Terms of Use

33300AJ

The Services referenced in this Agreement ("Service(s)" or "Software") are offered to Customer ("Customer" or "You") by PC Open Inc. ("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.

Customers shall contract for, and order multi-period Subscription Services 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.

The Agreement in its entirety shall consist of the terms and conditions in each Software Licensing Agreement, the Supplemental Software Terms and Conditions (which may include the Apex Server EULA, Command Station EULA, OpenEye Mobile for iOS EULA, OpenEye Mobile for Android EULA, and SaleGuard EULA), and this Terms of Use Agreement. In the event of an inconsistency between a term or condition, the following order of priority shall prevail:

(1)     Software Licensing Agreement (multi period subscription contract if applicable);

(2)     This Terms of Use Agreement; and

(3)     Supplemental Product Terms and Conditions (http://www.openeye.net/licenseagreements).

Please note these Terms of Use include hyperlinks that may be accessed only through OpenEye's website, if reviewing these Terms of Use through certain devices, it may be necessary to visit https://ows.openeye.net/legal/terms to review hyperlinked terms.

1.             Definitions

a.       "Primary Account" means an OpenEye customer account established in the Service.

b.       "Secondary Account" means an end user account established in the Service and nested below a Primary Account. A Secondary (end user) Account cannot exist in the Service without association to a Primary Account.

c.        "Primary User" is the person responsible for the creation and ongoing administration of a Primary (service provider) Account.

d.       "Service" or "Services" or "Web Service" or "Software" means the complete suite of cloud enabled services, web portals, client software, application software, and the OpenEye-provided operating system environment when applicable.

2.             Acceptance of Terms of Use. These Terms of Use, which include OpenEye's Privacy Policy (https://ows.openeye.net/legal/privacy), govern Customer and Customer's end users' use of the Service. By using, visiting, or browsing the Service, Customer and end user accept and agree to these Terms of Use. If Customer or its end users do not agree to these Terms of Use, the Service should not be utilized.

3.             Changes to Terms of Use. OpenEye may, from time to time, change these Terms of Use, including the Privacy Policy. Such revisions shall be effective immediately upon posting; provided however, for existing Customers, such revisions shall, unless otherwise stated, be effective 30 days after posting. You should view these Terms of Use often to stay informed of any changes that may affect You. Your continued use of the Services thereafter signifies Your acceptance to such changes.

4.             Privacy. Personal information is subject to OpenEye's Privacy Policy (https://ows.openeye.net/legal/privacy), the terms of which are incorporated herein. Please review the Privacy Policy to understand OpenEye's practices.

5.             Communication Preferences. By using the Service, Customer consents to receiving electronic communications from the Service relating to Customer's Account, and further represents and warrants that Customer has obtained from end users prior express written consent sufficient to permit Customer and OpenEye to contact end users by autodialed telephone calls including text messages. These communications may further involve sending emails to Customer or displaying notices within the Primary User's and Secondary User's Software. Communication may include notices about Customer's Account (e.g., change in password, confirmation e-mails and other transactional information) and are part of Customer's relationship with OpenEye. Customer agrees, and shall ensure that each end user agrees, that any notices, agreements, disclosures or other communications that OpenEye sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. Customer also consents to receiving certain other communications from OpenEye, such as newsletters about new Service features and content, special offers, promotional announcements and customer surveys via email or other methods. OpenEye's primary means of communicating information from the Service is by email or text. This information includes status reports, general notices, and alerts. If Customer does not wish to receive certain non-transactional communications, unsubscribe using the unsubscribe options on the email and Customer shall ensure that each end user is informed in writing about their options to unsubscribe as set forth above. Customer represents and warrants that it has reviewed and agrees to our Privacy Policy (https://ows.openeye.net/legal/privacy) including without limitation receipt of marketing communications as set forth therein. By using the Service's text messaging options (including alerts and Multi-factor authentication), Message and Data Rates may apply to each text message sent or received as provided in Customer's cellular service rate plan. OpenEye will not be held responsible for any charges incurred on Customer's or Customer end users' cellular service plan as a result of using text message notifications, and Customer shall be responsible for informing its end users in writing that Message and Data Rates may apply. Customer shall maintain written records sufficient to demonstrate its compliance with its obligations under this Section and shall furnish such records to OpenEye upon request.

