Terms of Service
Last updated: May 3, 2019
These Terms of Service (“TOS”) are agreed to as of the date on which the Partner indicates agreement electronically to these Terms of Service (“Effective Date”) and is made by and between Zensors, Inc., a Delaware corporation, (“Zensors”) located at 4620 Henry Street, Pittsburgh, PA 15213 and “Partner.”
WHEREAS, Zensors and Partner wish to set forth the terms and conditions under which Zensors may provide rich analytics Products and Services to assist Partner in making better decisions based on real data as set forth more fully in this Agreement and any Transaction Document;
NOW, THREEFORE, in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Zensors and Partner (individually, each a “Party” and collectively “Parties”) do hereby agree as follows:
1. DEFINITIONS: For purposes of this Agreement, and any appendix, statement of work, or purchase order, or any subsequent Transaction Document between the Parties, each of the following terms shall have the definitions herein agreed upon:
- 1.1. “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).
- 1.2. “Agreement” shall mean these TOS, any documents incorporated by reference, and any Transaction Document[s], whether they exist now or are created or modified in the future.
- 1.3. “Business Day” shall mean each day Monday through Friday, except any day where employees of the State of Delaware or the United States Government are routinely given the day off for purposes of celebrating a national or state holiday including, but not limited to, Fourth of July, Memorial Day, Labor Day.
- 1.4. "Confidential Information" means nonpublic information revealed by or through a Disclosing Party (whether in writing, orally or by any other means) to the Receiving Party including, without limitation, (i) either the fact that discussions or negotiations are taking place concerning a possible transaction between the Parties or any of the terms, conditions or other facts with respect to any such possible transaction, including the status thereof; (ii) information expressly or implicitly marked or disclosed as confidential, including, without limitation, all forms and types of financial, business, scientific, technical, economic, or engineering information including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing; (iii) information traditionally recognized as or that should reasonably be recognized as proprietary trade secrets; (iv) Customer Information (as defined below) subject to exclusions set forth herein; and (v) all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. Confidential Information shall not include Statistical Data or images derived from situations where there is no expectation of privacy.
- 1.5. “Customer” means the consumer or potential consumer of Partner’s product[s] or service[s].
- 1.6. “Customer Information” shall mean Confidential Information, (i) in any form, provided to the Receiving Party by or through a Disclosing Party that uniquely identifies a current, former or prospective Customer of the Disclosing Party; (ii) personally identifying data, including video images and personally identifying information that Partner or Partner Affiliate provides to Zensors; (iii) information concerning Customers or prospective Customers of a Disclosing Party and the affairs and business activities of the Disclosing Party and/or its Customers, including, without limitation, trade secret and proprietary information concerning accounts, financial standing, documents concerning the business and affairs of the Disclosing Party and/or its Customers (including copies and originals and any graphic format or electronic media) whether developed, compiled or otherwise acquired by the Disclosing Party.
- 1.7. “Disclosing Party” shall mean either Party when it provides Confidential Information to the other Party.
- 1.8. “Hardware” means any hardware, including but not limited to cameras and computers, provided by Zensors in connection with this Agreement.
- 1.9. “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.
- 1.10. “Product” shall mean products or services set forth in Transaction Document(s) as issued by Zensors.
- 1.11. “Receiving Party” shall mean the Party that receives Confidential Information from the Disclosing Party.
- 1.12. “Service” shall mean services set forth in Transaction Document(s) as issued by Zensors.
- 1.13. “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-Customer identifiable data or information resulting from Partner’s use of the Product[s] or Service[s].
- 1.14. “Trademarks” shall have its generally understood meaning, and shall include both registered and non-registered trademarks, but shall not include trade dress.
- 1.15. “Third Parties” shall mean any entity other than a Party.
- 1.16. “Transaction Document” shall mean 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.
- 1.17. “Written Notice” shall mean an English language communication delivered in line with the section of this Agreement governing written notice.
2. HARDWARE TERMS
- 2.1 Zensors shall at all times hold exclusive title to the Hardware
- 2.1.1. Under this Agreement, Partner receives a non-exclusive right (unless a Transaction Document specifies otherwise) to use the Hardware as necessary and to provide access to Hardware upon reasonable notice during Partner’s business hours or otherwise at Partner’s convenience. Zensors reserves the right to inspect and service the Hardware. Partner will promptly return all Hardware to Zensors at Zensors’ request or upon termination or expiration of the Agreement.
