ZENSORS, INC. END-USER LICENSE AGREEMENT
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This End-User License Agreement ( “EULA” ) is made by and between Zensors, Inc., a Delaware corporation, (“Zensors”) located at 4800 Liberty Avenue, 2nd floor, Pittsburgh, PA - 15224 and you hereinafter generally referred to as “You” or “End User.”  By using Zensors Product, You are  agreeing to these terms, You represent and warrant that You have the authority to accept this Agreement, and You also agree to be bound by its terms.

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WHEREAS, Zensors and End-User wish to set forth the terms and conditions under which Zensors may provide rich analytics Products to assist End-User in making better decisions based on real data as set forth more fully in this Agreement and any Order;

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NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, including the payment by End-User for Zensors’ Products through a Partner Reseller or directly to Zensors, the receipt and sufficiency of which are hereby acknowledged, Zensors and End-User (individually, each a “Party” and collectively “Parties”) do hereby agree as follows:

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1. DEFINITIONS: For purposes of this Agreement, statement of work, purchase order, or any subsequent Order between the Parties, each of the following terms shall have the definitions herein agreed upon:
   
   1. “Affiliate[s]” is any entity now or hereinafter controlling, controlled by, or under common control with a Party.  As used in this definition, “control” (including “controlled by” and “under common control with”) shall mean possessing either directly or indirectly (a) at least 50% of the ownership, or (b) the power to direct or cause the direction of the management or policies of the subject entity (whether by ownership, contract or otherwise).
   2. “Agreement” shall mean this EULA, any documents incorporated by reference and any Order[s] involving both Parties, whether they exist now or are created or modified in the future.
   3. "Confidential Information" means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
   4. “Customer” means the consumer or potential consumer of End-User’s product[s] or service[s].
   5. “Documentation” means the user manuals, reference manuals and other materials and documentation (in whatever form, including in electronic format) relating to the installation, use, operation, performance, capacity, quality, scope or functionality of the Product[s].
   6. “Effective Date” means the date that the Products were purchased through a Partner Reseller or directly from Zensors.
   7. “End-User Data” means electronic data and information submitted by or for End-User or collected and processed by or for End-User using the Products or aggregate information.  It includes information in any form relating to the End-User including Personal Data, Video Image Data, and information concerning those who use or may use Products(s)
   8. “Hardware” means any hardware, including but not limited to cameras and computers, provided by Zensors in connection with this Agreement.
   9. “Intellectual Property” means all intellectual property rights in any jurisdiction including: (i) registered and unregistered copyrights, works of authorship, and copyrightable subject matter; (ii) trademarks, service marks, brand names, trade dress, logos, slogans, and other similar designations of source or origin; (iii) patents, patent applications, invention disclosures and all related provisionals, continuations, divisionals, reissues, re-examinations, substitutions and extensions thereof; (iv) trade secrets, proprietary know-how (including processes, procedures, research and development, concepts, drawings, designs, algorithms and specifications) and (v) any other intellectual property or proprietary rights recognized under any jurisdiction.  
   10. “Intellectual Property Rights” means the rights recognized in any jurisdiction, including applications and registrations for the same, relating to all patents, copyrights, moral rights, trademarks, trade secrets and any other form of Intellectual Property as defined above.
   11. “Order” means any statement of work, purchase order, invoice, or other document that describes a discrete transaction under this Agreement, such as a resale of Product, a sale of Product subject to a referral agreement, a statement of work for software development fees, or any other similar document executed in line with this Agreement.
   12. “Partner Reseller” means the person or entity through which Zensors’ Product(s) are sold to End-User. 
   13. “Product” means products or services set forth in Order(s) as offered by Zensors.
   14. "Retention Period” is the time duration that the End User requires Zensors to retain Video Image Data to support the End User’s use of the Products or required to comply with legal or regulatory obligations, including under tax, security or data protection laws.
   15. “Statistical Data” is aggregated data; data acquired through data capture, syndication, and analysis tools and other similar tools to extract, compile, synthesize, analyze any non-personally and non-End-User identifiable data or information resulting from End-User’s use of the Product[s].
   16. “Trademarks” shall have its generally understood meaning, and shall include both registered and non-registered trademarks, but shall not include trade dress.
   17. “Third Parties” shall mean any entity other than a Party. 
   18. "Video Image Data” shall mean video and/or image that is captured by any optical or electronic device.
   19. “Written Notice” shall mean an English language communication delivered in line with the section of this Agreement governing written notice. 

