The services referenced in this Agreement ("Service(s)" or "Software") are offered to Customer ("Customer" or "You") by OpenEye. This Agreement between OpenEye and Customer sets forth the legal rights and obligations governing OpenEye's offer, provisioning and delivery of Services, and Customer's receipt and use thereof.
Customer's shall contract for, and order multi-period Subscription Service on a supplemental OpenEye Software Licensing Agreement. Such supplemental Software Licensing Agreement is only applicable when customer shall be contractually obligated to make Subscription Service Agreement payments over a multi-period term.
(1) Software Licensing Agreement (multi period subscription contract if applicable)
(3) Supplemental Product Terms and Conditions (http://www.openeye.net/licenseagreements)
a. "Primary Account" means an OpenEye customer account established in OWS.
b. "Secondary Account" means an end user account established in OWS and nested below a Primary Account. A Secondary (end user) Account cannot exist in OWS without association to a Primary Account.
c. "Primary User" is the person responsible for the creation and ongoing maintenance of a Primary (channel partner) Account.
d. "Service" or "Services" means the complete suite of cloud enabled services which include but are not limited to video relay, user management, health monitoring, video archive, event reporting, and SaleGuard hosting.
6. Subscription, Billing, Cancellation
i. Ongoing Subscription. Customer's OWS subscription including all Secondary end user accounts will continue month-to-month unless and until the subscription is canceled by Customer or terminated by OpenEye.
ii. Differing Subscriptions. OpenEye may offer a number of subscription plans, with differing options, features, conditions and limitations. OpenEye reserves the right to modify, terminate or otherwise amend its subscription plan offerings.
b. Billing and Cancellation
i. Recurring Billing. By initiating an OWS subscription and providing or designating a Payment Method, Customer authorizes OpenEye to charge Customer a recurring subscription fee at the rate specified in the applicable Software Licensing Agreement, or if no Software Licensing Agreement exits, at the then current rate. Customer acknowledges that the amount billed each recurring period may vary for reasons that may include differing amounts due to changing/ adding a Secondary Account plan or changing/ adding additional Services, and Customer authorizes OpenEye to charge its Payment Method for such varying amounts, which may be billed monthly, quarterly, or annually in one or more charges based upon the applicable Software Licensing Agreement.
iii. Billing Cycle. The subscription fee for the Service will be billed at the beginning of Customer's subscription term and each recurring period thereafter unless and until the subscription is canceled. OpenEye will automatically bill Customer's payment method each recurring period on the calendar day corresponding to the commencement of Customer's subscription. Subscription fees are fully earned upon payment. OpenEye reserves the right to change the timing of its billing, in particular, as indicated below, if Customer's payment method has not successfully settled. In the event a subscription began on a day not contained in a given recurring period, OpenEye may bill the payment method on a day in the applicable period or such other day as OpenEye deems appropriate. For example, if Customer's subscription started on January 31st, the next payment date is likely to be February 28th (unless on a quarterly or annual payment plan).
iv. Payment. Customer agrees to pay all fees in the manner specified when invoiced. Fees are exclusive of, and Customer agrees to pay all taxes and similar surcharges. Except for amounts disputed in good faith and in accordance with this section, Fees not paid in full within thirty (30) days of the date of invoice will be past due and subject to a 1.5% per month interest fee or the maximum rate permitted by law, whichever is less, and Customer will be liable for any costs of collection. If Customer is in default of its payment obligations, OpenEye may immediately suspend any and all Services provided to Customer. If Customers has not cured such non-payment within thirty (30) days of Service suspension, Customer will be deemed to have terminated its Service and any applicable early termination fees shall become payable to OpenEye immediately. Customer acknowledges that during any account suspension and upon termination Customer and its Secondary accounts will no longer have access to data warehoused in OWS or to any other Service provided. If Customer disputes any fees in good faith, Customer may withhold payment of that charge so long as Customer makes payment of all undisputed charges and notifies OpenEye in writing within the applicable payment period. If a disputed amount is determined to be a legitimate charge, it may be deemed overdue and interest may be charged on the unpaid balance. No charges may be disputed more than one hundred twenty (120) days after the invoice date and, if not disputed within that time, such charges will be deemed undisputed. Payment will not prejudice Customer's right to dispute charges, so long as they are disputed in the manner and within the time specified in this Section.
