For purposes of this Agreement, each capitalized term below has the meaning given to it, and a defined term includes its singular and plural forms.
1.1 “Active Status” means the state when the Subscription Service is deployed or otherwise accessible by Customer and its Users at a Site for productive benefit of the Customer or that Site.
1.2 “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
1.3 “Agreement” means, collectively, these Customer Terms, the Order Document(s) entered into by Customer or a Site, the Eolas Master Subscription Agreement (if executed), the Eolas Data Processing Addendum incorporated pursuant to Section 6.3, and any other addenda executed by the parties or expressly incorporated by reference. These Customer Terms are published as the Eolas Customer Terms of Service at eolas.co/terms/customer; every reference in the Agreement to the “Customer Terms” means this document, and the separate Eolas User Terms of Service at eolas.co/terms/user bind individual Users rather than Customer. In plain terms: these Customer Terms and any addenda supply the legal terms; an Order Document supplies the commercial terms for a given order; and the Agreement is all of them together. An Order Document is part of the Agreement and not a separate agreement from it. Any addendum executed by the parties or expressly incorporated by reference forms part of the Agreement without further action, and no schedule, checklist, or election is required for that incorporation to take effect. A reference to a numbered Section that does not name a document means the correspondingly numbered Section of the document in which the reference appears. For clarity, the Eolas Website Terms of Use, including its arbitration and class-action waiver provisions, do not form part of this Agreement and do not govern the Subscription Service; the Eolas Privacy Policy describes Eolas’s handling of personal information across both the eolas.co website and the Services without importing the Website Terms of Use into this Agreement.
1.4 “AI Technology” means the artificial-intelligence and machine-learning models, systems, and tools used by or on behalf of Eolas in connection with the Services, including detection, classification, prediction, and content-generation models, together with associated model weights, parameters, prompts, configurations, and related documentation. AI Technology is part of the Services.
1.5 “Applicable Law” means all federal, state, and local laws, statutes, regulations, rules, ordinances, and other binding legal requirements that apply to a party’s performance under this Agreement, including, where applicable, building codes, housing laws, consumer protection laws, and industry-specific regulations.
1.6 “Billing Party” means the person or entity designated in an Order Document to receive invoices and pay Fees for a Subscription or a Site, which may be Customer, a Site, or a third party. If an Order Document does not designate a Billing Party for a Subscription or a Site, Customer is the Billing Party for it.
1.7 “Breach” means any unauthorized disclosure, access to, or misuse of Protected Data.
1.8 “Claim” means a third-party legal action, suit or proceeding.
1.9 “Client Software” means a software component installed on a Customer’s or Site’s device or premises required for use of the Subscription Service. Client Software is part of the Subscription Service.
1.10 “Committed Subscription Term” means a Subscription Term that an Order Document expressly identifies as committed. A Subscription Term that an Order Document does not expressly identify as committed is not a Committed Subscription Term.
1.11 “Confidential Information” means any material, data, or information, in any form or media, that is proprietary or confidential to a party and is marked as confidential, or not marked but by its nature or treatment by its owner should reasonably be understood or considered to be confidential.
1.12 “Customer Data” means proprietary information and data that a Customer, a Site, or a User inputs into the Subscription Service or Client Software or that is provided to Eolas by or on behalf of a Customer, a Site or a User, whether directly or through a third party, to enable Eolas to provide the Subscription Service. Customer Data includes data captured or generated by Sensors, cameras, or other devices at a Site (including environmental, condition, occupancy, and telemetry readings), audio where enabled by Customer, and detection events, Events, scores, summaries, and other outputs derived from any of the foregoing. For clarity, Public Data is not Customer Data, and any Customer-contributed corrections, updates, or annotations to Public Data (including readily observable property facts) are deemed Public Data. Customer Data also includes content submitted to Eolas by an individual through an upload or submission flow that Eolas presents at Customer’s or a Site’s direction.
1.13 “Deliverable” means work product that Eolas provides or creates with Professional Services and is specified as a “deliverable” in an Order Document, including software programming, application program interfaces, information, documents, reports, technical and non-technical data, specifications and other material, including derivative works. Deliverables do not include third-party products provided with Professional Services.
1.14 “Disclosing Party” means, with respect to certain Confidential Information, the party disclosing Confidential Information to the other party under this Agreement.
1.15 “Documentation” means Eolas’s user manuals, videos, webcasts and other training materials.
1.16 “Event” means an occurrence detected, classified, or surfaced by the Services, including by AI Technology, together with the associated record and any notification of it delivered to Customer or its designated recipients under Section 3.12.
1.17 “Feedback” means any suggestions, enhancement requests, recommendations, or other feedback regarding the Services or Documentation.
1.18 “Feedback Data” means signals provided by or collected from Customer, Sites, or Users regarding outputs of the Services, including confirmations, dismissals, corrections, dispositions, annotations, and labels (for example, confirming or dismissing an alert).
1.19 “Fees” means the setup and subscription fees and other related expenses as specified in the Order Document(s).
1.20 “Hardware” means hardware that Eolas expressly agrees in an Order Document to provide to Customer for use in connection with the Services. Customer procures, owns, and maintains all other equipment used with the Services, including cameras, Sensors, network equipment, and the equipment on which Client Software is installed.
1.21 “Incident” means a record created or managed by Customer or a User in the Services to document, track, or resolve a situation at a Site, which may reference one or more Events.
1.22 “Intellectual Property” means all inventions, patents, copyrights, trademarks, service marks, trade names, trade secrets, know-how, moral rights, licenses, and any other intangible proprietary or property rights, whether registered or otherwise protected under statute or common law.
1.23 “License” means the non-exclusive, non-transferable right to use the licensed products, services or materials for the Customer’s own internal business operations, according to the Documentation, and subject to this Agreement’s restrictions.
1.24 “Occupancy Agreement” means a lease, rental agreement, reservation, residency agreement, license, or other arrangement under which a person occupies, resides in, stays in, or rents space at a Site.
1.25 “Order Document” means an Eolas-provided Order Form for Services entered into by Customer or a Site and accepted by Eolas, the Schedules attached to a Master Subscription Agreement signature form, any Eolas-issued quote, change request, or statement of work, and the record of a Site addition made under Section 2.2 - in each case specifying the Subscription Services, number of Users if applicable, fees, Subscription Term, Professional Services and Deliverables, if any, and other information relating to Customer’s or Site’s order. Eolas accepts an Order Document by countersigning it or by provisioning the Services it describes, whichever occurs first.
1.26 “Permitted Third Parties” means Customer’s Affiliates and third parties acting on Customer’s or such Affiliates’ behalf, including brokers, carriers, third-party administrators, advisors, contractors, and service providers, that are authorized by Customer to access or use the Services, Client Software, Deliverables, or Documentation solely for Customer’s internal business purposes and in accordance with this Agreement, including any applicable role-based permissions or use restrictions. Permitted Third Parties expressly exclude direct competitors of Eolas.
1.27 “Professional Services” means professional consulting services, software configuration and integration services, and other time and materials services. Professional Services do not include the physical installation, mounting, wiring, servicing, or maintenance of any camera, Sensor, microphone, speaker, lock, or other device, which Customer procures and installs.
1.28 “Prohibited Uses” means (a) any export, re-export, transfer, re-transfer, sale, supply, access to, or use of the Client Software, Subscription Service, or Professional Services to or in a country other than the country to which the Client Software was originally shipped or in which the Services were originally provided, or to, by, or for a different end user or end use, in each case where such activity may require a license or other authorization under U.S. or other applicable export control laws; or (b) any direct or indirect export, re-export, transfer, re-transfer, sale, supply, access to, or use of the Client Software, Subscription Service, or Professional Services to, in, by, or for any country, person, or end use that is sanctioned, embargoed, or otherwise prohibited under U.S. or other applicable export control or sanctions laws.
1.29 “Protected Data” means the Customer Confidential Information and Personal Information within the Customer Data. “Personal Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked with a particular individual or household; provided that Personal Information does not include publicly available information or information that has been deidentified or aggregated in accordance with Applicable Privacy Laws (as defined in the Data Processing Addendum). “Personal Information” has the same meaning when used in the Data Processing Addendum.
1.30 “Public Data” means any data or data sets concerning property attributes that (a) originate from, are made publicly available by, or are otherwise derived from, a governmental authority (whether obtained directly or indirectly through intermediaries), or (b) consist of facts about a property that are publicly available from open sources or readily observable from public rights-of-way or common areas. For clarity, (i) Public Data is not Customer Data, and any Customer-contributed corrections, updates, or annotations to Public Data (including readily observable property facts) are deemed Public Data and (ii) Public Data excludes any confidential or non-public data of Customer that is not otherwise publicly available or readily observable.
1.31 “Receiving Party” means, with respect to certain Confidential Information, the party receiving such Confidential Information from the other party under this Agreement.
1.32 “Retrieval Period” means the thirty (30) days following the termination or expiration of a Subscription Service for a Site, the effective date of a change of Customer of Record for a Site under Section 2.3(g), or a grant under Section 2.3(f), during which Eolas maintains the Customer Data for that Site then held in the Eolas-hosted portions of the Subscription Service and provides read-only access sufficient to export it, as provided in Section 9.3(i).
1.33 “Sensors” means sensors or monitoring devices that may be installed in common areas of managed properties and, in some cases, within individual units or spaces (e.g., water leak detectors, temperature monitors). Sensors do not include fire, smoke, heat, or carbon monoxide detection devices, and the Services do not detect fire, smoke, heat, or carbon monoxide. Audio-capable devices, including microphones and voice-announcement devices, are provided for common areas only. Section 6.5 states where such devices may not be deployed. Except where a provision expressly limits itself to environmental, temperature, humidity, water, or similar devices, every reference in this Agreement to Sensors, including in each of Customer’s obligations, responsibilities, restrictions, and indemnities, includes cameras, microphones, speakers, intercoms, and other devices deployed at or interfacing with a Site in connection with the Services.
1.34 “Service” means the services identified in the Order Document(s), as Eolas may modify the services from time to time in Eolas’s discretion, including any associated Client Software provided by Eolas to Customer, together with any modifications, revisions, upgrades, language versions and enhancements of the foregoing, as well as any support services, if any. References in this Agreement to the “Services” mean, collectively, the Service, the Subscription Service, Client Software, Deliverables, Professional Services, and any other services, features, or functionality Eolas makes available under the Agreement, and Section 10 applies to all of them.
1.35 “Service Warranty” means the standard that the Professional Services will be performed in a good and workmanlike manner and in accordance with generally accepted industry standards.
1.36 “Site” means any real estate property owned by Customer or managed by Customer or any Affiliate of Customer that is specified by Customer to Eolas either in an Order Document or otherwise in writing, including via email, as a recipient of the Services under this Agreement. Obligations expressed in this Agreement as obligations of a Site are obligations of Customer with respect to the applicable property. The legal entity that owns or manages a property is bound by those obligations only where that entity has agreed to them, whether by executing an Order Document or other writing or through Customer acting as its agent with actual authority; and where it has so agreed, Customer and that entity are jointly and severally liable for them. Where this Agreement refers to a Site entering into an Order Document, being designated as a Billing Party, receiving or being entitled to any right, benefit, indemnity, or defense, granting or waiving anything, having personnel or Affiliates, or otherwise acting or being referred to in a capacity that only a person or entity can hold, that reference is to the legal entity that owns or manages the applicable property, and that entity acts, receives, or is bound only where it has agreed as described above. References to a Site as a location, as a recipient of the Services, or as the place at which the Services are provided are to the property.
1.37 “Site Occupant” means an individual who occupies, resides in, stays in, or rents space at a Site under an Occupancy Agreement, and includes a resident, tenant, guest, or lodger.
1.38 “Subscription” means a non-exclusive, non-transferable right for Customer and each Site to use the Subscription Service for their own business operations and to extend use to Users affiliated with Customer or each Site.
1.39 “Subscription Service” means a Service, and associated Documentation (if any), made available to Customer by Eolas by Subscription as specified in an Order Document.
1.40 “Subscription Term” means a period specified in an Order Document beginning on the date the Subscription Service ordered reaches Active Status at the applicable Site, and each subsequent Subscription Term automatically renewed under the Agreement, during which Eolas will provide the Subscription Service.
1.41 “Support Policies” means Eolas’s current support policies and procedures for Subscription Service as revised from time to time.
1.42 “Usage Data” means technical and operational data generated by or collected from the Services, Client Software, Hardware, or Customer-Provided Equipment (as defined in Section 6.7), including telemetry, device-health data, logs, configurations, performance and reliability metrics, and detection-event metadata (such as timestamps, event types, and confidence scores). Usage Data does not include the content of Customer Data except in aggregated, deidentified, or anonymized form as described in Section 6.2.
1.43 “User” means a person authorized to utilize the Subscription Service concurrently with others as an employee, customer or Affiliate of Customer or a Site.
2.1 Orders. Customer may place a binding order, subject to Eolas’s acceptance, by sending Eolas a signed Order Document, for Subscription Service and, if applicable, for Professional Services.
2.2 Site Additions; Execution of Orders. Customer can, at any time, add Sites to Customer’s Subscription by executing new or additional Order Documents in accordance with Section 2.1 above. Customer may also add Sites by informing the Eolas help team via email or chat of the Sites to be added, or through the Services where Eolas makes that function available, and immediately thereafter such Sites will be governed by the terms and conditions of the Agreement and the applicable Order Documents. The record of each such addition is an Order Document for the added Site. Customer adds a Site for itself and, where and to the extent it has actual authority to do so, as agent for the legal entity that owns or manages the added property. Customer represents and warrants, on each addition, either that it has that actual authority and has made the entity aware of the Agreement, or that it accepts the obligations of the Agreement with respect to that property as its own. Customer is responsible for performance of all Site obligations and is jointly and severally liable with any entity that has agreed to be bound. Where a Master Subscription Agreement is in effect, Section 4 of that form governs the method of addition, the persons authorized to make it, and the applicable pricing. Customer may also remove Sites from coverage under the Agreement by notifying Eolas in writing, subject to any applicable Subscription Term commitments.
2.3 Customer of Record; Shared Site Access.
(a) Customer of Record. Each Site is enrolled under a single Order Document, and the Customer under that Order Document is the “Customer of Record” for that Site. The Customer of Record’s agreement with Eolas governs the Subscription for that Site, including Fees, the Subscription Term, service levels, the data-governance, retention, and configuration settings that apply to it, and the disposition of Customer Data on termination. A Site is enrolled under only one Order Document at a time. Where an Order Document is executed by a person other than the Customer under the Master Subscription Agreement to which it relates, that person is the Customer of Record for the Sites it covers and is bound by that Agreement with respect to those Sites.
(b) Granting and Revoking Access. The Customer of Record may grant another organization access to a Site through the Services and may revoke that access at any time. As between Customer and any other organization, only the Customer of Record may grant or revoke access to a Site. This Section 2.3(b) is subject to Eolas’s rights to suspend or revoke access under Sections 3.9, 5.3, and 9.2, and nothing in this Section 2.3(b) limits those rights. An organization accepts the terms applicable to it under Section 2.3(c) by accessing or using the Services with respect to that Site.