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2. TERM AND TERMINATION OF AGREEMENT
   
   1. This Agreement shall be in full force and effect as of the Effective Date, and shall continue in full force and effect during the term of service defined in an Order or until terminated under the provisions of this Agreement.
   2. A Party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  
   3. No Party will be charged a termination fee unless one is specifically mentioned in an Order.  Either Party may terminate this Agreement for convenience upon sixty (60) days’ written notice.  
   4. If End User terminates for convenience, all remaining payments upon any outstanding Order shall immediately become due.
   5. Each Party acknowledges that the rights of termination hereunder are absolute.  Neither Party shall incur any liability or compensation obligation for any damage (including, without limitation, damage to or loss of goodwill or investment), loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination of this Agreement by such Party that complies with the terms of the Agreement, whether or not such Party is aware of any such damage, loss or expense. 
   6. All obligations of good faith, confidentiality, and payment, dispute resolution, and limitations of liability, and all other obligations which by their nature should survive termination of this agreement, shall survive termination of this agreement. 

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3. TERMINATION ASSISTANCE
   
   1. Each Party shall provide access to their facilities, as necessary, for the recovery or return of any property of the other Party.
   2. Zensors’ termination assistance, if any is necessary,  shall be as defined in each applicable Order.

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4. HARDWARE TERMS:
   
   1. Zensors shall at all times hold exclusive title to the Hardware
   2. Under this Agreement, End-User receives a non-exclusive right (unless an Order specifies otherwise) to use the Hardware as necessary and to provide access to Hardware upon reasonable notice during End User’s business hours or otherwise at End User’s convenience.  Zensors reserves the right to inspect and service the Hardware.  End User will promptly return all Hardware to Zensors at Zensors’ request or upon termination or expiration of the Agreement.
   3. End User shall keep the Hardware free of any and all liens, claims, and encumbrances and shall not lease, sublease, transfer, dispose of, sell or assign the Hardware.
   4. End User shall maintain the Hardware in good operating condition.  End User is responsible for any loss or damage that occurs with respect to the Hardware while in the exclusive possession of End User, excluding ordinary wear and tear or any loss resulting from Zensors’ actions or inactions.

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5. FEES AND TAXES
   
   1. End User will pay all fees specified in the Order. Except as otherwise specified herein or in an Order, (i) fees are based on Products purchased, (ii) payment obligations are non-cancelable and fees paid are non-refundable.
   2. Unless otherwise stated in the Order, fees are due net 30 days from the receipt of invoice.
   3. All prices subject to this agreement are exclusive of Taxes.  End User shall pay and shall indemnify and hold Zensors harmless from taxes, export fees and other charges or costs required to comply with governmental regulations of any type levied upon End User’s purchase of Products, or other performance under this Agreement, provided however, that End User shall not be liable for taxes based on Zensors’ net income.  If Zensors is required to pay such Taxes, other than net income, or other costs, Zensors shall invoice End User for such taxes and End User agrees to pay such invoice within thirty (30) days of the date of such invoice.

