AVIGILON CORPORATION

AVIGILON UNITY SOFTWARE

END USER LICENSE AGREEMENT

Effective August 15, 2023

This End User License Agreement (the “Agreement”) between Avigilon Corporation, and affiliated companies (“Avigilon”, “We”), as licensor of the Software (as defined below), and you (being the person or other legal entity that is the end user and licensee of the Software and Services) (“You” or “Your”) governs Your use of the Software. The term “Software” means: (a) the Avigilon Unity software accompanying, or being used in association with, this Agreement, including computer software, and any modified versions and copies of, and upgrades, updates, and additions to, such software; and (b) any media, printed materials, and “on-line” or electronic documentation with respect to such software (the “Documentation”)  The term “Services” means security services related to the Software.  The Software and Services are collectively referred to as the “Software and Services”.

By breaking the seal on the package containing the Software, or downloading, installing, copying or otherwise using the Software or Services, You agree to be bound by the terms of this Agreement. If You do not agree to all of the terms and conditions of this Agreement, do not open, download, install, copy, or otherwise use the Software or Services.

  1. Grant of License.
  1. Software License. Subject to the payment of all license fees to Avigilon or a reseller, as applicable, and as long as You comply with the terms of this Agreement, Avigilon grants You a limited, non-exclusive license to use the Software in object code form only in the manner and for the purposes described in this Agreement and the Documentation. Your use of the Software is subject to the following principal conditions:
  2. i.  Subject to the limitations on the use of the Software’s server application (the “Server Application”) set forth in Section 1(b), You may install the Software on any number of computers at Your premises.
  4. ii. Components of the Software that are protected by a software or hardware key or other device may be used on any computer, or cluster of servers forming the Site, on which the key is installed and activated. If the key locks the Software to a particular computer, or cluster of servers configured to work together (a “Site”), the Software may only be used on that computer or cluster of servers, as applicable. You agree that You will not attempt to circumvent the mechanisms that bind software or hardware keys to a particular computer or cluster of servers forming a Site.
  6. ii. You acknowledge that You must activate the Software with Avigilon and that there may be instances where You are required to subsequently reactivate the Software when You make certain hardware changes or configuration changes to the Software.
  1. Access to Services. If applicable, subject to your compliance with the terms and conditions of this Agreement and payment of fees as set out in an order form, or similar documentation, pursuant to which you subscribe to the Services through either us or one of our authorized resellers (“Order Form”), Avigilon hereby grants You a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services during the Term solely for your use by you and your employees, consultants, contractors, and agents (i) who are authorized by you to access and use the Services under the rights granted to you pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder (“Authorized Users”), for internal business operations.  Subject to your continued payment of all license and subscription fees applicable to your use of the Services, and subject to continued compliance with this Agreement by you and your Authorized Users, we shall use commercially reasonable efforts to make the Services available 24-hours a day, seven days a week, except for (i) planned downtime, where we will provide you with eight hours advance notice; and (ii) temporary unavailability resulting from circumstances beyond our reasonable control, in which instance we shall provide you with notice of such unavailability as soon as is reasonably practicable following such event.
  2. Payment of Fees.  If applicable, You shall pay us or the reseller, as applicable, the fees (“Fees”) in the amounts and in the manner set forth in applicable Order Forms.
  3. Audit. Avigilon will have the right to conduct an audit of total user licenses credentialed by You for any Software or Services, and You will cooperate with such audit. If Avigilon determines that Your usage of the Software or Services exceeded the total number of licenses purchased by You, Avigilon or its reseller may invoice You for the additional licenses used by You, pro-rated for each additional license from the date such license was activated, and You will pay such invoice.
  1. Backup Copy. You may make a reasonable number of copies of the Software to be used solely for archival, back-up, or disaster recovery purposes; provided that You may not operate that copy of the Software at the same time as the original Software is being operated.
  2. Intellectual Property Rights. The Software and Services are licensed, not sold, to You. The Software and Services and any authorized copies of the Software that You make are the intellectual property of, and are owned by, Avigilon and, as applicable, its suppliers and licensors. The structure, organization and code of the Software and Services are valuable trade secrets and confidential information of Avigilon and, as applicable, its suppliers and licensors. The Software and Services are protected by law, including but not limited to the copyright laws of the United States, Canada, and other countries, and by international treaty provisions. Except as expressly stated in this Agreement, this Agreement does not grant You any intellectual property rights in the Software and Services, and all rights not expressly granted in this Agreement are reserved by Avigilon and, as applicable, its suppliers and licensors. This Agreement does not grant You any rights in connection with any trademarks of Avigilon.  If you or any of your employees, contractors, or agents (“your representatives”) send or transmit any communications or materials to us suggesting or recommending changes to the Software or Services, including without limitation, new features or functionality relating thereto, or including any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your representatives to assign to us on their behalf, all right, title, and interest in any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, without any attribution or compensation to you, your representatives, or any third party. 
  3. Limitations and Restrictions.