(c) Terms Applicable to an Organization with Access. Where an organization granted access under Section 2.3(b) has its own agreement with Eolas then in effect, that organization’s conduct with respect to the Site, and Eolas’s obligations to that organization, are governed by that organization’s own agreement. Where it does not, that organization is deemed a Permitted Third Party for purposes of Sections 1.26 and 3.9 notwithstanding that it does not act on Customer’s behalf, and the Customer of Record is responsible for its acts and omissions as provided in that Section. In either case, the organization is not a party to the Customer of Record’s Agreement, is not a third-party beneficiary of it, acquires no rights under it, and may not enforce it.
(d) Obligations That Remain with the Customer of Record. Regardless of which organization operates a property, the Customer of Record remains responsible, with respect to its Sites, for the obligations in Sections 3.11 through 3.14, 6.5, and 6.6, including notices, consents, signage, device placement, and lawful deployment and use of the Services, and remains liable for all Fees for those Sites.
(e) Settings. Where more than one organization has access to a Site, the data-governance, retention, and configuration settings applicable to that Site are those established under the Customer of Record’s agreement, and no other organization’s agreement with Eolas alters them.
(f) End of Access. An organization’s access to a Site ends upon revocation by the Customer of Record, upon termination or expiration of the Subscription for that Site, upon termination of that organization’s own agreement with Eolas, or, in the case of a departing Customer of Record, upon the effective date of a change under Section 2.3(g). An organization whose access ends is not entitled to export, retain, or receive a copy of Customer Data for that Site, except that a departing Customer of Record has the rights stated in Sections 2.3(g) and 9.3(i), and except that the Customer of Record may, at or after the end of an organization’s access, grant that organization the election in Section 9.3(i)(A) as to the Customer Data for that Site created during that organization’s period of access, in which case that organization makes the election, pays the applicable fee, and is the Controller (as defined in the Data Processing Addendum) of the Customer Data retained under that election as though it were a departing Customer of Record. An organization that makes that election accepts these Customer Terms and the Data Processing Addendum as to the Customer Data retained under that election by making it; its Retrieval Period begins on the date of the grant; the Customer Data retained is a copy of the Customer Data for that Site created during its period of access, fixed as of the end of that access; and it is the Billing Party for the Data Retention Add-on fees for that Site at Eolas’s then current per-Site rate. Section 9.3 governs the disposition of Customer Data and operates in favor of the Customer of Record.
(g) Change of Customer of Record. A change in the ownership of a property that Customer continues to manage is not a change of Customer of Record and does not affect the Subscription for that Site. Customer will notify Eolas in writing of such a change within thirty (30) days after it takes effect, identifying the new owner (where a Master Subscription Agreement is in effect, by updating the Site register under Schedule B of that form), and makes the representation and warranty in Section 2.2 as to the new owner on giving that notice. A Site may be moved from one Customer of Record to another only by a new Order Document entered into by the receiving Customer together with the release of the departing Customer of Record; an Order Document entered into by the legal entity that owns a property that Customer manages is such a change and requires Customer’s release. A release may be given in writing or through the Services by a User Customer has authorized to enroll and remove Sites, using the additional authentication the Services require for it, and in it the departing Customer of Record may specify what passes to the receiving Customer of Record, direct an export under Section 6.8.2, and make the election under Section 9.3(i)(A); the record the Services keep of the release is the release. On the effective date of the change, the Site identity, device registrations, Client Software, and Site configuration pass to the receiving Customer of Record except as the release provides otherwise, and the receiving Customer of Record’s Subscription for that Site begins without Customer Data. Customer Data stored solely on Client Software or Customer-Provided Equipment at the property is outside the transfer and remains subject to Section 6.9.2; the departing Customer of Record is responsible for exporting or clearing it before its release takes effect, and Eolas will clear Client Software local storage at the property on the departing Customer of Record’s request. The departing Customer of Record’s access to the Site ends on the effective date of the change, and any continuing access is granted by the receiving Customer of Record under Section 2.3(b). Customer Data created while the departing Customer of Record was the Customer of Record remains the departing Customer of Record’s, is not made available to the receiving Customer of Record except to the extent the departing Customer of Record directs under Section 6.8.2, and is subject to Section 9.3(i) as though the departing Customer of Record’s Subscription for that Site had terminated on the effective date of the change. Unless Eolas agrees otherwise in writing, the departing Customer of Record remains liable for any unexpired Subscription Term commitment for that Site, except that it is released from that commitment on the effective date of the change to the extent the receiving Customer of Record has assumed a Subscription for that Site with a remaining commitment at least equal to it, and otherwise remains liable only for the difference, and a new Subscription Term begins for the receiving Customer on the effective date of the change, on which date the Site is deemed to reach Active Status for the receiving Customer.
3.1 Subscription. Eolas will provide Subscription Service to Customer, Sites or Permitted Third Parties according to the Order Document during the Subscription Term. Customer, Sites and each Permitted Third Party will use the Subscription Services in accordance with the Documentation. During the Subscription Term the Subscription Service includes, at no additional charge, the updates, upgrades, bug fixes, and enhancements that Eolas makes generally available to subscribers of the Subscription Services Customer has purchased at the tier Customer has purchased. A Subscription does not include a different Service, a different tier of a Service, or any module, add-on, or feature that Eolas offers as a separately priced item, each of which requires an Order Document. Eolas may enhance, modify, or update the Subscription Service from time to time in its discretion; provided, however, that Eolas will not materially decrease the core functionality of the Subscription Service during the applicable Subscription Term. Eolas warrants that the Subscription Service will perform materially in accordance with the Documentation during the Subscription Term. This warranty does not cover, and Eolas does not warrant, the accuracy, completeness, or timeliness of any detection, classification, score, summary, or other output of AI Technology, which Sections 3.6, 3.7, 6.6, and 10.2 govern, or any non-conformity caused by (i) use of the Subscription Service other than in accordance with the Documentation, (ii) Customer’s or a Site’s hardware, software, networks, systems, or Customer-Provided Equipment, or (iii) modification, misuse, or the acts or omissions of any person other than Eolas. Customer must report a non-conformity to Eolas in writing within thirty (30) days after becoming aware of it, and Section 10.3 states Eolas’s entire liability and Customer’s exclusive remedy for it.
3.2 License. If the Subscription Service requires Client Software or an Order Document specifies Deliverables, Eolas grants to Customer and each Site, subject to Customer’s, each Site’s, and their respective Users’ compliance with this Agreement, a revocable limited License to the Client Software and such Deliverables, for the Subscription Term.
3.3 Restrictions. Customer, Sites and Permitted Third Parties will not, and will not permit others to, in each case with respect to the Services, Client Software, Documentation or Deliverables:
(a) rent, lease, sublicense or otherwise exploit them for hosting as an application service provider;
(b) transfer, export or use them in connection with properties located outside the fifty (50) states of the United States and the District of Columbia (incidental remote access by authorized Users traveling internationally does not violate this subsection);
(c) use them except as specified in the Order Document;
(d) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code, except as Applicable Law permits after Customer has disclosed its intended activities in writing to Eolas;
(e) remove, obscure or alter any copyright, trademark or other intellectual property or proprietary rights notice on, contained in, or affixed to them;
(f) infringe or misappropriate Eolas’s or its licensors’ Intellectual Property;
(g) copy, reproduce, modify, create derivative works of, frame, or mirror them, except as this Agreement expressly permits;
(h) access the Services to build, develop, train, or improve a product or service competitive with the Services; access, copy, extract, transfer, or disclose Client Software or AI Technology (including model weights or parameters), whether stored on Customer-Provided Equipment or elsewhere, except as necessary to use the Subscription Service as this Agreement permits; use any AI Technology or any output of the Services to develop, train, fine-tune, or improve any machine-learning model or artificial-intelligence system; or copy any features, functions, user interface, or graphics of the Services;
(i) use the Services to transmit spam or other unsolicited messages, or to store or transmit infringing, libelous, unlawful, or tortious material, or material in violation of third-party privacy or publicity rights;
(j) introduce viruses, worms, Trojan horses, or other harmful code into the Services, or interfere with or disrupt the integrity or performance of the Services or the data contained therein; or
(k) use any output of the Services - including Events, classifications and associated metadata, exports, API responses, webhook payloads, information supplied to or through an Integration, and information derived from any of the foregoing - (i) as a factor in evaluating any applicant for, or prospective party to, an Occupancy Agreement, employment, credit, or insurance; or (ii) where the output is disclosed to or used by any person other than Customer and the Site at which it was captured, as a factor in determining any individual’s eligibility for housing, tenancy, credit, insurance, or employment.
Subsection (k) applies however the information is obtained, exported, or transmitted, and Customer will not permit any Site, User, Permitted Third Party, or other system or person to use information originating from the Services for any purpose subsection (k) prohibits, including by transmitting it to a third-party system. Eolas is not a consumer reporting agency, the Services do not constitute a consumer report or consumer reporting service, and the Services are not intended or authorized for use, in whole or in part, as a factor in establishing an individual’s eligibility for credit, insurance, employment, housing, or tenancy. Subsection (k) does not restrict Customer’s use of the Services at a Site in the ordinary operation of that property, including security, safety, incident response, determining whether a person is authorized to be present, investigating or documenting an incident, and enforcing property rules and the terms of an Occupancy Agreement. Where Customer decides whether to continue, amend, renew, or terminate an Occupancy Agreement with a person who is then an occupant of that Site, Customer may use output of the Services as evidence of a specific incident, and will not use any score, risk rating, aggregate classification, or predictive output as a factor in that decision. Customer will base any such decision on its own documented determination about the underlying incident, and not on the classification the Services applied to it. A person who is then an occupant of a Site is not an applicant or prospective party for purposes of subsection (k)(i) as to that Site. The same applies where Customer or a Site decides to discipline, or to end the engagement of, a person then working at that Site, whether employed by Customer, the Site, or a contractor: Customer may use output of the Services as evidence of a specific incident, will not use any score, risk rating, aggregate classification, or predictive output as a factor in that decision, and may share that output with the person’s employer for that purpose, which is not a disclosure to another person for purposes of subsection (k)(ii). Eolas will not furnish output of the Services bearing on an identified or identifiable individual to any third party for use as a factor in a determination of that individual’s eligibility for housing, tenancy, credit, insurance, or employment, and will not sell or license such output for that purpose. This does not restrict Eolas’s use, sale, or licensing of property-level information that does not identify, and is not reasonably linkable to, any individual, including aggregated property risk, hazard, condition, and claims-related information. Where Customer permits a third party to access or use Client Software or Deliverables under Section 3.9, Customer will ensure that third party and its personnel comply with this Agreement and is liable for all their acts and omissions.
3.4 License Termination. Eolas may terminate a License by written notice immediately if Customer or any Site breaches the provisions of Sections 3.2 or 3.3. Upon termination, Customer must immediately terminate use of all Services, Client Software, Documentation and Deliverables, and, upon Eolas’s request provide written certification of the same.
3.5 Support. Provided that Customer complies with its obligations under the Support Policies, Eolas will provide online and telephone support service for the Subscription Service during the Subscription Term in accordance with the Support Policies.
3.6 Responsibility for Results. Customer is solely responsible for results obtained from the use of the Subscription Service and for conclusions drawn from such use.
3.7 No Emergency Services. Eolas provides technology to assist with risk management and incident detection. Eolas does not provide direct emergency response services or contact emergency authorities on behalf of Customer. EOLAS MAKES NO REPRESENTATION OR WARRANTY THAT ITS TECHNOLOGY OR THE SERVICES WILL CONTACT, REACH, OR SUCCESSFULLY COMMUNICATE WITH ANY EMERGENCY SERVICE PROVIDER OR PUBLIC SAFETY AUTHORITY. Customer acknowledges and agrees that it is solely responsible for contacting appropriate emergency services in an actual or suspected emergency. EOLAS DOES NOT GUARANTEE THAT EMERGENCY SERVICES WILL BE AVAILABLE, RESPONSIVE, OR CAPABLE OF RESOLVING ANY INCIDENT, EVEN IF NOTIFIED. Where an Order Document includes remote monitoring services, the Eolas Remote Monitoring Addendum applies: video security signals, and requests a User submits through the Services asking that the licensed monitoring provider identified under that addendum (the “Monitoring Provider”) respond, may be transmitted to the Monitoring Provider, which attempts verification and notification of responsible authorities or designated contacts as described in that addendum, and all such services remain non-guaranteed and subject to the disclaimers in this Agreement.
3.8 Non-Eolas Offerings. The Service may incorporate or rely on data, content, or services provided by third parties or otherwise not provided by Eolas, including property attribute, weather, crime, insurance, and other external data sources. Eolas does not warrant the accuracy, completeness, or timeliness of any of it, and has no liability for errors, omissions, or delays in it or for any action Customer takes or does not take in reliance on it. Certain third-party data is subject to supplier terms Eolas passes through to Customer, and Customer will comply with those terms as made available through the Documentation or the Services. Customer will not extract, redistribute, resell, sublicense, or create derivative data products from third-party data except as expressly permitted. Eolas may add, change, suspend, or discontinue any third-party data source at any time, including where a supplier ceases to make it available. Where a third-party data source, model, or other component licensed to Eolas becomes unavailable, is repriced, or ceases to be licensable to Eolas on commercially reasonable terms, Eolas may substitute a materially equivalent component or discontinue the affected feature, and that substitution or discontinuation is not a breach of this Agreement or of Section 3.1. Where a discontinuation materially degrades a feature Customer is then paying for and Eolas does not provide a materially equivalent replacement within thirty (30) days, Customer may terminate the affected Service on notice and Eolas will refund prepaid fees for the unexpired portion of the then-current Subscription Term for that Service.
Weather, flood, and hazard information made available through the Services may originate from or be derived from the National Weather Service, the National Oceanic and Atmospheric Administration, the Federal Emergency Management Agency, and commercial data providers. Eolas is not affiliated with, endorsed by, or acting on behalf of any government agency. Information presented through the Services is informational only and may be filtered, geographically matched to a property, delayed, or otherwise modified relative to the source, and the issuing authority may issue, update, or cancel a watch, warning, or advisory after Eolas has delivered it. Official watches, warnings, and advisories issued by the National Weather Service or by local emergency management authorities control, and Customer should consult and follow them.
Without limiting Section 3.3, Customer will not use, and will not permit any Site or User to use, flood zone, hazard, catastrophe, or other property-risk output of the Services:
(i) to make or support a flood hazard determination under the National Flood Insurance Act or any lender’s flood insurance requirement, or as a substitute for a Standard Flood Hazard Determination Form or an elevation certificate;
(ii) to underwrite, rate, place, bind, or deny insurance, or to determine whether insurance is required;
(iii) to appraise or value real property for lending purposes; or
(iv) to satisfy any statutory or contractual property-condition or hazard-disclosure obligation owed to a purchaser, Site Occupant, lender, or other party.