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6. PROPRIETARY RIGHTS AND LICENSES
   
   1. Subject to the limited rights expressly granted hereunder, Zensors and its licensors reserve all of their right, title and interest in and to the Products and Documentation, including all of their related Intellectual Property Rights. No rights are granted to End User hereunder other than as expressly set forth herein or in an Order.  Any source code created or used by Zensors for the Products provided hereunder shall at all times and fully and forever remain the property of Zensors and shall be subject to the Usage Restrictions set forth at Section 7.1, unless such rights are explicitly granted in an Order.
   2. End User shall own all Video Image Data.  Zensors may, but is not required to, retain all video images until or unless the Agreement is terminated or the End User defines in writing an alternate Retention Period.
   3. End User provides Zensors a worldwide, royalty-free, exclusive license to retain and use Video Image Data for the duration of the Retention Period to enable Zensors to deliver Products to the End User
   4. End User grants to Zensors a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Products any suggestion, enhancement request, recommendation, correction or other feedback provided by End User relating to the operation of the Product[s].
   5. End User hereby provides Zensors a worldwide, royalty-free, exclusive perpetual license to retain and use selected Video Image Data for Zensors’ Product testing and improvement purposes.  Typically, this data will be random, anonymized and non-continuous video images to assist in training machine learning internally at Zensors for use in End User’s and possibly other applications.  Zensors shall hold End User harmless for all claims, liabilities, damages or judgments which may arise as a result of a failure of Zensors to protect the confidentiality of this information.
   6. Zensors will own and retain ownership of any information, derivative works, work product, Statistical Data and other Intellectual Property it creates. 

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7. USAGE RESTRICTIONS
   
   1. End User will not (a) make any Product or Statistical Data from a Product available to, or use any Product or Statistical Data from the Product for the benefit of anyone other than End User or its Affiliate(s) unless agreed to in writing in a separately executed document, (b) sell, resell, license, sublicense, distribute, rent or lease any Product or Statistical Data from the Product, or include any Product or Statistical Data from the Product in a service bureau or outsourcing offering, (c) use a Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Product to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Product or third-party data contained therein, (f) attempt to gain unauthorized access to any Product or its related systems or networks, (g) permit direct or indirect access to or use of any Product or Statistical Data from the Product in a way that circumvents contractual requirements, (h) copy a Product or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Product, or (j) access any Product in order to build a competitive product or service, or (k) reverse engineer any Product (to the extent such restriction is permitted by law).

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8. NOTICES AND PRIMARY CONTACT
   
   1. All notices required by this Agreement, or any associated document, shall be deemed sufficient when provided by: (a) hand delivery, (b) certified United States Postal Service mail, signature required return receipt requested, (c) use of any nationally recognized overnight courier that serves all fifty states, provided delivery uses a tracking number, (d) when e-mailed provided the sender is not notified of any errors such as a returned e-mail, mailbox unable to accept, document too large for recipient’s mailbox, or other similar errors. 
   2. Notices shall be deemed effective upon the date of delivery.
   3. Notices to Zensors will be addressed to its attention at the address first set forth in this Agreement unless otherwise defined in an Order or emailed to solutions@zensors.com. 
   4. Billing-related notices to End User will be addressed to the relevant billing contact designated by End User, and Legal Notices to End User will be addressed to End User and be clearly identifiable as Legal Notices, at the address first set forth by End User or other current legal address. All other notices to End User will be addressed to the contact designated by End User in the Order.

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9. STATUS OF THE PARTIES
   
   1. Each Party to this Agreement acknowledges that it is acting as an independent contractor of the other, and nothing in this Agreement, nor any referenced document, entitles either Party to hold itself out as an Agent of the other. Each has the sole obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all work to be performed by them under this Agreement. Each Party shall have the exclusive right to hire, transfer, suspend, lay off, recall, promote, assign, discipline, discharge and adjust grievances with its own employees. No Party has the authority to bind the other in any manner.
   2. Each Party acknowledges that nothing in this Agreement shall require the other Party to enter into any contract in the future, nor is this Agreement an offer or guarantee of any future business.
   3. The Parties explicitly state that they are not joint venturers, legal partners, principals, joint employers, employer and employee of or with the other, as those terms are defined pursuant to Delaware law. 