6.             Subscription, Billing, Cancellation

a.       Subscription

                                i.      Ongoing Subscription. Customer's Service subscription including all Secondary end user accounts will continue month-to-month unless and until the Service is canceled by Customer or terminated by OpenEye.

                               ii.      Differing Subscriptions. OpenEye may offer several Service plans, with differing options, features, conditions and limitations. OpenEye reserves the right to modify, terminate or otherwise amend its Service plan offerings.

b.       Billing and Cancellation

                                i.      Recurring Billing. By initiating a Service subscription and providing or designating a Payment Method, Customer authorizes OpenEye to charge Customer a recurring Service 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.

                               ii.      Price Changes.  Except as provided for in a multi-period Software Licensing Agreement, OpenEye reserves the right to adjust pricing for its Service or any components thereof in any manner and at any time as it may determine at its sole and absolute discretion. Except as otherwise expressly provided for in these Terms of Use, Channel Partner Agreement, or a Software Licensing Agreement, any price changes to Services will take effect 30 days following notification.

                              iii.      Billing Cycle. The subscription fee for the Service will be billed at the beginning of Customer's Service term and each recurring period thereafter unless and until the Service is canceled. OpenEye will automatically bill Customer's payment method each recurring period on the calendar day corresponding to the commencement of the Service unless an alternate arrangement has been agreed to in writing. Service 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 the Service 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). Customer shall pay OpenEye, in advance, a monthly or annual service charge for any subscription-based service, beginning on the date on which such Customer's account for such service is activated by OpenEye. With respect to the 24/7 subscription Service, Customer shall pay OpenEye, in advance, a monthly or annual service charge for using or having access to the 24/7 Service beginning on the first day of the calendar month following the Installation Grace Period. As used herein, the "Installation Grace Period" is equal to one calendar month plus the number of days remaining in the month in which Customer's service is activated by OpenEye regardless of when the service is deployed by Customer. A purchase order processing fee equal to one month of service shall be invoiced when Customer submits a monthly Service 24/7 access request by purchase order (a purchase order processing fee does not apply to annual subscriptions or to monthly subscriptions when activated through the Admin Portal). The final month in which such service is provided shall be paid in full, in advance by Customer, and no refunds will be issued should the account be terminated mid-month or year. Service plan changes that result in a higher monthly or annual service charge will be billed, and shall be paid, in arrears during the next billing cycle. Service plan changes that result in a lower monthly service charge will become effective in the subsequent month and will not be pro-rated during the month in which the change is made.

                              iv.      Payment. Customer agrees to pay all Service fees in the manner specified when invoiced. Service 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 Customer 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 the Service 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.  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 Service or its Secondary Account Services at any time. Upon Service cancelation, Services will automatically cease to function at the end of the current billing period. OpenEye will retain any data for a period of 90 days or until the items are deleted by a routine deletion process, whichever comes first. Some Service features may continue to operate but not in the same manner they did with the paid Service.

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, withholding, value added taxes 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 exempt 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 Service 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 Services, which include various aspects of the Service, such as the website, user interfaces, Service plans, client software, application software, and OpenEye-provided operating system environments. OpenEye may, in its sole discretion, make changes from time to time and without notice to its Services including how its Services are delivered, operated, and updated.

b.       Customer agrees, and will ensure that each end user agrees:

                                 i.       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;

                                ii.       not to: use any robot, spider, scraper or other automated means to access the Service; insert any code or product or manipulate the content of the Service in any way; or, use any data mining, data gathering or extraction method;

                               iii.       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 Service, including any software viruses or any other computer code, files or programs;

                               iv.       not to upload, post, e-mail or otherwise send or transmit any material that You do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);