Customer will not represent to any insurer, lender, or public authority that the Services are code compliant, are listed or certified by any testing laboratory, perform any life safety function, or constitute a flood, hazard, or other regulated determination, and Eolas makes no such representation. Customer may accurately describe the Services and the features it has enabled. No insurer, lender, or public authority is an intended or third-party beneficiary of this Agreement.
3.9 Third Party Access. Customer may allow Permitted Third Parties to access and use the Services, Client Software, Deliverables, and Documentation solely for Customer’s internal business purposes and solely in accordance with this Agreement, including any applicable use restrictions and role-based permissions configured by Customer. Customer will ensure that all Permitted Third Parties comply with this Agreement and any applicable use guidelines provided by Eolas, and Customer will remain fully responsible for all acts and omissions of Permitted Third Parties as if they were Customer’s own acts or omissions, including any that would constitute a breach of this Agreement or misuse of the Services. Permitted Third Parties will not:
(a) be granted access to the Services if they are direct competitors of Eolas;
(b) access the Services to build, train, or improve a product or service that competes with the Services; or
(c) share, reuse, sublicense, or otherwise transfer login credentials or access rights. Eolas may monitor access by Permitted Third Parties and may suspend or revoke such access in its reasonable discretion to protect the security or integrity of the Services, data, or user environment.
3.10 Beta and Pilot Features. Eolas may make pre-release, beta, pilot, or evaluation features or services (“Beta Features”) available to Customer, including by enabling them for Customer’s account with notice (including in-product notice). Customer may opt out of, or disable, any Beta Feature at any time through the Services or by written notice to Eolas. Beta Features are provided “AS IS” for evaluation purposes, are excluded from any support or service-level commitments, may be modified, suspended, or discontinued by Eolas at any time, and may be subject to additional terms presented at enablement. To the maximum extent permitted by Applicable Law, Eolas will have no liability arising out of or in connection with the performance or non-performance of any Beta Feature; this sentence does not limit Eolas’s obligations or liability under Sections 6.4 or 12 or under the Data Processing Addendum. Customer Data processed by a Beta Feature remains subject to Sections 6.1 through 6.4 and, where applicable, the Data Processing Addendum, and Sections 3.6, 3.7, 6.6, 10, and 3.11 through 3.14 apply to Beta Features.
3.11 Asset Protection; Not a Life Safety System. The Services are asset-protection and risk-management technology. THE SERVICES ARE NOT A LIFE SAFETY SYSTEM AND ARE NOT DESIGNED, INTENDED, TESTED, LISTED, CERTIFIED, OR WARRANTED TO FUNCTION AS A FIRE ALARM SYSTEM, A FIRE DETECTION OR SUPPRESSION SYSTEM, A SMOKE OR HEAT DETECTION SYSTEM, A CARBON MONOXIDE OR GAS DETECTION SYSTEM, A MEDICAL ALERT OR PERSONAL EMERGENCY RESPONSE SYSTEM, OR ANY OTHER LIFE SAFETY SYSTEM. Customer will not use, and will not permit any Site or User to use, the Services as a fire alarm, fire or smoke detection, heat detection, carbon monoxide or gas detection, sprinkler supervisory, medical alert, or personal emergency response system, or as any other life safety or code-required system. Customer’s compliance with the preceding sentence is a restriction on use of the Services for purposes of Sections 3.3 and 3.4. The Services are not listed or certified by Underwriters Laboratories or any similar organization, are not designed or installed to comply with NFPA 72 or any other life safety or building code, standard, or requirement of an authority having jurisdiction, and do not satisfy, replace, supplement, or reduce any requirement for a fire alarm, smoke detection, carbon monoxide detection, sprinkler, or other life safety or code-required system. Temperature, humidity, water, and similar environmental Sensors are provided to assist Customer in identifying conditions that may result in property damage, such as freezing, equipment malfunction, or water intrusion, and are not fire, smoke, heat, or carbon monoxide detection devices. Customer will not represent, and will not permit any Site or User to represent, that the Services perform any life safety function, and Customer remains solely responsible for procuring, installing, maintaining, monitoring, and testing all life safety and code-required systems at each Site, and will not reduce, defer, or discontinue any of them, or reduce any staffing, inspection, or procedure relating to any of them, on account of the Services. Temperature Sensors report ambient temperature against thresholds Customer configures. They are not fixed-temperature or rate-of-rise heat detectors, are not listed under UL 521 or any comparable standard, and are not designed or calibrated to detect a fire or combustion condition. Customer will not configure, describe, or rely on any temperature threshold as indicating a fire or combustion condition, and will not install a temperature Sensor in lieu of, or credited against, any device required by any code, standard, insurer, or authority having jurisdiction. Section 3.14 describes an optional feature that recognizes the sound of a third-party alarm that has already activated; that feature does not detect fire, smoke, heat, or carbon monoxide and does not qualify anything in this Section 3.11. Section 10.2 also applies to this Section 3.11.
3.12 Events; Customer Response Procedures. The Services may generate Events and deliver them through the Services or by email, push notification, text message, or other means Customer configures. Events are delivered to Customer and its designated recipients. Eolas does not monitor Events for the purpose of responding to them, does not review or act on Events on Customer’s behalf, and does not verify, escalate, notify, or dispatch in response to any Event. Eolas’s development and tuning of detection models and thresholds under Sections 6.1 and 6.6 is not monitoring for this purpose. Where an Order Document includes remote monitoring services, the video security event types identified in that Order Document and, where Customer enables the feature, any request a User submits through the Services asking that the Monitoring Provider respond (a “Monitoring Request”), are also transmitted at Customer’s direction to the Monitoring Provider, which, and not Eolas, attempts verification and notification as described in the Remote Monitoring Addendum. No other Event type is transmitted to that provider, and enabling an additional event type in the Services does not place it within remote monitoring services. Customer is solely responsible for:
(a) establishing, documenting, maintaining, and following its own standard operating procedures for reviewing and responding to Events, including designating and training responsible personnel and providing appropriate coverage outside of business hours;
(b) maintaining accurate and current recipient names, telephone numbers, email addresses, escalation sequences, and device and notification settings in the Services, and promptly updating them;
(c) determining whether and how to respond to any Event and for all resulting decisions, actions, and omissions; and
(d) obtaining any consents required for delivery of Events by text message or automated telephone call. EOLAS DOES NOT WARRANT THAT EVENTS OR NOTIFICATIONS OF THEM WILL BE GENERATED, DELIVERED, TIMELY, RECEIVED, OR ACTED UPON. Generation and delivery of Events depend on conditions outside Eolas’s control, including Sensor placement, condition, power, and battery status; equipment at the Site; internet, cellular, carrier, and network availability; recipient device configuration and settings; and third-party messaging providers. The absence of an Event is not a representation that no event, condition, or hazard exists. Sections 3.6, 3.7, 3.11, 10.1, and 10.2 apply to Events.
3.13 Interventions; Integrations; Prohibited Automation. (a) Interventions. Certain Services may permit Customer and its Users to initiate responses at a Site such as activating lights or other visual deterrent devices or delivering live or recorded voice announcements to persons present (“Interventions”). Eolas provides the technical means for Interventions and does not itself initiate, script, supervise, or perform them except as expressly stated in an Order Document. Customer is solely responsible for the decision to initiate an Intervention and for its content, timing, manner, and consequences, including any escalation, confrontation, injury, property damage, or claim of harassment, discrimination, retaliation, or unfair or deceptive practice arising from it, and for applying Interventions consistently and in compliance with Applicable Law (including, where applicable, fair housing, tenant protection, and other anti-discrimination laws). Customer’s indemnity in Section 6.5 applies to claims arising from an Intervention. Voice Interventions are available in common areas only. An announcement is transmitted outbound and does not itself require audio capture. Where Customer separately enables audio capture or recording, Section 6.5 applies and Customer is responsible for all notice, consent, signage, and recording-law compliance, including in jurisdictions that require the consent of every party to a communication and in jurisdictions that prohibit undisclosed recording regardless of the location or expectation of privacy. (b) Integrations. Eolas may make application programming interfaces, webhooks, and similar interfaces available so that Customer may exchange data between the Services and other systems (“Integrations”). Customer is the integrator of record for each Integration that Customer, or a third party acting at Customer’s direction, builds or configures against an Integration interface, and for each such Integration is solely responsible for the design, testing, security, and operation of the receiving system and for all actions that system takes or fails to take. This paragraph does not apply to integrations that Eolas itself builds and offers as part of the Subscription Service, which are limited to read-only and record-creation connectors to property management, accounting, ticketing, communication, and workforce systems. Other than the Intervention features described in Section 3.13(a), Eolas does not build, offer, or support any integration that actuates, controls, or changes the state of any physical device or system, and any such integration is Customer’s Integration for which Customer is the integrator of record. Eolas may impose and change reasonable rate limits, authentication requirements, and technical specifications, may version an interface, and may deprecate or remove a generally available interface on at least twelve (12) months’ notice except where a shorter period is required to address a security or legal risk, and may suspend an Integration to protect the security, integrity, or availability of the Services. Eolas does not warrant the latency, ordering, completeness, or delivery of events or Events made available through any Integration, and no Integration may be relied upon for any time-critical or safety-related function. (c) Prohibited Automation. Customer will not use, and will not permit any Site, User, Permitted Third Party, or Integration to use, the Services, Events, or any output of the Services to control, actuate, arm, disarm, bypass, delay, disable, or otherwise affect: (i) any fire alarm, fire detection, fire suppression, sprinkler, standpipe, smoke control, smoke or heat detection, or carbon monoxide or gas detection system; (ii) any life safety, medical, or personal emergency response system; (iii) any door, lock, gate, barrier, or egress path in a manner that could impede or delay egress or violate any life safety or building code; or (iv) any other device or system where failure, delay, or error could result in death, personal injury, or serious property damage. The prohibitions in clauses (i) through (iii) are absolute. With respect to clause (iv) only, an automated action is permitted where a qualified individual reviews and authorizes that specific action after the Event and before the action is executed; a standing, blanket, or advance authorization of a class or category of actions does not satisfy this requirement. Subject to clause (iii), Customer will not configure automated actuation of any water, gas, or fluid shutoff valve, or of any lock, gate, barrier, or access-control system in either direction, without such per-action authorization. Sections 3.6, 3.7, 3.11, and 10.2 apply to Interventions and Integrations.
3.14 Alarm Sound Recognition.
(a) What it is. Where Customer enables it, the Services may analyze audio captured in common areas to recognize the acoustic signature of a smoke alarm, carbon monoxide alarm, or similar audible alarm device that has already activated, and generate an Event notifying Customer’s designated recipients that such a sound was detected (“Alarm Sound Recognition”).
(b) What it is not. ALARM SOUND RECOGNITION DOES NOT DETECT FIRE, SMOKE, HEAT, OR CARBON MONOXIDE. It recognizes a sound produced by a separate device that Customer procures, installs, maintains, and tests. It is not a fire alarm system, fire detection system, smoke or heat detection system, carbon monoxide detection system, or life safety system; it is not listed or certified by Underwriters Laboratories or any similar organization; it does not comply with NFPA 72 or any other life safety or building code; and it does not satisfy, replace, supplement, or reduce any requirement for a code-required system. Section 3.11 applies in full.
(c) Customer obligations. Customer remains solely responsible for procuring, installing, maintaining, monitoring, and testing all life safety and code-required systems at each Site, and will not reduce, defer, or discontinue any of them, or represent to any person that Alarm Sound Recognition performs a life safety function.
(d) Limitations. Recognition depends on conditions outside Eolas’s control, including the audibility of the alarm at a location where the Services capture audio, distance and building construction, ambient noise, the tone, pattern, and volume of the particular alarm device, microphone condition, and network availability. Audio is captured in common areas only, and an alarm sounding inside an individual unit, guest room, or other enclosed space may not be audible to the Services at all. EOLAS DOES NOT WARRANT THAT ANY ALARM SOUND WILL BE RECOGNIZED OR THAT ANY RESULTING EVENT WILL BE GENERATED, DELIVERED, TIMELY, OR RECEIVED, AND THE ABSENCE OF AN EVENT IS NOT A REPRESENTATION THAT NO ALARM HAS SOUNDED OR THAT NO HAZARDOUS CONDITION EXISTS. ALARM SOUND RECOGNITION SHOULD NOT BE RELIED UPON IN ANY CIRCUMSTANCE IN WHICH A PERSON MAY BE HARMED OR INJURED, OR IN ANY HIGH-RISK OR EMERGENCY SITUATION.
(e) No monitoring or dispatch. Events generated by Alarm Sound Recognition are delivered to Customer’s designated recipients under Section 3.12 only. They are not transmitted to any monitoring provider, are not monitored, verified, or acted upon by Eolas, and will not result in notification of any fire department, emergency medical service, or other public responder by Eolas. Customer is responsible for calling emergency services.
(f) Audio and consent. Alarm Sound Recognition requires audio capture in common areas, and Sections 3.13(a), 6.5, and 6.6 apply, including Customer’s responsibility for all notices, consents, and signage. Audio is analyzed on Client Software at the Site in a rolling buffer and is not retained beyond that buffer. Where the Services recognize an alarm sound, a short audio clip associated with the detection is transmitted with the resulting Event and is retained under the retention period Customer configures. That clip is accessible only to Customer’s authorized Users and, at Customer’s request, to Eolas support personnel; it is not transcribed, is not made available to any other person, and is not used to develop, train, evaluate, or improve AI Technology. Eolas will not enable audio capture or recording at a Site in a jurisdiction that requires the consent of every party to an oral communication, or that prohibits undisclosed recording without regard to location or expectation of privacy, unless Customer has recorded in the Services an attestation that conspicuous signage disclosing audio capture is posted at every point of entry to each affected common area.
(g) Availability. Eolas may modify, suspend, or discontinue Alarm Sound Recognition at any time on notice.
4.1 Professional Services. Customer may order Professional Services as needed to implement or configure the Subscription Service subject to an Order Document that describes the Professional Services. This Agreement governs all Professional Services Order Documents until Professional Services are terminated or completed. Professional Services may be provided by Eolas or its subcontractor.
4.2 Professional Services Warranty
4.2.1 Services. Eolas warrants that Professional Services will conform to the Service Warranty. If Customer reasonably believes that Eolas has failed to comply with the Service Warranty, Customer must provide a written Service Warranty claim to Eolas within thirty (30) days after the date Eolas performs Professional Services. If the Professional Services fail to comply with the Service Warranty, Eolas, at its option, will re-perform Professional Services that do not comply with the Service Warranty at no additional charge, or if not practical and solely at Eolas’s option, refund the part of the Professional Services Fee, if paid, for the Professional Services that do not comply with the Service Warranty.