- 2.1.2. Partner 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.
- 2.1.3. Partner shall maintain the Hardware in good operating condition and shall only locate Hardware in locations identified in Transaction Document[s]. Partner is responsible for any loss or damage that occurs with respect to the Hardware while in the exclusive possession of Partner, excluding ordinary wear and tear or any loss resulting from Zensor’s actions or inactions.
3. TERM AND TERMINATION OF AGREEMENT
- 3.1. TERM. This Agreement shall be in full force and effect as of the Effective Date, and shall continue in full force and effect for one (1) year or until terminated under the provisions of this Agreement, subject to the exclusivity provisions in Section 16 (If Hardcor meets the performance standards set forth in Section 16, the contract will continue uninterrupted for the period set forth in Section 16. If it fails to meet the performance standards in Section 16, the exclusivity provision may terminate but not necessarily the agreement, which may be terminated in accordance with this section.)
- 3.2. AUTOMATIC RENEWAL. This Agreement will automatically renew at the end of each term for a further term of (1) year unless either party gives written notice of its intention not to renew under the same terms and conditions at least thirty (30) days prior to the end of the relevant term.
- 3.3. TERMINATION FOR CAUSE
- 3.3.1. A Party (the “Non-Offending Party”) may terminate this Agreement for cause if the other party (the “Offending Party”) commits a material breach of the contract, under either of the following sections:
- 188.8.131.52. Where such breach is both (a) curable and (b) does not, in Non-Offending Party’s sole discretion, cause damage to the brand, trademark, trade dress, or any other intellectual property right, or interfere with any of Non-Offending Party’s other contractual agreements, even if such damage is curable, Offending Party shall have fifteen Business Days during which they may cure the breach. During such time Non-Offending Party may place such restrictions as are reasonable on Offending Party’s conduct under this Agreement, including, but not limited to, denial of access to deal registration, suspending payments, and such restrictions will be laid out clearly, and plainly, in written notice of Offending Party’s breach. Failure to abide by restrictions shall be grounds for immediate termination by Non-Offending Party.
- 184.108.40.206. Where such breach is either (a) not curable or (b) in Non-Offending Party’s sole discretion, cause damage to the brand, trademark, trade dress, or any other intellectual property right, or interferes with any of Non-Offending Party’s other contractual agreements, even if such damage is curable, then Non-Offending Party may permit fifteen Business Days’ notice to cure under the same terms and conditions as in the preceding paragraph, or provide written notice that the agreement is terminated effective immediately.
- 3.3.2. Regardless of whether Non-Offending Party is proceeding under section 220.127.116.11 or 18.104.22.168, upon notice and until cure the Non-Offending Party shall have no obligation to Offending Party, except for the obligations of confidentiality, good faith, and dispute resolution, and the running of any timeline provided for in this Agreement for Non-Offending Party’s doing of any act or providing of any Service, including payment, is tolled for fifteen Business Days.
- 3.4. TERMINATION FOR CONVENIENCE
- 3.3.1. Either Party may terminate this Agreement for convenience upon ninety calendar days’ written notice to the other Party, provided that such termination does not modify either Party’s obligations under any Transaction Document.
- 3.5. TERMINATION FOR INSOLVENCY
- 3.4.1. If either Party (a) files for bankruptcy, (b) becomes or is declared insolvent, or is the subject of any bona fide proceedings related to its liquidation, administration, provisional liquidation, insolvency or the appointment of a receiver or similar officer for it, (c) passes a resolution for its voluntary liquidation, (d) has a receiver or manager appointed over all or substantially all of its assets, (e) makes an assignment for the benefit of all or substantially all of its creditors, (f) enters into an agreement or arrangement for the composition, extension or readjustment of substantially all of its obligations or any class of such obligations, (g) has any of its publicly traded equities delisted from any stock exchange, or (h) experiences an event analogous to any of the foregoing in any jurisdiction in which any material portion of its assets are situated, then the other Party may terminate this Agreement at any time up to and including 90 calendar days after any event (a)-(h) of this paragraph occurs. Each Party agrees it must provide immediate written notice to the other Party in the event any event (a)-(h) occurs or is reasonably likely to occur, or is expected to be subject to a vote to occur.
- 3.6. TERMINATION CHARGES
- 3.5.1. No Party shall be charged a termination fee unless a termination fee is specifically mentioned in a Transaction Document.