  1. Copy Protections. You may not copy the Software except as set forth in this Agreement. Any permitted copy of the Software that You make must contain the same copyright and other proprietary notices and legends that appear on or in the Software.
  2. Restrictions. You may not: (i) rent, lease, sell, reproduce, sublicense, pledge, assign, lend, resell for profit, or otherwise transfer, or encumber rights to the Software and Services, or distribute the Software and Services or Your rights in the Software and Services; (ii) authorize any portion of the Software to be copied onto another person’s or legal entity’s computer or other electronic device, except as set forth in this Agreement; or (iii) disclose any password or access protocols in respect of the Software or Services to any person (except as between you and your Authorized Users) or otherwise allow any person other than your Authorized Users to gain access to the Software or Services; (iv) use the Software and Services in violation of the rights of any third party, including third party intellectual property rights; (v) interfere with or disrupt the integrity, availability, reliability, or performance of the Services or the data contained therein; (vi) store or transmit malicious code; (vii) launch or facilitate, whether intentionally or unintentionally, a denial of service attack on any of the Services, its users, or us; or (vii) attempt to gain unauthorized access to the Services, computer systems, or networks related to the Services.  You will take reasonable steps to prevent any unauthorized copying or  distribution of, or access to, the Software and Services.
  3. Locally Stored Components. The Software may include a software code component that may be stored and operated locally on one or more of Your devices. Once You have paid the required license fees for these devices (as determined by Avigilon in its sole discretion), You may install, use, or install and use, one copy of such component of the Software on each of the devices as licensed by Avigilon. You may then use such component of the Software in connection with operating the device on which it is installed solely in the manner set forth in any accompanying Documentation or, in the absence of such, solely in the manner contemplated by the nature of the Software.
  4. Embedded Software/Firmware. The Software may also include a software code component that is resident in a device as provided by Avigilon for operating that device. You may use such component of the Software solely in connection with the use of that device, but may not retrieve, copy or otherwise transfer that software component to any other media or device without Avigilon’s express prior written authorization.
  5. Modifications and Derivative Works. You may not make any changes, translations, enhancements, or modifications to, or create any derivative works from, the Software and Services or any portion of the Software and Services without the prior written permission of Avigilon (except as provided in Section 21 of this Agreement with respect to ‘open source’ software). Any attempt to create any derivative works from the Software and Services or any portion of the Software and Services without the prior written permission of Avigilon (except as provided in Section 21 of this Agreement with respect to ‘open source’ software) shall result in the immediate termination of this Agreement.
  6. Reverse Engineering, Decompilation, Disassembly. You may not reverse engineer, peel components, decompile, disassemble or otherwise reduce the Software or any portion to a human perceptible form or otherwise attempt to recreate the source code of the Software, and any attempt to do so shall result in the immediate termination of this Agreement, except and only to the extent that such activity is expressly permitted by applicable law.
  7. Competitive Products. You will not use any information concerning the Software and Services or any of its components or features to design, build, train, or improve (directly or indirectly) a product or service that competes with the Software and Services or any of its components or features.
  8. Account Use. You are responsible and liable for all uses of the Software and Services resulting from access provided by You, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. You are responsible for all acts and omissions of Authorized Users, and you will be deemed to have breached this Agreement if an Authorized User takes an act or omission that, if instead were taken by you, would constitute a breach of this Agreement. You shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Software and Services and shall cause Authorized Users to comply with such provisions.
  9. Your Data. You hereby grant to us a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display any data or content, including but not limited to (i) audio and video files and data, that you or your Authorized Users generate, collect, record, transmit, or store in connection with their use of the Services; (ii) any system or Services setup, configuration, usage or performance data, including but not limited to the names and contact information for you and your Authorized Users, that you or your Authorized Users generate, collect, record, transmit, or store in connection with use of the Services; and (iii) any data, content, or other information that you or your Authorized Users provide to us for customer or technical support purposes (the “Customer Data”) and to perform all acts with respect to the Customer Data as may be necessary for us to provide the Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the data and information related to your use of the Services and/or information compiled from Customer Data that we may use in an aggregate and anonymized manner (collectively, the “Aggregated Statistics”).
  10. Passwords and Access Credentials. You are responsible for keeping Your passwords and access credentials associated with the Services confidential and to manage your account according to the requirements set forth in the Documentation.
  11. Contact Information. You are responsible for providing us with correct contact information for your account, updated as necessary from time to time during the Term.
  12. Beta Services. If Avigilon makes any beta version of a software application or services (“Beta Service”) available to You, You may choose to use such Beta Service at Your own discretion, provided, however, that You will use the Beta Service solely for purposes of Your evaluation of such Beta Service, and for no other purpose. You acknowledge and agree that all Beta Services are offered “as-is” and without any representations or warranties or other commitments or protections from Avigilon. Avigilon will determine the duration of the evaluation period for any Beta Service, in its sole discretion, and Avigilon may discontinue any Beta Service at any time. You acknowledge that Beta Services, by their nature, have not been fully tested and may contain defects or deficiencies.
  13. Acceptable Use Policy.  You, and Your Authorized Users, will comply with Motorola Solutions Inc.’s Acceptable Use Policy at https://www.motorolasolutions.com/en_us/about/legal/motorola-solutions-customer-terms/acceptable-use-policy.html.
  1. Termination and Suspension.
  1. Termination.  Termination. In addition to any other express termination right set forth in this Agreement:
  1.   either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or
  2.  either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  3.  without prejudice to any other rights, Avigilon may terminate this Agreement without notice if You fail to comply with the terms and conditions of this Agreement.  You acknowledge that Avigilon made a considerable investment of resources in the development, marketing, and distribution of the Software and Services, and that Your breach of the Agreement will result in irreparable harm to Avigilon for which monetary damages would be inadequate. If You breach this Agreement, in addition to termination, Avigilon will be entitled to all available remedies at law or in equity (including immediate injunctive relief).
