyeQ any suggestions, comments, ideas, improvements or other feedback relating to Devices or Software (“Suggestions”), eyeQ shall be free to use, disclose, reproduce, have made, modify, license, transfer and otherwise utilize and distribute Suggestions in any manner, without credit or compensation to Customer.
(c) Proprietary Notices. Customer shall not remove, obscure or modify in any way any patent markings or copyright, trademark or other proprietary notices or disclaimers that appear on Devices.
6. Term and Termination
(a) Term. The term for this Agreement shall commence on the Effective Date and continue in effect for one year thereafter (the “Initial Term”). Upon the conclusion of the Initial Term, this Agreement shall automatically renew for successive one-year terms (each, a “Renewal Term”) unless the parties have not entered into any Order Form during the then-current Renewal Term.
(b) Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows: (i) upon a material breach of this Agreement by a party, which breach is not cured within thirty (30) days after receipt of written notice from the other party; or (ii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
(c) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 2(d) Restrictions; 3(c) Anonymized Data; 4 Fees and Taxes; 5 Intellectual Property; 6(c) Survival; 7 Representations and Warranties; 8 Indemnification; 9 Disclaimer of Warranties; 10 Limitation of Liability; and 11 Miscellaneous.
7. Representations and Warranties
(a) General. eyeQ and Customer each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
(b) Limited Warranty. For a period of six months after shipment of each Device, eyeQ represents and warrants that such Device will be free from defects in materials and workmanship. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE WARRANTY IN THIS SECTION 7(b) SHALL BE REPAIR OR REPLACEMENT OF THE AFFECTED DEVICE OR, UPON MUTUAL AGREEMENT OF THE PARTIES, REFUND OF THE PURCHASE PRICE PAID BY CUSTOMER FOR THE DEVICE.
(a) eyeQ Indemnification. eyeQ agrees that Customer shall have no liability and eyeQ shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Losses”) asserting that Customer’s use of a Device infringes the Intellectual Property of such third party; provided, however, that eyeQ shall have no obligation to indemnify Customer from any Losses to the extent they arise from: (i) use of the Device in any manner that does not comply in all material respects with the terms and conditions of this Agreement or applicable laws or regulations; or (ii) modifications to the Device not made or authorized by eyeQ; or (iii) any Captured Data (Sections 8(a)(i) through 8(a)(iii), collectively, “Customer Acts”). In the event that a Device becomes the subject of a Loss or eyeQ reasonably determines that a Device is likely to become the subject of a Loss, eyeQ may, at its sole discretion: (1) procure for Customer a license as necessary for Customer to exercise the rights granted by eyeQ under this Agreement; (2) modify or replace the Device to avoid infringement, provided, however, that the Device as modified or replaced retains materially the same or better features and functionality; or (3) refund the purchase price paid by Customer for the Device. THIS SECTION 8(a) SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT ARISING OUT OF OR RELATING IN ANY WAY TO A DEVICE.
(b) Customer Indemnification. Customer agrees that eyeQ shall have no liability and Customer shall indemnify, defend and hold eyeQ harmless against any Loss to the extent arising from Customer Acts.
(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 8, except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
9. DISCLAIMER OF WARRANTIES
ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EYEQ, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 7), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S REQUIREMENTS.
10. LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO EYEQ’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8: (A) IN NO EVENT SHALL EYEQ BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF A DEVICE, EVEN IF EYEQ HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) IN NO EVENT SHALL EYEQ’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY EYEQ FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.
(a) Independent Contractors. The relationship between eyeQ and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.
(b) Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided below, or such other contact information as either party shall notify the other in accordance with this Section 11(b): if to eyeQ, at the address set forth in the preamble, Attn: Legal Department; if to Customer, at the address set forth for Customer in the most recent Order Form.
(c) Assignment. Customer may not assign this Agreement, or sublicense, assign or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of eyeQ. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(d) Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(e) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Order Form, the terms and conditions of this Agreement shall take precedence.
(f) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
(g) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(h) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(i) Jurisdiction. Any action, proceeding, controversy or claim between the parties arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Austin, Travis County, Texas, and each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
(j) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(k) Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.
The Terms and Conditions were last updated on October 9, 2017.