v. No Refunds. Subscription Service payments are non-refundable and there are no refunds or credits for partially used periods. Following any cancellation, however, Customer will continue to have access to the service through the end of the current billing period. At any time, and for any reason, OpenEye may provide a credit, discount, or other consideration to some or all of its subscribers ("credits"). The amount and form of such credits, and the decision to provide them, is at OpenEye's sole and absolute discretion. The provision of credits in one instance does not entitle Customer to credits in the future for similar instances, nor does it obligate OpenEye to provide credits in the future, under any circumstance.
vi. Cancellation. Customer may cancel its OWS subscription or its Secondary Account subscriptions at any time. To cancel, go to the "Your Account" page on the OWS website and follow the instructions for cancellation. Customer may also send an email to email@example.com. Upon subscription cancelation, Services will automatically cease to function at the end of the current billing period. OWS will retain any data for a period of 90 days or until the items are deleted by a routine deletion processes, whichever comes first. Some Service features may continue to operate but not in the same manner they did with the paid subscription.
c. Taxes. All Service amounts invoiced are exclusive of taxes and Customer is responsible for all applicable federal, state, local use, excise, sales, privilege taxes, duties, or similar liabilities imposed by operation of law. Depending on Customer's location, OpenEye may invoice such taxes and shall remit them on Customer's behalf. If Customer is except from any taxes, Customer may provide OpenEye with the applicable certificate demonstrating its eligibility for exemption.
7. Resale of Services
a. Customer is the customer-of-record for all Service(s) acquired under this Agreement and may resell such Services to Secondary Account holders. In doing so, Customer will not make any representations or warranties, whether written or oral, to any third parties (including, without limitation, Customer's Secondary Account holders / end users) concerning the Services. Customer will be solely responsible for interfacing with its Secondary Account holders with respect to all matters pertaining to the services provided including, without limitation, service provisioning, billing and collection, dispute resolution and crediting. Customer is responsible for the payment of all charges for Services furnished to Customer and its Secondary Account holders / end users. This responsibility is not diminished or otherwise affected by any: (1) use, misuse, fraud or abuse by Customer, its employees, its End Users, or Customer-provided systems, equipment, facilities or services interconnected to Service; or (2) Customer inability to collect payments or charges from its Secondary Account holders / end users.
b. Customer is responsible for applying and enforcing all applicable provisions of this Agreement on its Secondary Account holders. If OpenEye discontinues providing Service to Customer for violation of Customer's obligations under this Agreement, Customer will be solely responsible for furnishing any required notice to its affected Secondary Account holders.
c. OpenEye will have no obligation to interact with Customer's Secondary Account holders, nor will OpenEye incur any liability to Secondary Account holders for its performance under this Agreement.
8. General Service Provisions
a. OpenEye continually updates the Service, including various aspects of the OWS Service, including the website, user interfaces, subscription plans, and additional features. OpenEye reserves the right at its sole discretion to make changes from time to time and without notice in how its Services are offered and operated.
b. Customer agrees to use the Services, including all features and functionalities associated therewith, in accordance with all applicable laws, rules and regulations, or other restrictions on use of the service or content therein. Customer also agrees not to: use any robot, spider, scraper or other automated means to access the OWS Service; insert any code or product or manipulate the content of the OWS service in any way; or, use any data mining, data gathering or extraction method. In addition, Customer agrees not to upload, post, e-mail or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the OWS Service, including any software viruses or any other computer code, files or programs.
d. Some Web Services ready devices may from time to time stop functioning as intended. If OpenEye deems the non-functioning device to be disruptive to the Service (such as sending information to OWS at an increased rate), OpenEye reserves the right to deactivate the device without warning.
9. Passwords & Account Access
a. Any subscriber who has administrative access to the Primary Account will be considered the Account Owner. The Account Owner has full access and control over the OWS account. The Account Owner's control is exercised through use of the Account Owner's password and therefore to maintain control, the Account Owner should not reveal the password to anyone. Customer is responsible for updating and maintaining the truth and accuracy of the information provided to OpenEye relating to its account.
b. Customer should always access sensitive account information by going directly to the OWS website and not through a hyperlink in an email or any other electronic communication, even if it looks official. OpenEye reserves the right to place any account on hold anytime with or without notification to the subscriber in order to protect itself, its partners, and the Service from what it believes to be fraudulent activity.