4.2.2 Disclaimer. The Service Warranty does not cover problems, errors or other issues caused by (i) abuse, misuse, alteration, neglect, accident, unauthorized use, or acts or omissions of any party other than Eolas; (ii) Customer’s or a Site’s hardware, software, networks, or systems not provided by Eolas; or (iii) Customer or a Site not using Subscription Service, the Client Software or Deliverables, according to the Documentation and published specifications. THIS SECTION 4.2 DESCRIBES EOLAS’S SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR A CLAIM RELATING TO THE PROFESSIONAL SERVICES. EOLAS, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTEES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, FOR PROFESSIONAL SERVICES, THEIR USE, SUFFICIENCY, OR ACCURACY, INCLUDING (a) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT; OR (b) THAT PROFESSIONAL SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
5.1 Overview. Customer is entering into this Agreement for the benefit of itself and for use by the Sites and their Users. Unless otherwise expressly stated herein, Customer will be responsible for the Site(s)’ compliance with the terms of this Agreement, and any terms herein governing use and access of the Services by Customer will also apply to each Site’s access and use. Notwithstanding the foregoing, to the extent set forth in the applicable Order Document, each Site will be responsible for the payment of fees applicable to such Site as contemplated in the Order Document and Section 8.
5.2 Customer Obligations. Customer will:
(a) be responsible for Users’ compliance with the Agreement and the User Terms and all activity with the Services through User accounts and for the manner in which it, its Users, its customers, and end users use the Subscription Service, including the policies and procedures Customer establishes to protect the security of its data, computer network and other facilities, its online content, and its choice of equipment and software;
(b) use the Subscription Service according to the Documentation;
(c) be responsible for the accuracy, quality, legality, integrity, ownership, protection, adequate storage and manner of acquiring Customer Data;
(d) comply with all Applicable Laws and regulations in accessing and using the Subscription Service and providing Customer Data to the Subscription Service, including those related to data privacy, telecommunications, transmission of technical or personally identifiable information, and spam;
(e) notify Eolas immediately of any unauthorized access or use or any other known or suspected breach of security relating to Customer’s use of the Services and use best efforts to immediately stop any violation of law or the Agreement or unauthorized access to the Subscription Service that is known or suspected by Customer;
(f) be responsible for custody and use of Subscription Service login credentials; and
(g) procure its Users’ acceptance of, and compliance with, the User Terms. Eolas may condition each User’s access to the Services on the User’s acceptance of the User Terms (available at eolas.co/terms/user). The User Terms do not reduce Customer’s responsibility for Users under this Agreement, and this Agreement controls over the User Terms on a conflict.
5.3 Suspension of Subscription. Eolas may suspend the Subscription Service if it reasonably and in good faith believes that any use of the Subscription Service violates Section 3.3 or this Section 5. Eolas will notify Customer before suspending where practicable and promptly afterwards where it is not, will limit the suspension to the Sites, Users, or functionality giving rise to it so far as reasonably practicable, and will restore the Subscription Service promptly after the violation is cured or ceases.
6.1 License. Customer grants Eolas, its licensors and subcontractors a non-exclusive license to use, copy, store, process, analyze, transmit and display Customer Data:
(i) as necessary to provide and maintain the Subscription Service, including improving, modifying, monitoring and upgrading it, and operating, configuring, calibrating, and tuning AI Technology for Customer and its Sites (such as site-specific baselines, detection thresholds, and false-alarm reduction);
(ii) as required by law;
(iii) to make disclosures to Eolas’s licensors as required for royalty reporting; and
(iv) to develop, train, evaluate, and improve AI Technology, the Services, and related products and services made available to customers generally, using (A) Customer Data that has been aggregated, deidentified, or anonymized as described in Section 6.2 so that it does not identify, and is not reasonably linkable to, Customer, any Site, or any individual, (B) Feedback Data that has been aggregated, deidentified, or anonymized so that it does not contain, reproduce, permit retrieval of, or remain reasonably linkable to identifiable Customer Data or Personal Information, and (C) Usage Data.
Clause (iv) does not authorize the use of biometric identifiers, biometric templates, or biometric information, or of data derived from them, which is governed by Section 6.6(f). Except as clauses (i) through (iii) permit, Eolas uses Customer Data for purposes other than providing the Subscription Service to Customer and its Sites only in the aggregated, deidentified, or anonymized form described in clause (iv) and Section 6.2. Customer represents and warrants that Customer Data provided to Eolas will not violate any third party’s rights or any law, and that Customer has the right to grant the foregoing rights to Eolas and to make the Customer Data available to Eolas, including on behalf of Sites. The Subscription Services may enable Eolas to pull or otherwise receive Customer Data from third parties, and Customer authorizes Eolas to collect, retain and use such Customer Data as contemplated in this Agreement. AI Technology tuned or calibrated using identifiable Customer Data will be used only to provide the Subscription Service to Customer and its Sites. Identifiable Feedback Data is used only to provide the Subscription Service to Customer and its Sites, including per-Site configuration, calibration, tuning, and false-alarm reduction, and is not used, in identifiable form, to develop, train, or evaluate AI Technology or Services made available to other customers. Where Customer or a User associates an Event or Incident with a named individual, or with a Site Occupant, unit or space, Occupancy Agreement, or other record, whether that record is imported from Customer’s own systems or created by Customer or a User in the Services, that association and any such record are Customer Data held to provide the Subscription Service to Customer and its Sites. Eolas will not include that association or record in Feedback Data, will not place either in a training queue, and will exclude both from the aggregated, deidentified, or anonymized data used under clause (iv) and from Usage Data. Customer configures the retention applicable to such records and associations in the Services; unless Customer’s settings provide otherwise, Eolas retains a record of that kind for as long as any Event or Incident associated with it is retained and deletes it when the last such Event or Incident is deleted. Eolas will retain identifiable Feedback Data in accordance with Customer’s data-governance settings in the Services and will delete it following Customer’s deletion election or termination of the applicable Subscription. Feedback Data awaiting a training run remains identifiable, remains associated with Customer and the applicable Site, and is retained, deleted, and otherwise handled in accordance with Customer’s data-governance settings on the same basis as other Customer Data, for so long as the applicable Subscription remains in effect. Eolas conducts training runs at intervals it determines, which may be days or months apart. Customer Data and Feedback Data are deidentified at the point they are drawn into a training run, and only the deidentified form is used in the run. If the applicable Subscription terminates or expires, or Customer makes a deletion election covering that Feedback Data, before the Feedback Data is drawn into a training run, Eolas will delete it and will not use it in any training run. Feedback Data is not drawn into a training run after the Customer Data for the Site is retained under the Data Retention Add-on, and Customer Data so retained is not used in any training run. Eolas will delete the deidentified copy used in a training run upon completion of that run. A completed training run adjusts the parameters of AI Technology, and the contribution of any particular Feedback Data to those parameters cannot be identified, isolated, or reversed. Deletion or removal of Customer Data or Feedback Data (including upon termination or pursuant to those settings) does not require Eolas to delete, retrain, or reverse any AI Technology or improvements to the Services previously developed in accordance with this Agreement, provided that the AI Technology does not contain, reproduce, permit retrieval of, or remain reasonably linkable to identifiable Customer Data or Personal Information.
6.2 Storage and Security. Eolas stores Customer Data in the Eolas-hosted portions of the Subscription Service on servers located in the United States. Eolas is responsible for storage and backup of Customer Data for the data retention period offered to, and specified by, Customer using the settings within the Services, unless Customer specifies and subscribes to an alternative storage and backup plan in an Order Document. Where Customer reduces a retention period, the reduced period applies to Customer Data already held as well as to Customer Data created afterward, and Customer Data falling outside the reduced period is deleted at the next scheduled deletion cycle; the Services will require confirmation of that effect before the reduction takes effect. A reduction does not override any suspension of deletion then in effect under this Section 6.2. Customer is solely responsible for (i) archival of critical Customer Data, (ii) determining applicable data retention requirements, and (iii) retaining, archiving, and storing any Customer Data beyond that retention period. Eolas is not responsible or liable for (i) Customer’s failure to store Customer Data, (ii) deletion, correction, destruction, damage to or loss of Customer Data due to actions of Users, or (iii) the security or handling of Customer Data by Users. Where an Event or Incident references Customer Data held in the Eolas-hosted portions of the Subscription Service, including video, images, and audio, that Customer Data is retained for as long as the Event or Incident that references it is retained and is not deleted by operation of a shorter retention period otherwise applicable to Customer Data generally. This sentence does not apply to Customer Data stored solely on Client Software or Customer-Provided Equipment, which remains subject to Section 6.9.2. During the Subscription Term and the Retrieval Period, Customer may export Customer Data using the tools Eolas makes available or via a one-time export upon written request. Any such export will be for lawful purposes only, and Eolas will have no responsibility or liability for any use, disclosure, or processing of Customer Data by Customer or any third party following the export. Eolas has no obligation to retain Customer Data after the applicable retention period and may permanently delete it in accordance with its standard data deletion schedules, except that upon written notice from Customer identifying a claim, investigation, dispute, litigation, subpoena, or legal hold and the records concerned, Eolas will suspend scheduled deletion of the identified Customer Data and platform records in its possession or control until Customer releases the hold in writing. Eolas may also suspend deletion of records that Applicable Law or legal process served on Eolas requires it to preserve, for as long as that requirement continues. A suspension may be placed only by the Customer of Record as to the Customer Data of its Site, and by a former Customer of Record or an organization granted the election in Section 9.3(i)(A) under Section 2.3(f) as to Customer Data held for it during a Retrieval Period or under the Data Retention Add-on (Section 9.3(i)(A)), and may be released only in writing by the party that placed it; it continues in effect notwithstanding a change of Customer of Record or the end of that party’s access to the Site. While a suspension is in effect, the party that placed it may search and export the suspended records on a read-only basis for the purposes of the matter identified. Where the party that placed a suspension has no Subscription in effect for the Site and no Data Retention Add-on covering the suspended records, Eolas may charge that party Eolas’s then current preservation fee for the suspended records for each month the suspension continues after the later of its placement and the end of any such Data Retention Add-on. Eolas may aggregate, deidentify, or anonymize Customer Data so that it no longer meets the definition of Customer Data or otherwise no longer constitutes Personal Information, and may use that aggregated, deidentified, or anonymized data (including associated metadata) for its own business purposes, including product development, analytics, benchmarking, and research and development; provided that Eolas will not attempt to, or actually, re-identify any previously aggregated, deidentified, or anonymized data. Eolas takes reasonable measures to ensure that such data cannot be associated with an individual or household, publicly commits to maintain and use it only in that form, and contractually obligates any recipient of it to do the same. The preceding four sentences do not apply to content submitted to Eolas directly by an individual through an upload or submission flow that Eolas presents to that individual. Eolas holds that content solely to provide the Subscription Service to Customer and its Sites, does not aggregate, deidentify, or anonymize it for its own business purposes, and does not use it to develop, train, evaluate, or improve AI Technology, models, or Services.
6.3 Compliance with Applicable Privacy Laws. Customer and Eolas will comply with their respective obligations under Applicable Laws relating to privacy and data protection in connection with their performance under this Agreement, including laws governing the collection, use, disclosure, transfer, storage, and protection of personal data. To the extent Customer Data includes personal information, the Data Processing Addendum available at eolas.co/trust/dpa (the “DPA”), as updated in accordance with its terms, is automatically incorporated into and forms part of this Agreement, without signature. In the event of a conflict between the DPA and these Customer Terms, the DPA controls solely with respect to the processing of personal information. Any data processing addendum mutually executed by Customer and Eolas supersedes the standard DPA to the extent of any conflict.
6.4 Data Security
6.4.1 Eolas Security Overview. Eolas will provide the Services in accordance with the terms and conditions regarding data security set forth herein. Eolas will also reasonably cooperate with Customer to comply with any requests or instructions issued by any governmental or regulatory authority in respect of any Protected Data.
6.4.2 Security Measures. Eolas will establish and maintain appropriate electronic, physical and organizational security procedures, measures and controls designed to guard against the destruction, loss, unauthorized access or disclosure, usage or alteration of Protected Data in the possession of Eolas, that are no less rigorous than those maintained by Eolas for its own information of a similar nature. Eolas will use commercially reasonable efforts designed to ensure that Protected Data will be accessible by only the individuals involved in the provision, development, production and support of the Services (which, for the avoidance of doubt, may include service providers and subprocessors engaged by Eolas for purposes of performing the Services), and any Breach will be communicated to Customer as Section 6.4.3 provides. Protected Data will not be used for any purpose outside of the scope of this Agreement. Eolas further restricts review by Eolas personnel and contractors of Customer Data consisting of video, audio, or images. Such review is permitted only where (i) required by Applicable Law or legal process, (ii) reasonably necessary to provide support that Customer or a User has requested, (iii) reasonably necessary to investigate a security incident, a suspected violation of Section 3.3, or a credible threat to the safety of any person, or (iv) Customer has authorized it. Eolas will limit such access to the smallest group of personnel able to perform the applicable function, will require multi-factor authentication for access to systems storing that Customer Data, will maintain encryption of that Customer Data in transit and at rest, and will log access to it. A description of Eolas’s current technical and organizational security measures, together with Eolas’s security certifications and the categories of subprocessors engaged in providing the Services, is maintained at the Eolas Trust Center, eolas.co/trust.
6.4.3 Security Breaches. Eolas will notify Customer without undue delay after becoming aware of a Breach, and may provide notification in phases as information becomes available. Eolas will bear the cost of its own investigation and forensic analysis of a Breach and will provide Customer the information reasonably necessary for Customer to meet its own notification obligations. Where a Breach results from Eolas’s breach of this Section 6.4, Eolas will reimburse Customer’s reasonable and documented costs of notifying individuals and authorities as required by Applicable Law. Eolas may instead elect, by written notice to Customer, to give that notification itself and at its own cost, in which case Customer will have a reasonable opportunity to review and comment on the content of any notice concerning Customer or its Sites before it is sent and Eolas will consider those comments in good faith. Reimbursement extends only to those individuals and authorities that Applicable Law requires to be notified, and not to notices Customer elects to give more broadly. Before incurring costs for which it will seek reimbursement, Customer will consult Eolas on the method and vendor of notification and will give notice by electronic means where Applicable Law permits. Customer’s costs of operating a call center and of providing credit monitoring or similar remedial services are damages subject to Section 13 and are not separately reimbursable. Unless Eolas has used secure communication channels, the notification will not contain any Protected Data. Eolas may delay notification of a Breach if a law enforcement agency determines that notification will impede a criminal investigation; notification will then occur promptly after that agency determines it will not compromise the investigation. Neither party may delay or interfere with any required notification of clients, consumers, regulatory agencies, or law enforcement of a discovered or suspected incident, except as explicitly requested by involved law enforcement agencies. Notification will include, to the extent known and reasonably available, the nature of the Breach, the categories of Customer Data or Personal Information affected, the categories and approximate number of affected individuals and records relating to Customer, the status of any internal, regulatory or law enforcement investigation, and any actions taken or required by either party to stop or limit any significant harm or inconvenience to Customer or any affected customers or consumers. Each party remains responsible for notifying its own customers, regulators, and law enforcement agencies of any such discovered or suspected Breaches required by laws applicable to that party and this Agreement.