  1. Services Term. If applicable, the term of this Agreement with respect to the Services begins on the date You receive credentials required for access to the Services, or upon Avigilon otherwise providing access to the Services, or as set out in the applicable Order Form, whichever is earliest (the “Effective Date”) and continues until the date set out in the applicable Order Form, unless terminated earlier pursuant to this Agreement (the “Term”).
  2. Effect of Termination. Upon termination of your subscription for or access to the Services: (i) you and your Authorized Users must immediately discontinue all use of the Services; (ii) you must promptly pay all remaining amounts, if any, due and payable under the applicable Order Form(s); and (iii) we will cease providing the Services to you and your Authorized Users.  In the event of termination of this Agreement for any reason, You must immediately destroy all copies of the Software (including backup copies) and all of its component parts. To the extent the Software is embedded in hardware or firmware, You will provide prompt access to Avigilon or its representatives to remove or lock Software and Services features or functionality as Avigilon determines. The provisions of this Agreement which, by their terms, require performance after termination of this Agreement, including but not limited to those contained in Sections 3 (Intellectual Property Rights), 5 (Termination), 13 (Exclusive Remedy), 14 (Limitation of Liability), 16 (Indemnity by You) and 20 (Jurisdiction), will survive the termination of this Agreement.  
  3. Access to Customer Data. We will not delete Subscriber Data for a period of 60 days following termination of the Services (the “Post -Termination Retention Period”). During the Post-Termination Retention Period you may retrieve Customer Data only if you have paid all amounts due under this Agreement. We will make the Customer Data available to you in a non-proprietary format and assist you with retrieval during the Post-Termination Retention Period. You agree to pay our reasonable expenses, on a time and materials basis, for the assistance we provide in assisting you with retrieval of the Customer Data. WE HAVE NO OBLIGATION TO MAINTAIN THE CUSTOMER DATA BEYOND THE POST-TERMINATION RETENTION PERIOD, AND WE MAY THEREAFTER DELETE THE CUSTOMER DATA, UNLESS LEGALLY PROHIBITED FROM DOING SO, OR UNLESS AN EXTENSION OF THE POST-TERMINATION RETENTION PERIOD IS AGREED TO. Upon your request and provided that you have paid all amounts due under this Agreement, we may agree to a reasonable extension of the Post-Termination Retention Period. If we are legally prevented from deleting the Customer Data beyond the Post-Termination Retention Period you agree to pay all costs associated with continued storage until the Customer Data is either deleted or retrieved by you.  
  4. Suspension. Notwithstanding anything to the contrary in this Agreement, we may temporarily suspend Your access and any Authorized User's access to any portion or all of the Services if: (i) we reasonably determine that (A) there is a threat or attack on any of the Services; (B) use of the Services disrupts or poses a security risk to us, any third party or to any other subscriber or vendor; (C) the Services are used for fraudulent or illegal activities; (D) subject to applicable law, You have ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) there is a breach of our Acceptable Use Policy; (F) our provision of the Services to you or any Authorized User is prohibited by applicable law; or (ii) any vendor of ours has suspended or terminated our access to or use of any Third-Party Products required to enable you to access the Services.
  5. Effect of Suspension. Upon any restriction or suspension of your access to the  Services for your failure to comply with this Agreement, until the causal factor of any such restriction/suspension is rectified to our satisfaction: (i) you and you Authorized Users must immediately discontinue all use of the Services (except as we may otherwise specifically permit pursuant to the terms of such restriction/suspension); (ii) to the extent within your reasonable control, you must promptly rectify the causal factor of the restriction/suspension; and (iii) we will, in our discretion, cease providing the Services (or portion thereof) to you and your Authorized Users.
  1. Export Restrictions. You, Your employees, and any other Authorized Users will not access or use the Software and Services in any jurisdiction in which the provision of such Software and Services is prohibited under applicable laws or regulations (a “Prohibited Jurisdiction”), and You will not provide access to the Software and Services to any government, entity, or individual located in a Prohibited Jurisdiction. You represent and warrant that (a) You and Your Authorized Users are not named on any U.S. government list of persons prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You and Your Authorized Users are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You will not permit Your Authorized Users to access or use the Software or Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You and Your Authorized Users will comply with all applicable laws regarding the transmission of technical data exported from the U.S. and the country in which You, Your employees, and the Authorized Users are located.
  2. Applicable Laws. Some jurisdictions prohibit, restrict or provide requirements for the recording and processing of audio, video, personal information, or any combination of audio, video and personal information, under certain circumstances. You agree that You will at all times use the Software and Services in conformity with all applicable laws, statutes, ordinances, and rules of each of: (a) the jurisdiction(s) in which You use the Software and Services; and (b) the jurisdiction(s) in which each camera, microphone, or other recording or security device which provides data to You through the Software and Services is located. Any breach of the foregoing is a material breach of this Agreement that operates to terminate the license for the Software and Services immediately without notice, rendering any further use of the Software unlawful.  
  3. Support Services. Avigilon may provide You with support services related to the Software (“Support Services”). Any supplemental software files (either Avigilon or third party) and other computer information and related explanatory written materials and files provided to You as part of the Support Services are considered part of the Services and subject to the terms and conditions of this Agreement.
  4. Upgrades and Updates. To the extent Avigilon makes them available, Software upgrades and updates may only be used to replace all or part of the original Software that You are licensed to use. Software upgrades and updates do not increase the number of copies of the Software licensed to You. If the Software licensed under this Agreement is an upgrade or update of a component of a package of software programs that You previously licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer unless and to the extent that You are licensed to use the previously licensed software on more than one computer. Software upgrades and updates downloaded free of charge via an Avigilon authorized World Wide Web or FTP site may be used to upgrade multiple computers provided that You are licensed to use the original software being upgraded or updated on those computers. Upgrades and updates to the Software and Services may be licensed to You by Avigilon with additional or different terms.  You are responsible for downloading and installing the current version of the updated Software for installation on a client, as such Software may be updated from time to time.  Avigilon will use reasonable efforts to continue supporting the replaced Software for forty-five (45) days following the release of an update, but Avigilon may update the current version of the client Software at any time, including for bug fixes, product improvements, and feature updates, and Avigilon makes no representations or warranties that any Software will support prior versions of the client Software.