- 3.7. EFFECT OF TERMINATION
- 3.7.1. Expiration or termination of this Agreement shall immediately terminate each party’s right to use the other Party’s Trademarks and discontinue all representations relating to any Agreement; provided, however, that termination of this Agreement shall not terminate any obligation to make payment, which shall continue to be governed by the terms of this Agreement.
- 3.7.2. Upon notice of termination of this Agreement by either Party for convenience, the payment date of all monies due the other Party shall automatically be accelerated so that they shall become due and payable on the effective date of termination, even if longer terms had been provided previously.
- 3.7.3. 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.
- 3.7.4. Zensors shall be entitled to reject all orders received from Partner after notice of termination.
- 3.7.5. 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.
4. TERMINATION ASSISTANCE
- 4.1. Each Party shall provide access to their facilities, as necessary, for the recovery or return of any property of the other Party.
- 4.2. Zensors’s termination assistance shall be as defined in each applicable Transaction Document.
- 5.1. All prices subject to this agreement are exclusive of Taxes. Partner 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 Partner’s purchase of Products or Services, or other performance under this Agreement, provided however, that Partner 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 Partner and Partner agrees to pay such invoice within thirty (30) days of the date of such invoice.
6. NOTICES AND PRIMARY CONTACT
- 6.1. All notices required by this Agreement, or any associated document, shall be deemed sufficient when provided by: (a) hand delivery, to the individual listed in Section 6.2, (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 to the individual listed in Section 6.2, 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.
- 6.2. Each Party shall designate an individual within their entity to serve as the sole recipient of any written notice as required under this Agreement. The designated Party may be changed by providing written notice to the other Party.
- 6.3. Notice shall be deemed effective at 5:00 p.m. New York Time on the first Business Day after (a) receipt of hand delivered documents, (b) the initial date a signature for certified mail is requested by the United States Postal Service regardless of when such signature is provided, (c) the date on which any nationally-recognized overnight courier first attempts delivery. For service by e-mail, (d), receipt is effective at 5:00 p.m. New York Time on the date the e-mail is transmitted, provided that any e-mail sent after 4:00 p.m. Pennsylvania Time shall not be deemed received until 5:00 p.m. New York Time the following Business Day.
7. STATUS OF THE PARTIES
- 7.1. Each Party to this contract 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.
- 7.2. 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.
- 7.3. The Parties explicitly state that they are not joint venturers, partners, principals, joint employers, employer and employee of or with the other.
8. DISPUTE RESOLUTION
- 8.1. In the event of a dispute over this Agreement or the relationship it creates that is not resolved by informal, good-faith discussions, both Parties agree that prior to filing suit they will engage in a confidential dispute resolution with a representative of each Party present that has the legitimate authority to resolve the dispute by exercising rights under any relevant section or to modify or amend this Agreement in writing. A Party intending to so mediate must provide written notice of its intent to the other Party, which shall respond within fourteen (14) calendar days of the receipt of such notice, or the first business day thereafter. Such mediation shall take place in front of a mediator acceptable to both Parties or their counsel, and both Parties may have counsel present during the mediation. Both Parties agree to execute documents in whatever form necessary to ensure that the discussions, offers, negotiation, and any memoranda exchanged during such mediation are not admissible by either Party in the event a dispute proceeds to litigation in a court of competent jurisdiction. The mediation shall take place in Allegheny County, Pennsylvania and the cost of the mediation shall be borne equally by the Parties. In the event that mediation fails and one Party files suit, this clause shall not act as a bar to the other Party filling a counter suit even if their complaints were not a subject of the mediation. If a complaining Party makes a demand for mediation and no response is received within fourteen (14) calendar days, or a mediation is not held within sixty (60) calendar days through no fault of the complaining Party, then this section shall not serve as a bar to commencing litigation. All disputes not resolved via mediation shall be resolved via binding arbitration with the American Arbitration Association, such arbitration to take place in Allegheny County, Pennsylvania. Parties may mutually agree in writing to waive mandatory arbitration.
- 8.2. Any arbitration under this Agreement shall be determined based upon the rules of the American Arbitration Association, except insofar as they are inconsistent with the following terms:
- 8.2.1. The arbitration shall be conducted by a sole arbiter, unless the Parties cannot agree on a neutral arbiter in which case it shall be conducted by three arbiters. Arbitration Panel, as used herein, shall mean a sole arbiter or a panel of three arbiters, as circumstances warrant.