6.5 Sensors; Customer Notices and Consents; Data Capture. Certain Services may include, or interface with, Sensors. Customer is solely responsible for ensuring that all required notices, consents, disclosures, or other authorizations have been provided to, and validly obtained from, all Site Occupants (including minors via their legal guardians), visitors, personnel, and other individuals present at each Site and any other related managed property, as necessary to permit the placement and operation of Sensors and the collection, monitoring, transmission, storage, and processing of any data (including any personally identifiable information) captured by them. Customer is responsible for and will ensure:
(a) compliance with all Applicable Laws governing audio or video capture, recording, monitoring, or disclosure, including any one-party or two-party consent requirements, eavesdropping and wiretapping restrictions, and, where applicable, housing, occupancy, surveillance, or consumer protection rules;
(b) that conspicuous and legally sufficient notices and signage are provided and that all required consents for Sensor placement and operation are obtained, including in occupied areas and areas accessible to Site Occupants; and
(c) that Sensors are not deployed in any location where recording is prohibited by law, and that Sensors other than environmental, temperature, humidity, water, or similar devices are not deployed within any individual dwelling unit, guest room, restroom, locker room, changing or fitting area, shower or bath area, medical or treatment area, or other area in which a reasonable expectation of privacy exists.
Customer is further responsible, at its expense and as between the parties, for:
(i) selecting and approving Sensor locations and for the suitability of those locations to the intended purpose;
(ii) installing, powering, connecting, and physically securing Sensors and maintaining the network connectivity they require;
(iii) replacing batteries and other consumables and repairing or replacing damaged, missing, relocated, or failed Sensors; and
(iv) periodically testing and verifying that Sensors are present, operating, and reporting.
Sensors are physical devices that may fail, drift, lose power or connectivity, be obstructed, or be moved or removed without Eolas’s knowledge, and Eolas does not warrant continuous Sensor operation or reporting.
Audio capture and voice-announcement features are provided for common areas only. Customer will not deploy, enable, or direct the use of any audio capture or voice-announcement feature within any individual dwelling unit, guest room, restroom, locker room, changing or fitting area, shower or bath area, medical or treatment area, or other area in which a reasonable expectation of privacy exists, and Eolas may disable any such feature it determines has been deployed or used in violation of this sentence. Eolas may also restrict or disable audio capture or recording functionality at a Site or in a jurisdiction where Eolas reasonably determines the restriction is appropriate to comply with Applicable Law or to reduce material legal or regulatory risk. That right extends to audio capture and recording only; outbound voice announcements do not require audio capture and are not restricted by an exercise of it unless Eolas reasonably determines Applicable Law requires otherwise. Eolas has no obligation to determine whether any Customer deployment complies with Applicable Law, and neither the exercise nor the non-exercise of this right relieves Customer of any obligation under this Section 6.5 or transfers to Eolas any responsibility for notices, consents, signage, or lawful deployment.
Customer’s responsibilities under this Section 6.5 do not include the enrollment disclosures and mechanisms Eolas provides under Section 6.6(f) or any notice, consent, retention, deletion, or similar requirement imposed by Applicable Law directly on Eolas, and nothing in this Section 6.5 transfers any such directly imposed Eolas obligation to Customer. Customer further represents, warrants, and covenants that it has validly obtained, or will validly obtain, all rights, consents, and legal authority necessary to permit Eolas to perform the Subscription Services without violating any rights of individuals or any Applicable Laws. Eolas will have no liability arising from Customer’s failure to satisfy these obligations and, in addition to its other rights and remedies, may in its reasonable discretion and without liability disable, suspend, or limit Sensor-related features upon notice to Customer if Eolas determines that Customer has not satisfied them.
Customer will indemnify, defend, and hold harmless Eolas from and against any third-party claim, and any damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded in or paid in settlement of such a claim, arising out of or related to (a) Customer’s failure to comply with this Section 6.5 or (b) an Intervention initiated by or at the direction of Customer, a Site, or a User, including any escalation, confrontation, injury, property damage, or claim of harassment, discrimination, retaliation, or unfair or deceptive practice arising from it. Customer’s obligations under this Section 6.5 do not extend to claims to the extent caused by Eolas’s gross negligence, willful misconduct, or breach of this Agreement. Customer’s obligations in this Section 6.5 are in addition to, and not in lieu of, Customer’s indemnity obligations under Section 14.2.
6.6 AI Technology.
(a) Use of AI. The Subscription Service includes AI Technology, which may include: computer-vision and audio analytics that detect and classify events, behaviors, objects, conditions, and persons (including by observable attributes such as apparel, approximate stature, or direction of travel, and including associating detections that appear to involve the same person across cameras or across time within an incident); models that score, prioritize, summarize, or describe events; and generative features that produce content such as alert messages, incident summaries, and audio prompts. Association of detections under the preceding sentence operates on observable attributes such as apparel, build, approximate stature, and movement, and occurs only within a single Event or Incident. It does not use facial recognition or measurements of facial geometry, and does not use fingerprints, iris or retina patterns, or voiceprints. It does not determine a person’s identity. Association of detections under this Section does not establish or attempt to establish the identity of any individual and does not create biometric information or a biometric identifier within the meaning of Applicable Privacy Laws. Eolas does not create or retain a persistent biometric identifier or template from this processing: the representation used to associate detections exists only for the session or incident in which those detections occur, is not retained afterward, and is not used to recognize a person in any later session. Except where a Biometric Feature is authorized and enabled under Section 6.6(f), any association of a detection with a named individual, and any association of detections in different Events or Incidents with the same individual, is made by Customer or a User and not by the Services. Except where a Biometric Feature is authorized and enabled under Section 6.6(f), the Services do not determine, propose, or suggest the identity of any person from appearance, gait, or other observable attributes. Associations made by Customer or a User are governed by Sections 3.3(k) and 6.1. AI Technology may operate on Client Software, Hardware, or Customer-Provided Equipment located at a Site, in Eolas’s cloud environment, or in the environments of Eolas’s service providers.
(b) Third-Party AI Providers. Eolas may use third-party providers of artificial-intelligence infrastructure and services to process Customer Data to provide, support, and improve the Subscription Service and, in the aggregated, deidentified, or anonymized form permitted by Section 6.1(iv), to support Eolas’s internal operations, in each case as subprocessors or service providers under written agreements that (i) impose confidentiality and data-protection obligations consistent with this Agreement and (ii) prohibit the provider from using Customer Data, or any Personal Information (including biometric Personal Information) made available through the Services, to train the provider’s own or any third party’s models or for the benefit of third parties.
(c) Outputs; Human Review. Outputs of AI Technology - including events detected and surfaced automatically without human review by Eolas - are probabilistic and may be inaccurate or incomplete, and may include false positives or fail to detect events, conditions, or persons. Outputs are intended to assist, and not to replace, human judgment. Customer is solely responsible for reviewing and validating outputs and for all decisions and actions taken in reliance on them, consistent with Sections 3.6, 3.7, and 10.2. Customer will not use, and will not permit any Site or User to use, outputs of AI Technology as the sole basis for any decision producing legal or similarly significant effects concerning an individual without human review of the underlying record. Section 3.3(k) governs any use of output of the Services concerning an individual’s eligibility for housing, tenancy, credit, insurance, or employment, and nothing in this Section 6.6 permits any use that Section 3.3(k) prohibits or restricts a use that Section 3.3(k) expressly permits.
(d) Notices. Customer is responsible for providing any notices or disclosures to individuals interacting with or affected by AI features (including generated audio prompts) that Applicable Law requires, and Section 6.5 applies to those notices.
(e) Data. Customer Data processed by AI Technology remains subject to Sections 6.1 through 6.4 and, where applicable, the Data Processing Addendum.
(f) Biometric Features. Certain optional features of the Services may use facial recognition, biometric identification or verification, or other biometric technologies (each, a “Biometric Feature”). Eolas will not make a Biometric Feature available for Customer or a Site unless Customer has affirmatively authorized that Biometric Feature for that account or Site through the Services, and Eolas will record the authorization, the authorizing individual, and the date, and will make that record available to Customer. Customer’s authorization makes the Biometric Feature available; it does not enroll any User. Eolas may impose additional prerequisites, require attestations or confirmations, restrict availability or functionality by jurisdiction or configuration, decline to enable a requested Biometric Feature, and suspend or disable a Biometric Feature where Eolas determines that legal, regulatory, technical, security, or compliance considerations warrant it; Customer’s authorization is necessary but not sufficient to require Eolas to activate a Biometric Feature. Customer may withdraw its authorization at any time on notice, effective prospectively.
Where a Biometric Feature depends on enrollment of an individual, no User is enrolled by reason of Customer’s authorization, and Eolas will not process a User’s biometric information for that Biometric Feature unless that User has affirmatively elected to enroll through the mechanism Eolas provides, after receiving the disclosures Eolas presents for that Biometric Feature. Customer and its administrators cannot make that election on a User’s behalf, and Eolas will not accept an enrollment purportedly given by Customer on a User’s behalf. Eolas may present additional feature-specific or jurisdiction-specific notices, releases, consents, acknowledgments, or retention disclosures as part of enrollment and may condition enrollment on them. A User may withdraw enrollment through the mechanism Eolas provides, subject to retention permitted or required by Applicable Law and the applicable feature terms. Biometric Features identify or verify only individuals who have enrolled through the mechanism Eolas provides, and Eolas will not make available a Biometric Feature that identifies or verifies individuals who have not enrolled.
Customer remains responsible for determining whether its deployment and use of a Biometric Feature is lawful and for all notices, consents, permissions, signage, policies, and other requirements applicable to Customer as a controller or business or as the operator of a Site, including under Section 6.5. Eolas will process biometric Personal Information only as permitted by this Agreement, the Data Processing Addendum, the applicable feature-specific terms and disclosures, Customer’s documented instructions where applicable, and Applicable Law.
Biometric identifiers, biometric templates, and biometric information processed for a Biometric Feature are used only to provide that Biometric Feature to Customer and its Sites, and are not used to develop, train, evaluate, or improve AI Technology, models, or Services made available to other customers; the permissions in Sections 6.1 and 6.2 concerning aggregated, deidentified, or anonymized data do not authorize any such use of biometric identifiers, biometric templates, biometric information, or data derived from them. Sections 3.3(k) and 6.6(c) continue to apply to any output of a Biometric Feature, and no Biometric Feature may be used for any determination those Sections prohibit.
Where a User authenticates using biometric functionality provided by the User’s own device or operating system, the biometric comparison is performed by that device or operating system, Eolas receives only the authentication result or token, and Eolas does not receive, derive, store, or have access to the underlying biometric template or credential; that authentication is not enrollment in a Biometric Feature. Section 3.1 does not authorize Eolas to make a Biometric Feature available except in accordance with this Section 6.6(f), and an authorization or enrollment under this Section operates under this Section and does not modify the Agreement. Eolas’s undertaking in this Section 6.6(f) not to use biometric identifiers, biometric templates, or biometric information to develop, train, evaluate, or improve AI Technology, models, or Services made available to other customers survives termination.
6.7 Hardware; Eolas Hub. Certain subscriptions may include Hardware provided by Eolas for use in connection with the Services, which may be subject to additional setup fees as set forth in the applicable Order Document(s). Customer agrees that:
(a) the Hardware is provided solely for use at the applicable Site(s) and solely in connection with the Services;
(b) the Hardware may not be modified, reverse-engineered, tampered with, or during the Subscription Term, used with any software or system other than Eolas’s Services; and
(c) the Hardware requires an active and reliable internet connection to access Eolas’s platform and to verify a valid subscription for the applicable Site and Hardware.
The Hardware may cease to function properly if (i) it cannot connect to the Internet and access Eolas’s platform for license verification, or (ii) the Subscription Term for the applicable Site or for the Hardware expires or is terminated. Where an Order Document provides for Eolas to supply Hardware, title and risk of loss pass to Customer on delivery unless that Order Document states otherwise, and Customer may retain the Hardware after the Subscription Term ends; Eolas’s only remaining rights in it are those stated below for Client Software and AI Technology installed on it.
The Subscription Service may include Client Software (including Eolas’s hub software application, the “Eolas Hub” or “Hub”) installed at a Site on Hardware provided by Eolas or on equipment procured and maintained by Customer or a Site in accordance with Eolas’s minimum specifications (“Customer-Provided Equipment”). Client Software and AI Technology deployed to a Site remain part of the Subscription Service, are licensed (not sold) subject to Sections 3.2 and 3.3, and constitute Eolas’s Confidential Information. Customer owns the equipment on which the Services operate. Eolas owns, and licenses rather than sells, the Client Software and AI Technology installed on that equipment, including all model weights, parameters, and configurations; no person may copy, extract, export, or reverse engineer them; and upon expiration or termination Eolas may deactivate and delete them remotely or, where remote access is unavailable, Customer will delete them or permit Eolas to do so on reasonable notice. Eolas makes no warranty with respect to any equipment, and any warranty for Hardware that Eolas supplies is limited to the pass-through of the manufacturer’s warranty to the extent transferable. Except as expressly stated in an Order Document, Eolas has no obligation to procure, install, configure, repair, replace, or maintain any equipment and no liability arising from equipment or its deployment.
6.8 Public Data.
6.8.1 License; Retention. During the Subscription Term Eolas grants Customer a non-exclusive, non-transferable, non-sublicensable license to access and use Public Data solely in connection with Customer’s permitted use of the Services. Public Data is not Customer Data. Eolas retains all right, title, and interest in and to Public Data, including any corrections, updates, annotations, or other modifications to Public Data contributed or facilitated by Customer, its Users or any other third parties. Upon termination or expiration of the Agreement, Eolas may retain and use Public Data (including such corrections, updates, annotations, or other modifications) for any lawful business purpose. Upon written request delivered at or before termination of Services at a Site, Customer may require Eolas, at no additional charge, to refrain from retaining and to delete Customer-contributed corrections, updates, annotations, or other modifications that constitute Public Data solely by virtue of being readily observable or publicly available from open sources and that do not originate from, or derive from, a governmental authority; provided that this opt-out will not apply to any Public Data that (a) originates from, or is derived from, a governmental authority, whether obtained directly or indirectly, or (b) is independently obtained or derived by Eolas. Eolas has no obligation to track or delete Public Data that has been aggregated or anonymized in a manner that cannot reasonably be segregated without disproportionate burden. Except as expressly permitted in this Section or in a successor agreement, Customer’s license to Public Data pertaining to a Site terminates upon termination of the Services with respect to that Site, and Customer will not retain or use Public Data thereafter.
6.8.2 Successor Transition. At Customer’s direction given on or before expiry of the Retrieval Period for a Site, Eolas will use commercially reasonable efforts to furnish to Customer or its designated successor owner or manager of a Site an export of (a) Customer Data associated with such Site and (b) such Public Data associated with such Site as is reasonably necessary for continuity of the Services at such Site; provided that Customer’s and successor’s post-termination rights to use Public Data will be limited to the scope of any then-current subscription or any successor agreement directly with Eolas. Customer may specify the categories of Customer Data and Public Data to be included in the export, and Section 9.3(i) governs deletion of categories Customer does not specify. Eolas may condition delivery on reasonable verification of successor authority and may exclude any data the disclosure of which would violate Applicable Law, third-party rights, or Eolas’s confidentiality obligations.