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10. DISPUTE RESOLUTION
    
    1. In the event of any dispute relating to this Agreement, the Parties will have the initial obligation of attempting to resolve said disputes by informal, good-faith discussions within one (1) week of written Initial Notice of the Dispute.  If that process fails, prior to filing suit, the parties will engage in a confidential dispute resolution process involving decision-makers from each side with sufficient authority to resolve and compromise on behalf of each Party in front of a paid neutral mediator acceptable to both Parties. This process shall occur within thirty (30) days of the initial Notice of the Dispute or as soon as practicable.  Any information or other documents exchanged during the mediation shall not be admissible during any subsequent litigation.  Only after informal discussions and mediation fail shall either Party be authorized to file suit to address the dispute.  
    2. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the Commonwealth of Pennsylvania, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Each Party irrevocably consents to the exclusive jurisdiction, forum and venue of the Federal and State courts in Allegheny County, Pennsylvania.  The prevailing Party to any suit shall be entitled to its reasonable costs, expenses and attorneys’ fees payable by the non-prevailing Party. 

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11. TECHNICAL SUPPORT
    
    1. Zensors shall provide support and maintenance to End Users in a manner materially consistent with the Order but not less than commercially reasonable. 
    2. Zensors’ technical support shall be as outlined in a related Order.

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12. CONFIDENTIAL INFORMATION
    
    1. Definition of Confidential Information. Confidential Information of End User includes End-User Data; Confidential Information of Zensors includes the Products; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing) except as is necessary to obtain business loans or funding (with an appropriate non-disclosure agreement in place), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
    2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
    3. Breach.  In the event of any breach of this Confidentiality section, Disclosing Party may seek entry of a Court order immediately to restrain or enjoin the breach of said covenant by Receiving Party and otherwise enforce the provisions of this section in Court, without necessarily the need to follow the Dispute Resolution terms contained herein. In such case, the Court may only grant injunctive relief and NOT award costs, fees or damages, which values must be addressed through the dispute resolution process.
    4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
    5. Representations and Warranties.  Any Confidential Information is provided “as is” and the Disclosing Party makes no representations or warranties, express or implied, with respect to the Confidential Information and shall have no liability to the Receiving Party or any other person or entity for any reliance on Confidential Information by the Receiving Party or any such person or entity. Notwithstanding the foregoing, each Party warrants that it has the right to disclose Confidential Information pursuant to this Agreement.  
    6. Privacy Assurance.  All Confidential Information, including but not limited to trade secrets and other proprietary technology is customarily and actually treated as private by Zensors.  The Confidential Information is being provided to End User under an assurance of privacy.

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13. LIMITATIONS OF LIABILITY/WARRANTIES
    
    1. EXCEPT FOR DAMAGES ARISING FROM BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY'S LIABILITY SHALL EXCEED THE AMOUNT PAID BY END USER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS BROUGHT UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT END USER'S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
    2. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, REVENUES OR INDIRECT, SPECIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW IN THE JURISDICTION WHERE THE ACTION IS BROUGHT.  EACH PARTY UNDERSTANDS AND AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE REASONABLE AND NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS.
    3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES.  SERVICES ARE PROVIDED “AS-IS” AND ZENSORS DISCLAIMS ANY WARRANTY OR REPRESENTATION THAT ITS SERVICES WILL ACHIEVE CERTAIN, SPECIFIED OR UNSPECIFIED, RESULTS.