- 8.2.2. The single Arbiter shall be a neutral selected by mutual agreement of the Parties. If the Parties cannot agree on a neutral arbiter, each Party shall submit to the American Arbitration Association a list of five Arbiters from which the other Party shall select one arbiter, but the American Arbitration Association shall not reveal either Party’s list to the other until both are received. The two selected arbiters shall select the third arbiter, which cannot come from either of the lists provided by the Parties, except that if the lists contain any individual who appears on both lists, the two selected arbiters must select a third arbiter that appeared on both lists.
- 8.2.3. At least fourteen calendar days prior to the date of the final hearing, which date shall be determined by the Arbitration Panel with at least thirty days’ advance notice, Zensors shall decide whether the arbitration shall proceed ex aequo et bono or not by submitting such notice to the Arbitration Panel in the manner proscribed by the Arbitration Panel.
- 8.2.4. The Arbitration Panel shall have the authority to create such rules, require such discovery, and set such timelines as they see fit, except that no final hearing shall be set later than the one-year anniversary of the initial filing with the American Arbitration Association without the written consent of both Parties.
- 8.2.5. The Parties may not appeal from a decision of the arbitration panel unless both Parties wish to appeal, in which case the appeal shall be conducted by a new Arbitration Panel being convened pursuant to the terms of this agreement, and provided that such Arbitration Panel is in no way bound by any previous decision of an Arbitration Panel.
- 8.3. The prevailing Party of any suit or arbitration shall be entitled to its reasonable costs, expenses, and attorneys’ fees incurred in such dispute, including any appeal, excepting that no award shall be made to compensate for any in-house counsel. Any court or arbitration panel shall be entitled to make the determination of which Party is the prevailing Party for purposes of this paragraph, but only one Party may be the prevailing Party for purposes of this paragraph. Where permitted by law, and in all cases determined via arbitration, prevailing Party determination shall be made prior to the submission of any costs, bills, or fees that would be required to be paid, but Parties may contest the reasonableness of the costs, bills, or fees as in writing within fourteen days of their submission to the Arbitration Panel.
- 8.4. The governing law of this agreement shall be Pennsylvania Law, without reference to its conflict of Law principles, and Parties expressly waive the application of any United Nations Conventions, except those related to the enforcement of arbitration agreements, where applicable.
9. TRADEMARK OBLIGATIONS
- 9.1. Subject to the terms of this Agreement, Partner hereby grants to Zensors a non-exclusive, non-transferable, limited license to use the Partner Trademarks in accordance with brand guidelines.
- 9.2. Subject to the terms of this Agreement, Zensors hereby grants to Partner a non-exclusive, non-transferable, limited license to use the Zensors Trademarks in accordance with the Brand Guidelines. Zensors reserves the right to update its Brand Guidelines from time to time and make such updates available to Partner at partner’s request.
- 9.3. When Zensors uses Partner’s Trademarks in advertising or in any other manner, it shall clearly indicate Partner as the trademark owner. Zensors shall not directly or indirectly cause an act impairing, contesting or reducing Partner’s right, title, and interest in and to the Partner’s Trademarks during the term of this Agreement or thereafter. Zensors understands and agrees that its use of the Partner Trademarks shall not create any right, title, or interest, in or to the use of the Trademarks, and that all such uses and goodwill associated with the Trademarks will inure solely to the benefit of Partner. Zensors shall take all necessary steps to ensure that its sub-distributors, employees and agents comply with all the terms and conditions regarding Trademarks.
- 9.4. When Partner uses Zensors’ Trademarks in advertising or in any other manner, it shall clearly indicate Zensors’ as the trademark owner. Partner shall not directly or indirectly cause an act impairing, contesting or reducing Zensors’ right, title, and interest in and to the Zensors’ Trademarks during the term of this Agreement or thereafter. Partner understands and agrees that its use of the Zensors’ Trademarks shall not create any right, title, or interest, in or to the use of the Zensors’ Trademarks, and that all such uses and goodwill associated with the Zensors’ Trademarks will inure solely to the benefit of Zensors. Partner shall take all necessary steps to ensure that its sub-distributors, employees and agents comply with all the terms and conditions regarding Zensors’ Trademarks. Partner shall promptly notify Zensors of any unauthorized use of the Zensors’ Trademarks by others immediately as it comes to Partner's attention. Zensors shall have the sole right and discretion to bring infringement or unfair competition proceedings involving the Zensors Trademarks. Partner shall keep a log of the location and manner in which it uses Zensors’s Trademarks, and provide that log to Zensors upon request. Partner agrees not to disparage Zensors, nor its trademarks, staff, products, or business in any manner, including after the termination of this contract. This obligation not to disparage shall survive the termination or expiration of this Agreement.