6.9 Customer-Hosted Components; Local Data.
6.9.1 Responsibilities. As between the parties, Customer and the applicable Site are responsible for Customer-Provided Equipment, including its procurement, replacement, host operating systems, physical security, power, and local-network connectivity and security. Eolas is responsible for the Client Software it deploys, including hardening, patching, and updating it, and may remotely access, configure, monitor, update, manage, and disable Client Software and AI Technology at a Site and collect Usage Data from them. Eolas is not responsible or liable for unavailability, degradation, or data loss to the extent attributable to Customer-Provided Equipment, host operating systems, or Customer’s or a Site’s network, power, or physical environment.
6.9.2 Local Data. Certain Customer Data (including video or sensor recordings not associated with a detected event) is stored solely on Client Software at the applicable Site, subject to configurable retention limits, and is not transmitted to or backed up in Eolas’s cloud environment. Customer Data associated with an Event or Incident, including video, images, and audio, is transmitted to and held in the Eolas-hosted portions of the Subscription Service and is subject to Section 6.2 rather than this Section 6.9.2. Locally stored Customer Data is subject to automatic deletion based on the retention period Customer configures. The retention period Customer configures is a maximum and not a guarantee: locally stored data is retained only so far as available storage capacity on the applicable equipment permits, and where that capacity is reached the oldest data is overwritten, so actual retention may be shorter than the configured period. Customer is responsible for provisioning and maintaining storage capacity sufficient for the retention it requires. Deletion may occur after expiration of that retention period where the applicable Client Software or Customer-Provided Equipment is powered off, offline, or otherwise unable to complete the deletion process when the retention period expires. Customer is solely responsible for exporting or otherwise preserving any such locally stored data that it wishes or is required to retain (including for legal-hold purposes). The provisions of Section 6.2 allocating responsibility to Customer and limiting Eolas’s responsibility and liability apply to such data; Eolas’s responsibility for storage and backup under Section 6.2 does not extend to Customer Data stored solely on Client Software or Customer-Provided Equipment.
7.1 Training Services. Initial training and ongoing scheduled training via a web meeting service is available for no charge. Additional training services, including in-person training, are available for Customer or Site purchase. All course materials are the property of Eolas.
8.1 Currency. Customer or Site, as applicable, will pay Fees in U.S. dollars. Eolas will invoice the Billing Party designated for the applicable Subscription or Site, and references in this Section 8 to payment by Customer or a Site, as applicable, mean payment by the Billing Party designated for that Subscription or Site. Customer may change the Billing Party for any Subscription or Site on written notice to Eolas, effective for invoices issued after Eolas processes the change. Designating a Site or a third party as Billing Party is for invoicing and payment convenience only: it does not release, reduce, novate, or otherwise affect Customer’s or the applicable Site’s obligation to pay Fees, Customer remains jointly and severally liable for those Fees as provided in Sections 1.35 and 2.2, and Eolas may invoice Customer directly for any amount the Billing Party has not paid when due. A Billing Party other than Customer that has not otherwise agreed to be bound by this Agreement - whether a third party or the legal entity that owns or manages a Site - is not a party to this Agreement, is not a third-party beneficiary of it, and acquires no rights under it; Customer is responsible for that person’s acts and omissions in connection with billing and payment. Removal of a Site under Section 2.2, or a change in the ownership or management of a property, does not discharge Fees accrued before the removal takes effect or any Subscription Term commitment applicable to that Site.
8.2 Subscription Fee and Payment. Fees for Subscription Service are due for the Subscription Term according to each Order Document, due and payable within thirty (30) days from invoice date unless otherwise specified in an Order Document. Except as expressly provided in this Agreement, Subscription Fees are non-refundable, and the payment obligation is not cancelable. Invoicing for Subscription Fees will commence once a Site transitions to an Active Status. Subscription Fees are calculated on the basis specified in the applicable Order Document, which may include a per-unit, per-space, per-camera, per-device, per-Site, or other metric. Where Fees are calculated on a variable metric, the applicable count is determined from the Services and from information Customer supplies or integrates, and Fees adjust each billing cycle to reflect the actual count, subject to any minimum or maximum specified in that Order Document. Acceptable payment methods include check, ACH and credit card. If credit card payment is selected or if use of a third-party procurement platform is required, processing fees will be added to the Subscription Fee equal to the processing fees charged to Eolas by a credit card processor or third-party procurement platform. Eolas and its third-party service provider providing payment processing services may store Customer’s or the Billing Party’s payment information. If the payment method Customer or an applicable Site supplies Eolas reaches its expiration date and Customer does not edit or update the applicable information, Eolas is authorized to continue billing that payment method and Customer or the applicable Site remains responsible for any uncollected amounts.
8.2.1 Other Fees. Setup Fee includes standard configuration and initial and ongoing training via online service. Customizations are available for an additional fee.
8.3 Professional Services Fees. Eolas will invoice Professional Service fees as Professional Services are performed unless otherwise specified in an Order Document. Invoices are due and payable thirty (30) days from invoice date. Customer or respective Site, as applicable, will pay all Professional Service fees and expenses incurred through the termination date of any Professional Services engagement.
8.4 Training Services Fees. Customer or Site(s) must execute an Order Document for additional Training Services (as described in Section 7).
8.5 Overdue Payments; Disputed Invoices. At Eolas’s discretion, a late fee may be assessed by Eolas at the highest rate allowed by law, up to 1.5% per month, on any overdue payment, unless Customer or the applicable Site provides written notice to Eolas of its good faith dispute before the invoice payment date and Eolas resolves the dispute in writing. Eolas is entitled to recover all reasonable costs and expenses for collection of overdue payments, including legal fees, from Customer or the applicable Site until all invoices including late fees, have been paid in full. Customer or the applicable Site must notify Eolas in writing of any disputed invoice, stating the basis for the dispute, within sixty (60) days after the invoice date, and may withhold the amount disputed in good faith pending resolution, but will not withhold or offset any undisputed amount. Eolas reserves the right to suspend the Subscription Service if Customer or an applicable Site is more than thirty (30) days delinquent in payment of all fees owed pursuant to this Agreement. Undisputed Fees and expenses due to Eolas under this Agreement may not be withheld or offset against other amounts, except that Customer may apply against the next invoice any credit or refund Eolas owes under this Agreement.
8.6 Additional Credit Requirements. Eolas may review Customer’s, a Site’s, or a designated Billing Party’s, as applicable, financial condition, payment and credit history and notify Customer or the applicable Site of any additional payment or credit requirements.
8.7 Taxes. Customer or Site(s), as applicable, will pay all sales, use and other taxes imposed upon the purchase, sale, license or use of the Subscription Service, except taxes on Eolas’s net income. Fees payable by Customer or Site will not be reduced by any tax withholding, and Customer or Site will pay invoice fees grossed up for withholding, or Customer will provide a tax exemption certificate or tax payment receipt before Eolas’s delivery of the Subscription Service. If Eolas has the legal obligation to pay or collect Taxes for which the Customer or a Site is responsible, Eolas will invoice Customer or the Site, as applicable, for such amounts.
9.1 Subscription Term. The Subscription Term for a Subscription Service is thirty (30) days unless the Order Document specifies a longer Subscription Term. At the end of each Subscription Term the Subscription Service renews automatically for a further term of the same length at Eolas’s then current rates. Where the Subscription Term is not a Committed Subscription Term, either party may terminate the Subscription Service at any time on thirty (30) days’ written notice, and Subscription Fees are payable only through the effective date of termination. Where the Subscription Term is a Committed Subscription Term, either party may prevent renewal by written notice given at least thirty (30) days before the end of the then-current Subscription Term, and Section 9.3(iv) applies to a termination before the end of that term.
9.2 Suspension or Termination. Either party may terminate the Agreement if the other party fails to perform or comply with any of its material obligations, including timely payment, and such breach, to the extent capable of being cured, is not cured within thirty (30) days of receipt of written notice of such failure by the other party. Eolas also may suspend or terminate Subscription Service and/or the Agreement upon written notice if Eolas has a good faith belief that:
(i) Customer or a Site is using Subscription Service for illegal purposes,
(ii) the integrity or security of Subscription Service is threatened,
(iii) such action is necessary to protect against fraud or harm to Eolas, or
(iv) Eolas is required by law to do so.
9.3 Effect of Termination. Upon termination or expiration of the Agreement or a Subscription Service:
(i) the Subscription will immediately cease, except that during the Retrieval Period Eolas will maintain Customer Data then held in the Eolas-hosted portions of the Subscription Service and provide Customer read-only access sufficient to export it, after which Eolas may permanently delete it, except to the extent Customer has, on or before expiry of the Retrieval Period, (A) elected, by written notice that may cover any or all of Customer’s affected Sites, to retain the Customer Data for that Site under Eolas’s data retention add-on (the “Data Retention Add-on”), which election is available only where all undisputed Fees then due have been paid, continues month to month at the fee stated in the applicable Order Document or, where none is stated, at Eolas’s then current rate for it, and may be ended by either party on thirty (30) days’ written notice, after which Eolas may permanently delete the retained Customer Data; Customer Data retained under the Data Retention Add-on is fixed as of the end of the Retrieval Period, is accessible on a read-only basis, including export, to the individuals Customer designates in writing, may be used by Customer for any lawful internal purpose, does not include biometric identifiers, biometric templates, or biometric information, which Eolas deletes at the end of the Retrieval Period unless a valid warrant or subpoena, or a suspension under Section 6.2, requires otherwise, and remains Customer Data of which Customer is the Controller under the Data Processing Addendum, so that Customer remains responsible for requests from individuals concerning it and Eolas will delete retained Customer Data on Customer’s instruction; a Site enrolled again while the Data Retention Add-on is in effect for it is enrolled as a new Site, and the retained Customer Data continues under this clause as a separate archive; or (B) directed a transfer under Section 6.8.2, in which case Eolas may permanently delete any Customer Data outside the categories Customer specifies for transfer. If Customer makes no election under (A) or (B), Eolas will delete Customer Data at the end of the Retrieval Period, except that Customer Data subject to a suspension under Section 6.2 continues as provided there. This Section 9.3(i) applies to a departing Customer of Record on a change under Section 2.3(g) as though its Subscription for the Site had terminated on the effective date of the change, and to an organization granted the election in clause (A) under Section 2.3(f);
(ii) Customer and Sites will cease using the Subscription Service and, at Eolas’s direction, return or destroy any Eolas materials, Client Software, Eolas Confidential Information and Documentation in its possession or control, including all copies and duplicates in any form; Eolas may remotely disable and delete Client Software and AI Technology installed at each Site (including on Customer-Provided Equipment), provided that Eolas will not do so before expiry of the Retrieval Period, except where Customer requests earlier removal or where earlier action is reasonably necessary to address a security risk or a violation of Section 3.3, and Customer and Sites will reasonably cooperate with such removal or deletion;
(iii) Customer will certify in writing that all materials required to be delivered or destroyed have been so delivered or destroyed; and
(iv) Customer or Site will immediately pay Eolas all fees accrued as of the termination date and, unless Customer terminates the Agreement pursuant to Section 9.2 for Eolas’s uncured material breach, unless Customer terminates under any other express right to terminate stated in this Agreement, or unless Eolas terminates other than for Customer’s breach, all fees due for the remainder of the Subscription Term. Except as expressly provided in this Agreement or an addendum, prepaid fees are non-refundable.
Termination of the Agreement or Subscription Service is without prejudice to any rights of either party against the other, including injunctive relief, and will not relieve either party of any obligation to the other existing at the time of termination, including the obligation to pay all charges that accrued before termination. The Retrieval Period applies only to Customer Data held in the Eolas-hosted portions of the Subscription Service. It does not apply to Customer Data stored solely on Client Software or Customer-Provided Equipment at a Site, which remains subject to Section 6.9.2, and Eolas does not guarantee access to that equipment following termination, including where it is disconnected, powered down, damaged, or otherwise outside Eolas’s control.
9.4 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 3.3 (Restrictions), 3.8 (Non-Eolas Offerings), 3.11 (Asset Protection; Not a Life Safety System), 3.13(c) (Prohibited Automation), 6 (Customer Data; Technologies), 9.3 (Effect of Termination), 10 (Disclaimer), 11 (Intellectual Property Ownership), 12 (Confidentiality), 13 (Limitation of Liability), 14 (Indemnification), 15 (Insurance), 17 (Injunctive Relief), 18.1 (Agreement), 18.4 (Governing Law; Venue), 18.5 (Compliance with Laws; Export), 18.7 (Notice), 18.10 (No Third-Party Beneficiaries), and any other provisions which by their nature are intended to survive termination or expiration of this Agreement, including all payment obligations accrued before termination.
10.1 General Disclaimer. EXCEPT AS OTHERWISE EXPLICITLY PROVIDED IN SECTIONS 3.1 AND 4.2 OF THESE CUSTOMER TERMS, SUBSCRIPTION SERVICE, CLIENT SOFTWARE, AND DELIVERABLES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EOLAS, AND ITS AFFILIATES, HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, FOR SUBSCRIPTION SERVICE, CLIENT SOFTWARE, AND DELIVERABLES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES RELATING TO TITLE, QUIET ENJOYMENT, SECURITY, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, USE, SUFFICIENCY, OR ACCURACY, AND ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY THAT THE OPERATION OR USE OF THE SUBSCRIPTION SERVICE, CLIENT SOFTWARE OR DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT CUSTOMER’S, ANY THIRD PARTY’S OR A SITE’S SYSTEMS, NETWORK OR EQUIPMENT WILL BE COMPATIBLE OR OPERATE WITH THE SUBSCRIPTION SERVICE, CLIENT SOFTWARE OR DELIVERABLES. THE SUBSCRIPTION SERVICE, CLIENT SOFTWARE AND DELIVERABLES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EOLAS AND ITS AFFILIATES ARE NOT RESPONSIBLE FOR, AND DISCLAIM ALL LIABILITY FOR, ANY DELAYS, FAILURES, DATA LOSS OR CORRUPTION, SECURITY BREACHES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OR FROM CUSTOMER’S SYSTEMS OR THIRD-PARTY SERVICES. WITHOUT LIMITING THE FOREGOING, EOLAS DOES NOT WARRANT THAT AI TECHNOLOGY OR ITS OUTPUTS WILL BE ACCURATE, COMPLETE, OR ERROR-FREE, OR THAT ALL EVENTS, CONDITIONS, OR PERSONS WILL BE DETECTED, CLASSIFIED, OR DESCRIBED CORRECTLY; OUTPUTS OF AI TECHNOLOGY ARE PROBABILISTIC AND MAY INCLUDE FALSE POSITIVES OR OMISSIONS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EOLAS, ITS AFFILIATES, OR THEIR REPRESENTATIVES WILL CREATE ANY WARRANTY.
10.2 Critical Uses. Customer acknowledges and agrees that the Subscription Service is not designed, intended, authorized or warranted to be suitable for use for or hosting of life-supporting uses or applications or other critical uses or applications where the failure or potential failure of the Subscription Service may cause injury, harm, death, or other grave problems, including delays in getting medical care or other emergency services (e.g., calls to 911). Customer acknowledges and agrees that use of the Subscription Service to support such uses or applications is solely at the Customer’s risk and that Eolas will have no liability arising out of any such use. Eolas does not contact emergency services, law enforcement, or any other responder on Customer’s behalf. Remote Monitoring Services, where ordered, are governed by the Remote Monitoring Addendum, under which a licensed third-party provider, and not Eolas, performs all verification, notification, and dispatch.