                                v.       not to register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any products or services except when expressly authorized by such party to do so;

                               vi.       not to delete any author attributions, legal notices or proprietary designations or labels that You upload to any communication feature;

                              vii.       not to upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party;

                             viii.       not to upload or transmit any unsolicited advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes" or any other form of solicitation, commercial or otherwise;

                               ix.       not to violate any applicable local, state, national or international law;

                                x.       not to probe, scan, test the vulnerability of or breach the authentication measures of, the Services or any related networks or systems;

                               xi.       not to harvest or otherwise collect information about others, including e-mail addresses;

                              xii.       not to attempt to gain any unauthorized access to the Services or any associated content, including computer systems, software, or networks;

                              xiii.       to provide information to OpenEye in connection with the use of its Services that is true, accurate, and complete, to the best of Customer's knowledge, ability, and belief.

c.        OpenEye may terminate or restrict Customer's use of the Service, without compensation or notice if OpenEye suspects Customer is (i) in violation of any of these Terms of Use or (ii) engaged in illegal or improper use of the Service.

d.       Some devices utilized in conjunction with the Service 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 the Service at an increased rate), OpenEye reserves the right to deactivate the device without warning.

e. OpenEye reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of these Terms of Use, including, without limitation, the suspension or termination of Customer's access and/or account. OpenEye may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Except as may be expressly limited by the Privacy Policy, OpenEye reserves the right at all times to disclose any information as OpenEye deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in OpenEye's sole discretion. Customer also agrees to reimburse OpenEye for any damage, loss, cost or expense OpenEye incurs (including fees or costs of attorneys, accountants, professional advisors, and other experts incurred in connection with the defense or settlement of the foregoing) because of Customer's use of the System for any unlawful or prohibited purpose.

9.             Passwords & Account Access

a.       Any end user who has administrative access to the Primary Account will be considered the Account Owner. The Account Owner has full access and administrative control over the 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 Service 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 end user in order to protect itself, its partners, and the Service from what it believes to be fraudulent activity.

10.         Data Collected by OpenEye

a.       Devices connected to the Service will send the Service various types of information. This information is used in various ways, including providing You with reports and emails about the status of Your devices and account. Some of the information may also be used by OpenEye to improve Services provided to You. OpenEye will only use this information in ways outlined in its privacy policy (https://ows.openeye.net/legal/privacy). OpenEye takes the privacy of Your data very seriously. We encourage You to read our privacy policy. The following is an example of the types of information we collect from devices connected to the Service. The information collected by the Service will continue to change as new Service capabilities are released.

                                 i.      Heartbeat notices.  Application software running on devices send the Service frequent heartbeat notices. These are used to determine if each device is online. This information is used to generate alert emails and reports for You.

                               ii.      Health Metrics. Health information is collected from devices connected to the Service. 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 the Service, 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 the Service. This information is used to generate alert emails and reports for You.

                               v.      Event and Camera Images.  Images and metadata from events (such as motion, sensor, access control or intrusion, video analytics, and point of sale transactions) are sent to the Service. These images and event data are included in alert emails and reports provided to You.

11.         Disclaimers of Warranties and Limitations on Liability

a.       THE SERVICE AND ALL CONTENT AND SOFTWARE ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH THE SERVICE, ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND AND SUBJECT TO THE FOLLOWING LIMITATIONS OF LIABILITY. OPENEYE DISCLAIMS ALL WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INTERFERENCE, NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY A COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. OPENEYE AND/OR OUR THIRD PARTY SUPPLIERS OR LICENSORS DO NOT GUARANTEE, REPRESENT, WARRANT OR COVENANT THAT THE SERVICES ARE OR WILL BE ACCURATE, CURRENT, COMPLETE, FREE OF TECHNICAL AND TYPOGRAPHICAL ERRORS, SECURE, RELIABLE, OR APPROPRIATE FOR ANY PARTICULAR USE TO WHICH CUSTOMER OR ANY THIRD PARTY MAY CHOOSE TO PUT THEM, THAT THE SERVICES ARE OR WILL BE AVAILABLE ON AN UNINTERRUPTED AND ERROR-FREE BASIS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS. OPENEYE PERIODICALLY AMENDS, CHANGES, ADDS, DELETES, UPDATES, OR ALTERS THE SERVICES WITHOUT NOTICE. FURTHER, OPENEYE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE SERVICES. OPENEYE SPECIFICALLY DISCLAIMS ANY DUTY TO UPDATE THE CONTENT, OR ANY OTHER INFORMATION ON THE SERVICES. OPENEYE MAY, AT ITS SOLE DISCRETION, SUSPEND OR DISCONTINUE SERVICE AT ANY TIME UPON PROVIDING REASONABLE ADVANCE NOTICE.