10. TECHNICAL SUPPORT
- 10.1. Zensors shall provide support and maintenance to Partners in a manner materially consistent with Transaction Document but not less than commercially reasonable.
- 10.2. Zensors’ technical support shall be as outlined in a related Transaction Document.
11. LIMITATIONS OF LIABILITY
- 11.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY LEGAL THEORY OR FORM OF ACTION (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, OR COST OF SUBSTITUTE GOODS) ARISING OUT OF OR RELATED TO THE PRODUCTS OR SERVICES OR THEIR DELIVERY, OR OTHERWISE RELATING TO THE CONTRACT, EVEN IF SUCH PARTY HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE PRODUCT, SERVICES OR OTHERWISE RELATING TO THE CONTRACT, EXCEED THE AMOUNTS PAID BY PARTNER UNDER THIS AGREEMENT.
- 11.2. BECAUSE SOME JURISDICTIONS LIMIT OR DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF WARRANTIES OR LIABILITY MAY NOT PARTIALLY OR ENTIRELY APPLY, TO THE EXTENT THAT ANY SUCH LIMITATION OR EXCLUSION OF LIABILITY OR WARRANTY IS CIRCUMSCRIBED, IT SHALL BE LIMITED TO THE EXTENT POSSIBLE UNDER APPLICABLE LAW. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
- 11.3. Each Party understands and agrees that the limitations of liability in this Agreement for the other Party are reasonable and that neither Party would enter into this Agreement without such limitations.
12. CONFIDENTIAL INFORMATION
- 12.1. Duties of Receiving Party. All Confidential Information disclosed to or known by Receiving Party as a result of its dealings with the Disclosing Party shall remain the property of the Disclosing Party and shall be maintained in confidence by Receiving Party and not disclosed by Receiving Party to any other party, except for Receiving Party’s directors, officers, partners, legal and financial advisors and employees (collectively its “Representatives”) on a “need to know” basis, and provided that those Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. Receiving Party shall not use the Confidential Information for any purpose inconsistent with the intentions of the Parties as stated in the Agreement without the prior written consent of the Disclosing Party. The degree of care required of Receiving Party regarding prevention of disclosure of Confidential Information shall be at least the degree of care Receiving Party uses to protect its own confidential information and trade secrets, but in no case any less than a commercially reasonable standard of care.
- 12.2. Exclusions for Confidential Information. The provisions stated in this Section 12 shall not apply to those aspects of the Confidential Information which: (i) prior to the disclosure thereof by the Disclosing Party to Receiving Party, were in Receiving Party's possession or control or in the public domain; or (ii) subsequent to Effective Date shall have been made available to the general public or the Disclosing Party's competitors by the Disclosing Party or others believed by Receiving Party to have a legal right to do so without obligation to the Disclosing Party.
- 12.3. Intellectual Property. The Receiving Party understands and agrees that the Intellectual Property rights (included but not limited to patents, copyrights, trade secrets, drawings, designs) and/or technical know-how, of the Confidential Information belongs to the Disclosing Party and not to the Receiving Party.
- 12.4. No Warranties. The 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 upon the Confidential Information by the Receiving Party or such other person or entity. THE DISCLOSING PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND TO THE RECEIVING PARTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE.
- 12.5. Right to Disclose. Each Party warrants that it has the right to disclose all Confidential Information that it has disclosed or may hereafter disclose to the other Party pursuant to this Agreement.
- 12.6. No Reverse Engineering. Confidential Information may pertain to existing, prospective, or unannounced products. Receiving Party agrees not to use for its own benefit, for the benefit of a third party, or to the detriment of the Disclosing Party: (i) any Confidential Information to develop or have a third party develop the same, competing, or similar product(s) or (ii) any Confidential Information for the purpose of developing technology solutions based on concepts, functions, or operations like those disclosed in the Confidential Information. Except as expressly permitted under applicable law, Receiving Party shall not copy, decompile, modify, reverse engineer, or create derivative works out of any Confidential Information without the Disclosing Party's written consent. All Confidential Information disclosed to or known by Receiving Party as a result of its dealings with Disclosing Party shall remain the property of Disclosing Party.