10.3 Sole Liability/Exclusive Remedy. For a claim that the Subscription Service, Client Software, or Deliverables fail to conform to an express warranty in this Agreement, Eolas will use commercially reasonable efforts to correct the non-conformity. If Eolas does not correct it within thirty (30) days after Customer’s written report, Eolas’s sole liability and Customer’s exclusive remedy is to terminate in writing the Subscription Service that gave rise to the claim and receive a refund of the Subscription fee for that Subscription Service for the remainder of the Subscription Term; provided that where the claim arises out of a non-conformity at a single Site, that termination and refund are instead limited to the Subscription Service at that Site. This Section does not apply to, and does not limit, Customer’s rights or Eolas’s liability under Section 13, Section 14, or any addendum, each of which governs the claims within its subject matter.
11.1 Intellectual Property Ownership. Eolas, its Affiliates or licensors own and retain all right, title and interest in all Intellectual Property in all Services, Subscription Service, Professional Services, Documentation, Client Software, Deliverables, developments, research data, designs, layout, processes, formulae, mask works, documents, drawings, specifications, and other Eolas information, proprietary materials, software, products and all derivative works. To the extent any right, title or interest in or to any of Eolas’s or its licensors’ Intellectual Property does not automatically vest in Eolas or its Affiliates by operation of law, Customer irrevocably transfers, assigns and conveys all right, title, and interest in that Intellectual Property to Eolas, or its Affiliates or licensors, as applicable. At Eolas’s request and expense Customer will promptly take any action and execute any documents necessary to vest full title in Eolas, its Affiliates or its licensor in accordance with that assignment. Eolas reserves the right to enforce its rights and remedies to protect its Intellectual Property. Customer retains all right, title, and interest in and to all Intellectual Property in any pre-existing or other Customer materials, including reports, statistics, Confidential Information, Customer Data, and Feedback Data. For clarity, and without limiting Customer’s ownership of Customer Data and Feedback Data, Eolas owns all AI Technology and Usage Data and all improvements, enhancements, learnings, and derivative works of the Services or AI Technology resulting from processing performed in accordance with Section 6, provided that this does not grant Eolas ownership of, or any right to disclose, identifiable Customer Data except as permitted by this Agreement.
11.2 Feedback. Customer may, but is not required to, provide Feedback. Customer grants Eolas a perpetual, irrevocable, worldwide, royalty-free, fully paid-up right and license to use, reproduce, and incorporate Feedback to develop, maintain, support, and improve the Services and Eolas’s other products and services, without obligation to Customer. This license is subject to Customer’s ownership of Customer Data and Customer Confidential Information, does not permit Eolas to disclose Customer Confidential Information, and does not permit Eolas to identify Customer as the source of Feedback without Customer’s consent.
12.1 Confidential Information. Whether or not disclosed orally or marked as confidential, Confidential Information includes, without limitation: pricing set out in Order Documents, Subscription Services, Client Software, and Deliverables; either party’s non-public data or personally identifiable information regarding employees or customers residing on the party’s computer systems; Intellectual Property; Customer’s or a Site’s business information relating to its finances, products, services, marketing plans, vendors, suppliers, business partners, systems and technology; and Eolas’s proposals, specifications, manuals, product roadmaps, financial data, pricing, and results of benchmark tests. Confidential Information does not include information that is
(i) publicly available without breach of the Agreement;
(ii) reasonably shown to Disclosing Party’s satisfaction to have been known by Receiving Party before disclosure or independently developed by Receiving Party after disclosure without breach of these terms; or
(iii) obtained by Receiving Party from a third party without confidentiality obligation. The Services, Client Software, and Deliverables are not deemed to be placed in the public domain by Eolas. Receiving Party will promptly notify Disclosing Party if it is compelled by a court to disclose Confidential Information and will take any reasonable action requested to maintain the confidentiality of the Confidential Information.
12.2 Non-disclosure. Receiving Party will use Disclosing Party’s Confidential Information solely to exercise and perform its rights and obligations under the Agreement. Receiving Party will take all reasonable steps to safeguard Disclosing Party’s Confidential Information, including no less than the steps taken to protect its own Confidential Information. Receiving Party must not disclose Disclosing Party’s Confidential Information except (i) to its employees, Affiliates, contractors, subcontractors, and service providers (including providers of cloud infrastructure and artificial-intelligence services used to provide or support the Services or the Receiving Party’s internal operations) bound by written confidentiality obligations or (ii) as required to comply with Applicable Law, regulation, legal process, or the rules of any securities exchange to which the Receiving Party is subject; provided that, to the extent legally permitted, the Receiving Party will give Disclosing Party prompt written notice of such required disclosure and reasonably cooperate, at Disclosing Party’s expense, in any lawful efforts to seek a protective order or otherwise limit the scope of such disclosure. Receiving Party must promptly notify Disclosing Party in writing of unauthorized use or disclosure of Confidential Information. Receiving Party, at its expense, must take commercially reasonable action to prevent further unauthorized use or disclosure.
13.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR A PARTY’S FRAUD OR WILLFUL MISCONDUCT, AND EXCEPT FOR GROSS NEGLIGENCE TO THE EXTENT A LIMITATION IS UNENFORCEABLE UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY (INCLUDING CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) FOR (i) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND, (ii) ANY LOSS OF BUSINESS, INTERRUPTION OF BUSINESS OR OPERATIONS, COST OF COVER, LOSS OF GOODWILL, OR LOSS OR CORRUPTION OF DATA, PROFITS, OR REVENUE, OR (iii) DAMAGES ARISING FROM THE FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, IN EACH CASE WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION IN CLAUSE (ii) OF LOSS OR CORRUPTION OF DATA DOES NOT APPLY TO LOSS OR CORRUPTION OF CUSTOMER DATA CAUSED BY EOLAS’S BREACH OF SECTION 6.4, WHICH REMAINS SUBJECT TO SECTION 13.2. FOR CLARITY, THE EXCLUSIONS IN THIS SECTION 13.1 DO NOT EXCLUDE AMOUNTS AN INDEMNIFIED PARTY IS OBLIGATED TO PAY A THIRD PARTY UNDER A FINAL JUDGMENT, OR UNDER A SETTLEMENT ENTERED INTO IN ACCORDANCE WITH THE APPLICABLE INDEMNIFICATION PROCEDURE, ON A THIRD-PARTY CLAIM SUBJECT TO A PARTY’S INDEMNIFICATION OBLIGATION UNDER THE AGREEMENT, SOLELY BECAUSE THOSE AMOUNTS WOULD BE OF A KIND EXCLUDED BY THIS SECTION 13.1 IF CLAIMED DIRECTLY BY THE INDEMNIFIED PARTY. THE PRECEDING SENTENCE DOES NOT APPLY TO DAMAGES AN INDEMNIFIED PARTY SUFFERS ITSELF, DOES NOT EXPAND THE SCOPE OF ANY INDEMNIFICATION OBLIGATION, AND DOES NOT LIMIT ANY OTHER CONDITION, EXCLUSION, OR LIMITATION THAT APPLIES TO THAT OBLIGATION, INCLUDING ANY CAP EXPRESSLY APPLICABLE TO IT AND ANY PROHIBITION UNDER APPLICABLE LAW ON INDEMNIFYING A PARTY FOR PARTICULAR DAMAGES.
13.2 SUBJECT TO THE EXCLUSIONS OF DAMAGES IN SECTION 13.1, AND EXCEPT FOR A CLAIM FOR INFRINGEMENT UNDER SECTION 14 OR INJUNCTIVE RELIEF UNDER SECTION 17, EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 6.5, 14.1, 14.2 AND 18.5 AND UNDER THE CUSTOMER INDEMNIFICATION PROVISIONS OF THE EOLAS REMOTE MONITORING ADDENDUM, DEATH OR BODILY INJURY CLAIMS TO THE EXTENT CAUSED BY EOLAS’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, GROSS NEGLIGENCE TO THE EXTENT A LIMITATION OF LIABILITY IS UNENFORCEABLE UNDER APPLICABLE LAW, WILLFUL MISCONDUCT, FRAUD, OR CUSTOMER’S FAILURE TO COMPLY WITH THE LICENSE OR PAYMENT TERMS, NEITHER PARTY, ITS AFFILIATES OR LICENSORS WILL BE LIABLE FOR ANY DIRECT DAMAGES THAT EXCEED THE AMOUNTS PAID AND PAYABLE BY CUSTOMER UNDER THE AGREEMENT (WHETHER OR NOT A “CLAIM” AS DEFINED IN SECTION 1.8) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO THE CLAIM; PROVIDED THAT WHERE THE CLAIM ARISES OUT OF AN OCCURRENCE OR FAILURE AT A SINGLE SITE, THE LIMIT IS INSTEAD THE AMOUNTS PAID AND PAYABLE FOR THE SUBSCRIPTION SERVICE AT THAT SITE DURING THAT PERIOD. WHERE THE AGREEMENT OR THE APPLICABLE SUBSCRIPTION SERVICE HAS BEEN IN EFFECT FOR FEWER THAN TWELVE (12) MONTHS, THE APPLICABLE LIMIT IS THE AMOUNTS PAID AND PAYABLE FROM ITS START DATE THROUGH THE END OF THE TWELFTH (12TH) MONTH FOLLOWING THAT START DATE, AT THE RATES THEN IN EFFECT.
13.3 THE LIMITATIONS IN THIS SECTION 13 WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT, MISREPRESENTATION, NEGLIGENCE, THE USE OR PERFORMANCE OF THE SUBSCRIPTION SERVICE, THE CLIENT SOFTWARE, THE DELIVERABLES, PROFESSIONAL SERVICES, OR TRAINING SERVICES OR OTHERWISE. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY CLAIM BROUGHT BY THE OTHER PARTY MORE THAN TWELVE (12) MONTHS AFTER THE OTHER PARTY BECAME AWARE OF THE ISSUE GIVING RISE TO THE CLAIM. NEITHER PARTY’S FAILURE TO EXERCISE A RIGHT OR REMEDY IS A WAIVER.
13.4 Allocation of Risk; Reformation. THE PARTIES INTEND THE LIMITATIONS, EXCLUSIONS, CAPS, AND CONTRACTUAL LIMITATIONS PERIODS IN THIS SECTION 13 TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND TO BE INDEPENDENT OF ONE ANOTHER. IF A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION DETERMINES THAT ANY LIMITATION, EXCLUSION, CAP, OR CONTRACTUAL LIMITATIONS PERIOD IN THIS SECTION 13, OR ANY CORRESPONDING PROVISION OF AN ADDENDUM, IS UNENFORCEABLE OR INAPPLICABLE IN WHOLE OR IN PART, OR THAT ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THAT PROVISION WILL BE MODIFIED AND ENFORCED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW RATHER THAN DISREGARDED, AND EVERY OTHER LIMITATION, EXCLUSION, CAP, AND CONTRACTUAL LIMITATIONS PERIOD IN THIS SECTION 13 WILL REMAIN IN FULL FORCE AND EFFECT. THE PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK IN THIS SECTION 13 AND IN SECTION 14, THAT EACH PARTY HAS HAD THE OPPORTUNITY TO REVIEW THAT ALLOCATION AND TO OBTAIN INSURANCE COVERING THE RISKS IT BEARS, THAT THE ALLOCATION IS A MATERIAL PART OF THE BASIS OF THE BARGAIN, AND THAT EOLAS WOULD NOT PROVIDE THE SERVICES AT THE FEES CHARGED WITHOUT IT.
13.5 Related User Claims. WHERE ONE OR MORE CLAIMS UNDER THE USER TERMS ARISE FROM THE SAME OR SUBSTANTIALLY RELATED FACTS, CIRCUMSTANCES, ACTS, OMISSIONS, EVENTS, OR INCIDENTS AS A CLAIM SUBJECT TO A LIMITATION UNDER THIS SECTION 13, AMOUNTS PAID OR PAYABLE BY EOLAS ON THOSE RELATED CLAIMS UNDER THE USER TERMS COUNT AGAINST AND REDUCE THE AMOUNT REMAINING AVAILABLE TO CUSTOMER UNDER THAT LIMITATION, IN WHATEVER ORDER THE CLAIMS ARE ASSERTED, SETTLED, ADJUDICATED, PAID, OR OTHERWISE RESOLVED. THIS SECTION 13.5 OPERATES ONLY AGAINST THE LIMITATION AVAILABLE TO CUSTOMER UNDER THIS AGREEMENT. IT DOES NOT REDUCE, CONDITION, OR OTHERWISE AFFECT ANY AMOUNT AVAILABLE TO A USER UNDER THE USER TERMS, WHICH APPLIES INDEPENDENTLY OF THIS AGREEMENT. IF THIS SECTION 13.5 IS HELD UNENFORCEABLE IN WHOLE OR IN PART, EVERY OTHER LIMITATION IN THIS SECTION 13 AND IN THE USER TERMS REMAINS IN FULL FORCE AND EFFECT. NO SEPARATE OR CUMULATIVE LIABILITY ARISES MERELY BECAUSE CLAIMS ARE ASSERTED BOTH UNDER THIS AGREEMENT AND UNDER THE USER TERMS. THIS SECTION 13.5 OPERATES SOLELY TO PREVENT CUMULATIVE LIABILITY FOR RELATED CLAIMS AND DOES NOT INCREASE ANY LIMITATION THAT WOULD OTHERWISE APPLY UNDER THIS AGREEMENT. THE USER TERMS ARE REFERENCED IN THIS SECTION SOLELY TO IDENTIFY CLAIMS THAT COUNT AGAINST THAT LIMITATION: NO USER IS A PARTY TO OR THIRD-PARTY BENEFICIARY OF THIS AGREEMENT, NO USER ACQUIRES STANDING OR ANY RIGHT TO ENFORCE THIS AGREEMENT OR ANY WARRANTY, SERVICE LEVEL, INDEMNITY, SECURITY OBLIGATION, REMEDY, OR OTHER OBLIGATION UNDER IT, AND NOTHING IN THIS SECTION CREATES ANY OBLIGATION OF EOLAS TO ANY USER OR ANY CLAIM A USER WOULD NOT OTHERWISE HAVE.