b.       EXCEPT AS LIMITED BY APPLICABLE LAW, THE LIABILITY OF OPENEYE, ITS AFFILIATES, LICENSORS AND DISTRIBUTORS, ALONG WITH THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AND AGENTS, FOR ANY LOSS OR DAMAGE ARISING OUT OF MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR DEFECTS IN THE SERVICES OR FOR LOSSES OR DAMAGES ARISING OUT OF THE FAILURE OF OPENEYE TO MAINTAIN PROPER STANDARDS OF MAINTENANCE AND OPERATIONS SHALL NOT EXCEED USD $250.00. OPENEYE SHALL BE NOT LIABLE FOR ANY MISTAKE, OMISSION, INTERRUPTION, OR DEFECT IN THE SERVICE CAUSED BY THE NEGLIGENCE OR WILLFUL ACT OF ANY CUSTOMER, USER, CHANNEL PARTNERS, PARTIES OTHER THAN OPENEYE, OR WHEN CAUSED BY ACTS OF GOD, FIRE, WAR, RIOTS, GOVERNMENT AUTHORITIES, DEFAULT OF SUPPLIER, OR OTHER CAUSES BEYOND THE CONTROL OF OPENEYE, INCLUDING WITHOUT LIMITATION DEFECT IN OR FAILURE OF EQUIPMENT PROVIDED BY ANY PARTY OTHER THAN OPENEYE. IN NO EVENT SHALL OPENEYE, ITS AFFILIATES, LICENSORS OR ITS DISTRIBUTORS OR ANY OF THEIR SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS BE LIABLE (JOINTLY OR SEVERALLY) TO ANY CUSTOMER, USER, CHANNEL PARTNER OR SECONDARY ACCOUNT HOLDER FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR SIMILAR DAMAGES OR COSTS (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO PROPERTY, LOSS OF USE, BUSINESS INTERRUPTION, AND CLAIMS OF THIRD PARTIES) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, THE SERVICES, OR ANYTHING DESCRIBED IN THE FOREGOING CLAUSES, OR ANY OTHER CAUSE BEYOND THE CONTROL OF OPENEYE, EVEN IF OPENEYE WAS ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS, OR ANY OTHER 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. IN A JURISDICTION THAT DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, THE AGGREGATE LIABILITY OF OPENEYE OR ITS SUBSIDIARIES OR ANY OF THEIR SHAREHOLDERS, AND THE OFFICERS, DIRECTORS, EMPLOYEES OR LICENSORS OF EACH OF THE FOREGOING, SHALL BE LIMITED IN ACCORDANCE WITH THESE TERMS OF USE TO THE FULLEST EXTENT PERMITTED BY LAW.

d.       NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY. If any provision or provisions of these Terms of Use shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.

e. Any cause of action or claim Customer may have with respect to the Service, or any other aspect of Customer's relationship with OpenEye, must be commenced within one (1) year after the claim or cause of action arises.

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 Service 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. The 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, such that OpenEye would be or become a recipient, data processor or handler on behalf of Customer or others.