- 12.7. Receiving Party agrees that, in the event of any breach by Receiving Party of any of the covenants set forth in this Section 13, the Disclosing Party may have the right to seek immediate entry of an order to restrain or enjoin the breach of said covenants by Receiving Party and otherwise specifically to enforce the provisions of this Agreement in a court of competent jurisdiction, without needing to follow the provisions for mediation or arbitration, except that the court may only grant injunctive relief, and may not award any costs, fees, or damages which values must be addressed through the dispute resolution mechanisms provided elsewhere in this Agreement.
- 12.8. At any time following the termination of this Agreement, the Receiving Party, upon the written request of the Disclosing Party, will surrender to the Disclosing Party all Confidential Information materials provided by the Disclosing Party (including all copies thereof) and all materials which reflect or pertain to the Confidential Information materials including without limitation any and all lists, books, records, designs, formulations, drawings, studies, plans and other representations or summaries, including all copies thereof. Notwithstanding the foregoing, after the termination or expiration of the Agreement, the Receiving Party's legal counsel shall be entitled to retain one (1) copy of the Confidential Information. Notwithstanding the foregoing, Parties shall not be required to remove copies of Confidential Information from backup media where doing so would be commercially impracticable, nor shall either Party be required to remove or delete copies where a retention obligation is imposed upon them by any law or regulation.
- 12.9. A Party may share Confidential Information when such Party is ordered to by a court or governmental authority with proper jurisdiction or otherwise required to be disclosed by Receiving Party by a court of law or other governmental body provided, however, that Disclosing Party is notified (unless prohibited by the applicable process or order) of such order or requirement and given a reasonable opportunity to intervene at its sole cost and expense and the Confidential Information released is only that which, in the written opinion of counsel of Receiving Party’s choice, need be disclosed. In the event of legally compelled disclosure, the Receiving Party ordered to disclose Confidential Information shall take all steps which, in the written opinion of counsel of Receiving Party’s choice, are reasonable under the circumstances in affording the Confidential Information confidential treatment within the context of the legally ordered disclosure, such as a motion to seal or other applicable evidentiary protective order. Notwithstanding any legally compelled disclosure by Receiving Party such compelled disclosure will not otherwise affect Receiving Party’s obligations hereunder with respect to Disclosing Party’s Confidential Information so disclosed.
- 13.1. 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, representatives or agents, and/or end-users (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.
- 13.2. 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.
- 13.3. If Zensor’s Product[s] or Service[s] becomes or, in Zensor’s opinion, is likely to become the subject of an injunction preventing the use of the Product[s] or Service[s] as contemplated herein or in any Transaction Document, Zensor may at its option (i) obtain for Partner the right to continue using the Product[s] or Service[s] as provided for in this Agreement, or (ii) replace or modify the Product[s] or Service[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 Partner and refund to Partner 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 Partner’s exclusive remedy with respect to actual or alleged intellectual property rights by the Product[s] or Service[s], any part thereof or their use and operation.
14. RESERVED RIGHT TO SELL
- 14.1. 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 a Transaction Document.
15. CUSTOMER INFORMATION
- 15.1. Partner shall own all video images where a Customer is clearly identifiable.
- 15.2. Zensors may, but is not required to, retain all video images until or unless the Agreement is terminated for any reason.
- 15.3. Partner hereby provides Zensors a worldwide, royalty-free, exclusive perpetual license to retain and use selected 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 Partner’s and possibly other applications.
16. INTENTIONALLY RESERVED
17. MISCELLANEOUS PROVISIONS
- 17.1. 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.
- 17.2. There are no price controls in this Agreement, and no provision should be interpreted as creating price controls.
- 17.3. Counterparts. This Agreement may be executed in counterparts, all of which taken together shall constitute one single agreement between the Parties.
- 17.4. Entire Agreement. This Agreement together with the exhibits attached hereto and Transaction Document(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.
- 17.5. 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.
- 17.6. 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.
- 17.7. Export Regulations. Partner 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. Partner will not export or re-export Products without the appropriate United States and foreign government licenses, which shall be solely at Partner’s expense.
- 17.8. 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.
- 17.9. 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 Partner.
- 17.10. 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.
- 17.11. Publicity. Partner grants to Zensors the right to use Partner’s name and logo on the Zensors’ web site and in its marketing materials relating to Products during the term of this Agreement.