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14. INDEMNIFICATION
    
    1. Parties shall indemnify, defend, and hold each other harmless from and against all claims (including, without limitation product liability claims), suits, losses, damages, costs including reasonable attorneys’ fees for, related to, or arising out of (i) negligence, misrepresentation, error or omission on the part of the other Party or such Party’s sub-distributors, representatives or agents; (ii) modifications made by or for such Party’s sub-distributors, representatives or agents to a product or service; (iii) any business dealings between or among Parties, their sub-distributors, and/or representatives or agents (including without limitation any warranty offered to end users); and/or (vi) any breach by either Party and/or its sub-distributors, representatives or agents of their obligations under this Agreement. 
    2. Each Party warrants that all products, services, software, code, intellectual property related to development or development fees, and any other intellectual property used by said Party is either owned by such Party or such Party has the appropriate licenses or authority to use it in the manner in which it is used in furtherance of the Agreement.
    3. If Zensors’ Product[s] becomes or, in Zensors’ opinion, is likely to become the subject of an injunction preventing the use of the Product[s] as contemplated herein or in any Order, Zensors may at its option (i) obtain for End User the right to continue using the Product[s] as provided for in this Agreement, or (ii) replace or modify the Product[s] so that it becomes non-infringing without substantially compromising its principal functions.  If (i) and (ii) is not reasonably available to Zensors, then it may terminate this Agreement upon written notice to End User and refund to End User any fees that were pre-paid for the then current term, pro-rated for the remainder thereof.  The foregoing states the entire liability Zensors and End User’s exclusive remedy with respect to actual or alleged intellectual property rights by the Product[s], any part thereof or their use and operation. 

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15. RESERVED RIGHT TO SELL
    
    1.  Both Parties reserve the right to sell their own products and services directly and indirectly to others without limitation, unless an exclusive deal is agreed to by industry for a period of time as set forth in an Order.

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16. MISCELLANEOUS PROVISIONS
    
    1. Each Party warrants, represents and covenants that it and its representatives and agents will refrain from making any statement or representation to any third party that is inconsistent with the provisions of this Agreement.
    2. Counterparts.  This Agreement may be executed in counterparts, all of which taken together shall constitute one single agreement between the Parties.
    3. Entire Agreement.  This Agreement together with any exhibits attached hereto and Order(s) constitute the entire agreement between the Parties regarding its subject matter and its terms govern all prior proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter.  This Agreement shall not be modified unless done so in a writing signed by authorized representatives of both Parties.
    4. No Waiver.  No failure or delay on the part of either Party in exercising any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or of any other right or remedy.  No provision of this Agreement may be waived except in a writing signed by the Party granting such waiver.
    5. Headings.  The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph or in any way affect such paragraph.
    6. Export Regulations.  End User acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin, including the products and services.  End User will not export or re-export Products without the appropriate United States and foreign government licenses, which shall be solely at End User’s expense. 
    7. Force Majeure.  Except for payment obligations, neither Party shall be liable to the other Party arising out of delays or failures to perform under the Agreement to the extent that any such delays or failures result from any cause beyond the reasonable control of the Party. Matters outside the reasonable control of each Party include severe weather issues, natural or unnatural disasters, war, terrorist activities, or changes in the price of commodities.
    8. No Third Party Beneficiaries.  The provisions of this Agreement are not intended, nor shall be deemed, to confer any benefit on any person or entity other than Zensors and End User.
    9. Severability.  If any provision hereof or any part thereof is declared or adjudged illegal, invalid, or unenforceable under applicable law, such illegality, invalidity, or unenforceability will not vitiate the remainder of this Agreement, and this Agreement will be construed as if such illegal, invalid or unenforceable passages were omitted.
    10. Publicity.  End User grants to Zensors the right to use End User’s name and logo on the Zensors’ web site and in its marketing materials relating to Products during the term of this Agreement.
    11. This Agreement governs the relationship between End User and Zensors.  It contemplates a separate agreement between End User and Zensors’ Partner Reseller.  To the extent that any provision in such agreement is inconsistent with any provision of this Agreement with respect to Zensors or Zensors’ technology or rights and responsibilities, such provision in the agreement between End User and Zensors’ Partner Reseller shall be deemed null and void.
    12. Surviving Provisions.  Provisions of this Agreement that by their usage and context are intended by common application to survive the termination or expiration of this Agreement shall so survive it. 
        

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