14.1 By Eolas.
14.1.1 Eolas will defend, at its expense, any Claim against Customer or a Site to the extent that the Subscription Service as provided by Eolas directly infringes a U.S. patent, copyright or trademark, or misappropriates a trade secret. Eolas will indemnify Customer for any judgment finally awarded against Customer or settlement agreed by Eolas for such Claim to the extent of the Subscription Service’s infringement, provided (i) Customer notifies Eolas promptly in writing of the Claim, (ii) Eolas has sole control over the defense or settlement, and (iii) Customer reasonably cooperates with Eolas, including providing all documents and information in Customer’s possession relevant to the Claim and making personnel available to testify or consult with Eolas. Eolas will conduct the defense with counsel of its selection. Eolas’s assumption of the defense of a Claim discharges Eolas’s obligation under this Section 14.1.1 with respect to costs of defense, and Eolas has no obligation to pay or reimburse any legal fees, costs, or expenses incurred by Customer or a Site in connection with that Claim. Customer or a Site may participate in the defense at its own expense with counsel of its own choosing. Eolas is not liable for any legal fees, costs, or expenses incurred before Eolas received the notice required by clause (i), and Eolas’s obligations under this Section 14.1.1 are reduced to the extent that late notice or a failure to cooperate prejudices the defense or settlement of the Claim. Where a conflict of interest under applicable rules of professional conduct prevents counsel selected by Eolas from representing Customer or a Site in a Claim, Eolas will pay the reasonable fees of one separate counsel for Customer and all affected Sites, at rates not exceeding those Eolas pays its own counsel in that Claim. Eolas will not enter into any settlement of a Claim that imposes any non-monetary obligation on Customer or a Site, admits fault or liability on the part of Customer or a Site, or requires any payment by Customer or a Site that Eolas does not fully discharge, without Customer’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed. Eolas may otherwise settle a Claim in its discretion. If Customer unreasonably withholds, conditions, or delays consent to a proposed written settlement requiring Customer’s consent under this Section, Eolas’s liability with respect to that Claim will not exceed the sum of (a) the monetary amount Eolas would have been required to pay under the proposed written settlement, without regard to any non-monetary terms of that settlement, and (b) defense costs incurred through the earlier of the date Customer communicated its withholding or conditions and the fifteenth (15th) day after Eolas delivered the proposed settlement to Customer in writing, in each case subject to the limitations of this Section. Notwithstanding Section 13.2, Eolas’s liability under this Section 14.1.1 is not subject to the limitations in Section 13.2 or to any other monetary limitation under this Agreement.
14.1.2 If the Subscription Service becomes, or in Eolas’s opinion is likely to become, subject to a Claim, Eolas may, at its option and expense, (i) acquire the right for Customer to continue using the Subscription Service, (ii) replace or modify the Subscription Service or create a workaround so that the Subscription Service is functionally equivalent and non-infringing, or (iii) terminate the Subscription Service and give Customer or applicable Sites a pro-rata refund of any prepaid Subscription fees for the remainder of the then current Subscription Term. THIS SECTION 14.1 SETS OUT EOLAS’S SOLE OBLIGATIONS AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION CLAIMS.
14.1.3 Eolas is not obligated or liable for a Claim to the extent arising out of or relating to
(i) use of the Subscription Service not according to the Agreement and Documentation,
(ii) modification of the Subscription Service made by Eolas for non-standard features or functionality for Customer or a Site or according to Customer’s or a Site’s directions,
(iii) any products, equipment, software, services, or data not supplied by Eolas or use of the Subscription Service combined with any other products, equipment, software, or data not supplied by Eolas if infringement would not occur without the combination,
(iv) Customer’s designs, instructions, plans or specifications,
(v) use of any version of the Subscription Service other than the most current release made available by Eolas, if the Claim would have been avoided by use of such release, or
(vi) outputs of AI Technology, to the extent the Claim arises from Customer Data or other inputs provided by or on behalf of Customer, from use of such outputs in violation of this Agreement or the Documentation, or from modification of such outputs by or on behalf of Customer.
14.2 By Customer. Customer will defend and indemnify Eolas and Affiliates against any third-party claim based on
(i) Customer’s, its customers’ or other Users’ use of the Subscription Service, Client Software or Deliverables in violation of law or in a manner that infringes or misappropriates third-party intellectual property rights (other than to the extent such claim arises solely from the Subscription Service, Client Software or Deliverables as provided by Eolas and as used in conformance with this Agreement);
(ii) Customer’s, a Site’s, or their Affiliates’ or contractors’ failure to comply with the confidentiality terms or any License terms of the Agreement,
(iii) any claim relating to Customer Data, including Personal Information, provided, input, transmitted, or made available by or on behalf of Customer, its Affiliates, contractors, Users, or Sites, except to the extent such claim arises from Eolas’s failure to comply with its express data security or privacy obligations under this Agreement,
(iv) any claim that the processing, storage, or use of Customer Data (including Personal Information) in connection with the Subscription Service violates, misappropriates, or otherwise infringes the rights of any person or violates Applicable Law; or
(v) Customer’s or a Site’s gross negligence or willful misconduct, or a User’s violation of the User Terms, provided that: (1) Eolas notifies Customer promptly of the claim once Eolas has actual knowledge of same; (2) Customer has sole control of the defense and all related settlement negotiations; and (3) Eolas provides Customer, at Customer’s or Site’s expense, with the assistance, information, and authority reasonably necessary to perform the above. Customer’s obligations under this Section 14.2 do not extend to any Claim to the extent caused by Eolas’s gross negligence, willful misconduct, or breach of this Agreement.
14.3 Assumption of Defense. If the indemnifying party fails to defend or settle a claim according to this Section 14 in a timely manner, the indemnified party may assume defense of the claim at the indemnifying party’s expense, and the indemnifying party will reasonably cooperate. Neither party may make an admission of fault on behalf of the other party without written consent. Notwithstanding the first sentence of this Section 14.3, Eolas’s conduct of the defense of a Claim in accordance with Section 14.1.1, including its selection of counsel and its control of the defense and settlement, is not a failure to defend or settle a claim for purposes of this Section 14.3. This Section 14.3 does not expand or alter the allocation of costs of defense in Section 14.1.1, and may not be used to recover from Eolas any legal fees, costs, or expenses that Section 14.1.1 provides Eolas has no obligation to pay or reimburse. This Section 14.3 continues to apply in full to any failure of an indemnifying party to perform an indemnification obligation that remains owing under this Section 14, including any failure of Eolas to assume or conduct the defense of a Claim it is obligated to defend under Section 14.1.1, and nothing in this paragraph limits the cooperation that Section 14.1.1 expressly requires of Eolas.
15.1 Insurance. While the Agreement is in effect, Eolas will maintain commercially reasonable insurance appropriate to its business and its obligations under the Agreement. Eolas will provide a certificate of insurance evidencing that coverage on Customer’s written request. Additional insurance terms, if any, are as set forth in the Agreement.
15.2 Waiver of Subrogation. Customer waives, and to the extent of its authority will cause each Site to waive, all rights of subrogation, contribution, and recovery against Eolas for any loss or damage to property that is covered by property insurance, and will use commercially reasonable efforts to obtain and maintain a waiver of subrogation endorsement in favor of Eolas under each such policy. This waiver does not apply to the extent a loss arises from Eolas’s gross negligence or willful misconduct.
16.1 Dispute Resolution. The parties will attempt in good faith to resolve any controversy or claim promptly through business discussions, and will, upon written request, escalate a dispute to executive management for resolution. If the parties fail to resolve the dispute within thirty (30) days of written request, or any longer period agreed to in writing, the parties may pursue the remedies to which they are entitled. This Section will not restrict either party’s right to seek injunctive relief.
17.1 Injunctive Relief. Either party’s failure to comply with the confidentiality terms or Customer’s or a Site’s failure to comply with the License would result in irreparable harm to the other party that may be intangible but real and is incapable of complete remedy by award of damages. In addition to other relief granted,
(a) either party has the right to an injunction or other court order and may proceed directly to court to specifically enforce the other party’s compliance with the License or confidentiality terms,
(b) no finding of irreparable harm or other condition to injunctive relief is required, and
(c) an order may be entered to compel the breaching party to act or refrain from acting or threatening action.
18.1 Agreement. The Agreement is the entire agreement governing Customer’s purchase of Subscription Service and supersedes any other proposal, understanding, agreement, negotiations and representations, oral or written. Each Order Document is part of the Agreement and not a separate contract. No statement in a free-text, description, or comment field of an Order Document creates a warranty, service level, or other obligation of Eolas. Any terms in an Order Document that are inconsistent with the Agreement will control for that Order Document only, provided that Sections 1, 3, 6, and 9 through 18 may not be changed by an Order Document and can only be modified by a written amendment signed by both parties, except that an Order Document may vary the termination and fee provisions of Section 9. Where an Order Document does not specify a Committed Subscription Term, Customer retains the right to terminate on not less than thirty (30) days’ notice. Where an Order Document specifies a Committed Subscription Term, Section 9.3(iv) applies to fees for the remainder of that term. No Order Document may modify the Data Processing Addendum or the Remote Monitoring Addendum. Any inconsistent or additional terms of Customer’s or a Site’s purchase order are excluded regardless of Eolas accepting the purchase order for payment purposes. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: Order Document (including any terms expressly referenced and incorporated therein, but excluding, for precedence purposes, the Customer Terms and other standing documents incorporated by reference), the Master Subscription Agreement signature form (if executed), the Data Processing Addendum (solely with respect to the processing of personal information), any addendum, schedule, or policy incorporated into the Agreement, whether by these Customer Terms or by an Order Document (each, an “Addendum”), solely with respect to its subject matter, and these Customer Terms. An Addendum need not be identified in these Customer Terms to form part of the Agreement or to take precedence under this Section. Where an Addendum states a service level, credit, exclusive remedy, or limitation of liability for a matter within its subject matter, that provision governs that matter in place of any corresponding provision of these Customer Terms. The User Terms govern the relationship between Eolas and an individual User, are not part of this Agreement, and confer no rights on Customer; as between Eolas and Customer, this Agreement controls over the User Terms on any conflict. If any term of this Agreement is held to be illegal, invalid, or unenforceable, the remaining terms will remain in full force and effect. If applicable, by executing this Agreement, Eolas and Customer will be deemed to have executed the applicable Order Documents for each of the Sites listed in Schedule B to the Master Subscription Agreement signature form (if executed) (each of which will therefore be deemed Sites in accordance with the definition thereof), and the Services for the Sites will be governed by the terms and conditions contained in the applicable Order Documents. Additional forms may be set forth in and incorporated into the Order Documents, but such forms are only binding to the extent expressly referenced in an executed Order Document or written amendment.
18.2 Assignment. Neither party may assign the Agreement or any of its obligations, rights or remedies, in whole or in part, without the other party’s prior written consent, which will not be unreasonably withheld or delayed. Either party may, however, assign the Agreement in its entirety on written notice to a successor in a merger, consolidation, or sale of all or substantially all of its assets or equity, if the successor (i) is located within the fifty (50) states of the United States or the District of Columbia and (ii) legally assumes the Agreement and all obligations under it. Any other purported assignment is void. The Agreement binds and benefits the parties and their permitted successors and assigns.
18.3 Force Majeure. Either party’s performance failure due to a cause beyond its reasonable control and without its fault or negligence is not a breach of the Agreement, except failure to perform its payment obligations. Causes beyond a party’s reasonable control include severe weather, hurricane, flood, wildfire, earthquake, fire, epidemic, civil disturbance, acts of government, and failure or interruption of electrical power, internet, cellular, or telecommunications service. Customer acknowledges that such events may impair or prevent the availability and performance of the Services and the generation and delivery of Events, and that Eolas does not warrant operation of the Services during any such event.
18.4 Governing Law; Venue. The laws of the State of Delaware govern the Agreement, excluding conflict of law principles. EACH PARTY HEREBY IRREVOCABLY WAIVES THE RIGHT TO JURY TRIAL FOR ANY LEGAL ACTION, SUIT OR PROCEEDING IN LAW OR EQUITY ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Exclusive venue for any action arising out of or in connection with this Agreement will be in the state or federal courts located in the State of Delaware. The parties each hereby consent to the jurisdiction and venue of those courts and waive any objection to that jurisdiction and venue, including any objection based on inconvenient forum.
18.5 Compliance with Laws; Export. Customer must comply with all Applicable Laws, including those related to data privacy, telecommunications, transmission of technical or personally identifiable information, and spam; the U.S. Foreign Corrupt Practices Act and other anti-corruption laws; U.S. Export Administration and Treasury Department’s Office of Foreign Assets Control regulations; and other anti-boycott and import regulations. Customer agrees not to engage in any Prohibited Uses. Customer is responsible for screening for Prohibited Uses and obtaining any required licenses, governmental approval, or other authorizations and will indemnify Eolas for any violation by Customer or a Site of any applicable export controls, telecommunications, and economic sanctions laws and regulations. Eolas may terminate the Agreement and Licenses immediately if Eolas determines, in its sole discretion, that Customer has breached, intends to breach, or insists upon breaching any of the provisions in this Section 18.5.
18.6 No Agency. Each party is an independent contractor and may not commit the other party in any way without written authorization. The Agreement does not create an employment, joint venture, partner, or agency relationship.
18.7 Notice. Notice or approval must be in writing signed by a party’s authorized representative, sent, in the case of notice to Eolas, by email to help@eolas.co or by mail or overnight courier to the address stated on the Master Subscription Agreement signature form or Order Document, and, in the case of notice to Customer, to the notice email address or address stated in the Order Document or Master Subscription Agreement signature form, or in either case to another address a party specifies in writing for notice; notice by mail or courier must be sent with return receipt, and is effective one (1) business day after being sent by overnight courier, three (3) business days after being sent by mail, or upon transmission if sent by email, absent an automated delivery-failure notice. An election, suspension of deletion, release of a suspension, designation, confirmation, or similar action that the Services allow Customer to take, taken through the Services by a User Customer has authorized for it, is written notice for purposes of the Agreement, and the record the Services keep of it is the record of that notice; this sentence applies to a release under Section 2.3(g) as that Section provides and to termination of the Subscription Service for a Site under Section 9.1, and does not apply to an amendment of the Agreement, a notice of breach, or termination of the Agreement or of a Master Subscription Agreement signature form.
18.8 Delay in Performance. If Eolas’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or Sites or their agents, subcontractors, consultants or employees, Eolas will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer or Site, in each case, to the extent arising directly or indirectly from such prevention or delay, and Eolas’s obligation to perform will be extended by the same number of days as Customer’s or Site’s contingent action is delayed.
18.9 Updates to these Customer Terms. Eolas may update these Customer Terms from time to time by posting the updated version at eolas.co/terms/customer and updating the “Last Updated” date above. An update takes effect at the start of the first Subscription Term or renewal Subscription Term that begins after the update is posted, except that Eolas will provide at least thirty (30) days’ advance notice (which may be given by email, invoice message, or in-product notice) of any update that materially diminishes Customer’s rights or materially increases Customer’s obligations, and Customer may, as its exclusive remedy for such an update, terminate the Agreement by written notice before the update takes effect and receive a refund of any prepaid Subscription Fees for the period after the effective date of termination. Eolas may apply an update during a then-current Subscription Term where Applicable Law or a material security risk requires it, on the notice stated above and with the same termination and refund right. If Customer has executed a Master Subscription Agreement signature form, the Customer Terms version provisions of that form control.
18.10 No Third-Party Beneficiaries. This Agreement is entered into for the benefit of the parties, the Sites, and any person expressly identified as a third-party beneficiary in an addendum, and their respective permitted successors and assigns. Nothing in this Agreement, express or implied, confers any right, benefit, or remedy on any other person or entity.
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