You acknowledge and agree that we have the right, in our sole discretion, to modify the Services from time to time. You will be notified of changes to the Services when you first access the Services after such a change is made. You will be required to accept the changes to continue to use the Services. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. We will use reasonable efforts to provide advance notice of modifications to the Services that we reasonably believe are material by placing a notice on the Avigilon.com website, notifying you through the Services, by sending you an email, or by some other means. Notwithstanding the foregoing, from time to time we may develop updates, upgrades, patches, bug fixes, or other modifications to improve the performance of the Services or for other purposes at our sole discretion. You agree that we may automatically install such updates, upgrades, patches, bug fixes, or other modifications without providing any additional notice to you or receiving any additional consent from you.

  1. U.S. Government License Rights. This Section 10 only applies to U.S. Government end users.  The Software and Services and Documentation are commercial items as that term is defined at 48 C.F.R. Part 2.101, consisting of “commercial computer software” and “computer software documentation” as such terms are defined in 48 C.F.R. Part 252.227-7014(a)(1) and 48 C.F.R. Part 252.227-7014(a)(5), and used in 48 C.F.R. Part 12.212 and 48 C.F.R. Part 227.7202, as applicable.  Consistent with 48 C.F.R. Part 12.212, 48 C.F.R. Part 252.227-7015, 48 C.F.R. Part 227.7202-1 through 227.7202-4, 48 C.F.R. Part 52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, the Software and Services  and Documentation are distributed and licensed to U.S. Government end users: (i) only as commercial items, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions contained herein.
  2. Transfer. You may only transfer Your rights under this Agreement: (a) as part of a permanent sale or transfer of all of the devices for which the Software is licensed; (b) if You transfer all of the Software (including all component parts, the media and printed materials, and any upgrades), and this Agreement; (c) if You do not retain any copies of any portion of the Software; (d) if the recipient agrees to the terms of this Agreement; and (e) if the Software is an upgrade, such transfer also includes all prior versions of the Software. Satisfaction of all these conditions is required; failure to meet any of these conditions renders such transfer null and void.
  3. Warranties. Avigilon warrants that the medium on which the Software is recorded, and any software or hardware key associated with the Software, will be free of defects in materials and workmanship under normal use for a period of sixty (60) days from the date of Your receipt of the original Software licensed under this Agreement.