10. Data Collected by OWS
i. Heartbeat notices. Recorders send OWS frequent heartbeat notices. These are used to determine if each recorder is online. This information is used to generate alert emails and reports for You.
ii. Health Metrics. Health information is collected from recorders connected to OWS. This information includes, but is not limited to, online status of each camera, hard drive failure warnings and video storage retention values. This information is used to generate alert emails and reports for You.
iii. Connection Information. Information about the user, and devices used to connect to OWS, is collected. This includes, but is not limited to, type of device used to connect and login name of the user. This information is used to generate reports for You.
iv. Sensor and Motion data. Sensor and Motion event data may be sent to OWS. This information is used to generate alert emails and reports for You.
v. Event and Camera Images. Still images of events (such as Motion, Sensor or Intrusion) are sent to OWS. Additionally, two images are collected from each camera per day. These images are included in alert emails and reports provided to You.
vi. Video Clips. You can choose to upload video clips to OWS. These will be viewable only to You and those You choose to share them with.
11. Disclaimers of Warranties and Limitations on Liability
a. THE OWS SERVICE AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE OWS SERVICE, ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. OPENEYE DISCLAIMS ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INTERFERENCE, AND NON-INFRINGEMENT. OPENEYE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT CUSTOMER'S USE OF THE OWS SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. OPENEYE MAY, AT ITS SOLE DISCRETION, SUSPEND OR DISCONTINUE SERVICE AT ANY TIME UPON PROVIDING REASONABLE ADVANCE NOTICE.
b. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT SHALL OPENEYE, OR ITS SUBSIDIARIES OR ANY OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR LICENSORS BE LIABLE (JOINTLY OR SEVERALLY) TO CUSTOMER OR SECONDARY ACCOUNT HOLDERS FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER.
c. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY.
12. Confidentiality. As used in this Agreement, "Confidential Information" means information not generally known to the public, and maintained by the Disclosing Party as confidential, whether of a technical, business, pricing or other nature that relates to the Services and that should reasonably have been understood by the Receiving Party, because of (i) legends or other markings, (ii) the circumstances of disclosure or (iii) the nature of the information itself, to be proprietary and confidential to the Disclosing Party. Confidential Information may be disclosed in written or other tangible form (including information in computer software or held in electronic storage media) or by oral, visual or other means. Receiving Party shall not disclose the Disclosing Party's Confidential Information to anyone without the Disclosing Party's prior written consent and will (i) restrict access, possession, knowledge, development and use of Confidential Information to (a) its employees, agents, subcontractors, consultants, advisors and entities controlled by it ("Personnel"); (b) who have a need to know Confidential Information of the other Party; and (c) who are bound by confidentiality obligations substantially similar to those contained herein; and (ii) be responsible for its Personnel's compliance with this Agreement. Further, use of Service by Customer does not constitute, nor should any use be construed to constitute, a "disclosure" or "receipt" of Customer's Confidential Information or Protected Data, such that OpenEye would be or become a recipient, data processor or handler on behalf of Customer or others. Customer will protect its Protected Data and Content and agrees to configure and maintain its Content to use encryption algorithms, key lengths, and other measures that are consistent with security standards applicable to Customer Protected Data or Content (e.g., PCI, ISO, NIST, and other data privacy standards). Customer's use of Services does not guarantee Customer's compliance with any compliance standard.
13. Intellectual Property
a. Copyright. The OWS Service, including all non-device generated content provided on the OWS service, is protected by copyright, trade secret or other intellectual property laws and treaties.
b. No Reverse Engineering. Customer agrees no to decompile, reverse engineer or disassemble any software or other products or processes accessible through or connected to the OWS service.
c. Trademarks. OpenEye Web Services (OWS) is a registered trademark of OpenEye.
15. US Law and Export. Customer is solely responsible for compliance with the Laws where Services are accessed by Customer or its Secondary Account holders. Additionally, Customer's use of the Services may be subject to U.S. export laws and regulations and that any use or transfer of the Confidential Information or Customer Materials or access and use of Services by Customer or its Secondary Account holders outside the U.S. must be authorized under those laws and regulations and that compliance with such transfer or use is Customer's sole responsibility.
16. Use of Information Submitted. OpenEye is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication Customer may send to us ("Feedback"), including responses to questionnaires or through postings to the OWS Service, including the OWS website and user interfaces, worldwide and in perpetuity without further compensation, acknowledgement or payment to Customer for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the OWS Service. In addition, Customer agree not to enforce any "moral rights" in and to the Feedback, to the extent permitted by applicable law. Should Customer send any unsolicited materials or ideas, Customer does so with the understanding that no additional consideration of any sort will be provided, and Customer is waiving any claim against OpenEye and its affiliates regarding the use of such materials and ideas.