13.         Intellectual Property

a.       Copyright. The Service, including all non-device generated content provided on the Service, is protected by copyright, trade secret or other intellectual property laws and treaties. All rights not expressly granted to Customer in these Terms of Use are reserved and retained by OpenEye.

b.       No Reverse Engineering. Customer agrees not to copy, modify, create a derivative work from, decompile, reverse engineer or disassemble, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in or access to the Service including all related software or other products or processes accessible through or connected to the Service.

c.        Trademarks. OpenEye Web Services (OWS) is a registered trademark of OpenEye.

14.         Governing Law. The Agreement including these Terms of Use shall be governed by and construed in accordance with the laws of the State of Washington, U.S.A. without regard to conflict of laws provisions. Any claim under or relating to this Agreement shall be brought exclusively in the Spokane County Superior Court. Customer further expressly waives any claim that venue is improper for any reason in this court.

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 Service, including the 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 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.

 

17. Typographical Errors. The Services could include technical inaccuracies or typographical errors. OpenEye shall have no liability in connection with any such inaccuracies or errors, nor shall OpenEye have any obligation to identify and/or correct any such inaccuracies or errors.

 

18. Links to Other Websites. For Customer's convenience, certain hyperlinks may be provided on the Services that link to other websites or social media platforms which are not under the control of OpenEye (the "Linked Websites"). OpenEye does not endorse or sponsor any Linked Websites and is not responsible for the availability, accuracy, content, or any other aspect of the Linked Websites. OpenEye disclaims all liability for such websites, for all access to and use thereof, and for use of the links to such websites. OpenEye also disclaims all liability, and makes no representations or warranties, with respect to any products or services made available, sold, or provided to You by any third party. Customer's use of Linked Websites and any purchases of products or services from such Linked Websites are subject to the terms and conditions of such other websites. Customer agrees that Customer will bring no suit or claim against OpenEye arising from or based upon any such use of any Linked Websites. Hyperlinks to such Linked Websites on the Services do not imply that: (a) OpenEye is affiliated or associated with any Linked Website; (b) OpenEye is legally authorized to use any trademark, trade name, logo, or copyright symbol displayed in connection with or accessible through such links; or (c) any Linked Site is authorized to use any trademark, trade name, logo, or copyright symbol of OpenEye.

 

19. Links to the Websites. Neither Customer nor any other website may link to the Services without the permission of OpenEye. In any event, without our express, prior, written permission, it is expressly prohibited to: (a) "deep link" to any page of the Services other than the home page; (b) "frame" the Services or any content or otherwise cause the Services or any content to appear in a window with any other material that does not constitute content; (c) cause the hyperlink to the Services to be displayed in any way that is disparaging to OpenEye or any entity that is affiliated or associated with OpenEye; or (d) otherwise imply or state that any type of relationship or special arrangements exist with OpenEye and any other entity. Customer agrees that Customer will promptly remove any hyperlink to the Services upon the written request of OpenEye. In no event will Customer use any logo or trademark of OpenEye as a hyperlink "button", or in any other manner, without OpenEye's express written consent.

 

20. Disclaimer of Third Party Information. To the extent that any information, material, or functionality on the System and Services is provided by third party content providers ("Third Party Materials"), OpenEye has no editorial control or responsibility over such Third Party Materials. Therefore, any opinions, statements, products, services or other Third Party Materials are those of the applicable third party. OpenEye does not represent or endorse the accuracy or reliability of any opinion, statement or other information provided by any third party (including any Submissions), or represent or warrant that Customer's use of any Third Party Materials will not infringe rights of third parties not owned by or affiliated with OpenEye.

 

21. Severability. If any provision or provisions of these Terms of Use shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full force and effect.

 

Contact Us

OpenEye welcomes any comments or questions You may have regarding these Terms of Use and/or the Services. Please contact us with Your comments or questions at https://www.openeye.net/contact-us, by phone at +1.509.232.5261 , or by mail at 1730 N. Madson Street, Liberty Lake, WA 99091.

 

Last Updated

These Terms of Use were last updated on August 31, 2021. Please check back periodically for updates and changes.