You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Services are in compliance with this Agreement.

EXCEPT AS PROVIDED ABOVE, AND TO THE MAXIMUM EXTENT PROVIDED BY LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE AND SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE AND ACCURACY IS WITH YOU AND AVIGILON AND ITS SUPPLIERS AND LICENSORS PROVIDE THE SOFTWARE AND SERVICES “AS-IS” AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF: (A) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, OR INFORMATIONAL CONTENT; (C) WORKMANLIKE EFFORT; (D) CORRESPONDENCE TO DESCRIPTION; (E) TITLE OR NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; (F) CUSTOM OR TRADE; (G) QUIET ENJOYMENT; OR (H) SYSTEM INTEGRATION. AVIGILON MAKES NO WARRANTY THAT ANY PORTION OF THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY DEFECTS, OR IN AN UNINTERRUPTED MANNER. AVIGILON SHALL NOT BE RESPONSIBLE FOR PROBLEMS CAUSED BY CHANGES IN THE OPERATING CHARACTERISTICS OF THE DEVICE(S) UPON WHICH THE SOFTWARE IS OPERATING, OR FOR PROBLEMS IN THE INTERACTION OF THE SOFTWARE AND SERVICES WITH NON-AVIGILON SOFTWARE OR HARDWARE PRODUCTS. AVIGILON NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON PURPORTING TO ACT ON ITS BEHALF TO MODIFY OR TO CHANGE THIS WARRANTY, NOR TO ASSUME FOR AVIGILON ANY OTHER WARRANTY OR LIABILITY CONCERNING THE SOFTWARE AND SERVICES. THE WARRANTY MADE BY AVIGILON MAY BE VOIDED BY ABUSE OR MISUSE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS UNDER MANDATORY LAW THAT VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.

13.        Exclusive Remedy. The entire liability of Avigilon, its affiliates, and their respective directors, officers and employees (collectively, the “Avigilon Parties”) and Your exclusive remedy under the warranty set forth above will be, at Avigilon’s option, to: (a) attempt to correct Software errors with efforts Avigilon believes suitable to the problem; (b) replace at no cost the recording medium, Software or Documentation with functional equivalents as applicable, provided that You send Avigilon a replacement request, the defective medium and the documentation evidencing the date and amount You paid for the Software prior to the expiration of the sixty (60) day warranty period; or (c) refund a pro-rated portion of the license fee paid for such Software (less depreciation based on a two-year life expectancy) and terminate this Agreement, provided, in each case, that Avigilon is notified in writing of all warranty problems during the applicable warranty period. Any replacement item will be warranted for the remainder of the original warranty period. No remedy is provided for failure of the Software if such failure is the result of accident, abuse, alteration or misapplication with respect to the Software or any hardware on which it is loaded. Warranty service or assistance may be provided remotely.

14.        Limitation of Liability.

  1. DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT FOR PERSONAL INJURY OR DEATH, AVIGILON, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “AVIGILON PARTIES”) WILL NOT BE LIABLE IN CONNECTION WITH THIS AGREEMENT (WHETHER UNDER AVIGILON’S INDEMNITY OBLIGATIONS, A CAUSE OF ACTION FOR BREACH OF CONTRACT, UNDER TORT THEORY, OR OTHERWISE) FOR, ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR REVENUES, EVEN IF AVIGILON HAS BEEN ADVISED BY CUSTOMER OR ANY THIRD PARTY OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND WHETHER OR NOT SUCH DAMAGES OR LOSSES ARE FORESEEABLE.
  2. DIRECT DAMAGES. EXCEPT FOR PERSONAL INJURY OR DEATH, THE TOTAL AGGREGATE LIABILITY OF THE AVIGILON PARTIES, WHETHER BASED ON A CLAIM IN CONTRACT OR IN TORT, LAW OR EQUITY, RELATING TO OR ARISING OUT OF THE AGREEMENT WILL NOT EXCEED  THE TOTAL FEES PAID FOR THE SOFTWARE AND SERVICES TO WHICH THE CLAIM IS RELATED DURING THE CONSECUTIVE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FROM WHICH THE FIRST CLAIM AROSE.
  3. ADDITIONAL EXCLUSIONS.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AVIGILON WILL HAVE NO LIABILITY FOR DAMAGES ARISING OUT OF (A) CUSTOMER DATA, INCLUDING ITS TRANSMISSION TO AVIGILON, OR ANY OTHER DATA AVAILABLE THROUGH THE SUBSCRIPTION SOFTWARE OR SERVICES; (B) EQUIPMENT PROVIDED BY YOU, NON-AVIGILON CONTENT, YOUR SITES, OR THIRD-PARTY EQUIPMENT, HARDWARE, SOFTWARE, DATA, OR OTHER THIRD-PARTY MATERIALS, OR THE COMBINATION OF THE SOFTWARE OR SERVICES WITH ANY OF THE FOREGOING; (C) LOSS OF DATA OR HACKING, RANSOMWARE, OR OTHER THIRD-PARTY ATTACKS OR DEMANDS; (D) MODIFICATION OF SOFTWARE OR SERVICES BY ANY PERSON OTHER THAN AVIGILON; (E) RECOMMENDATIONS PROVIDED IN CONNECTION WITH OR BY THE SOFTWARE AND SERVICES; (F) DATA RECOVERY SERVICES OR DATABASE MODIFICATIONS; (G) INTERRUPTION OR FAILURE OF CONNECTIVITY, VULNERABILITIES, OR SECURITY EVENTS; (H) DISRUPTION OF OR DAMAGE TO YOUR OR THIRD PARTIES’ SYSTEMS, EQUIPMENT, OR DATA, INCLUDING DENIAL OF ACCESS TO USERS, OR SHUTDOWN OF SYSTEMS CAUSED BY INTRUSION DETECTION SOFTWARE OR HARDWARE; (I) AVAILABILITY OR ACCURACY OF ANY DATA AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR INTERPRETATION, USE, OR MISUSE THEREOF; (J) TRACKING AND LOCATION-BASED SERVICES; (K) BETA SERVICES; OR (L) YOUR OR ANY AUTHORIZED USER’S BREACH OF THIS AGREEMENT OR MISUSE OF THE SUBSCRIPTION SOFTWARE OR SERVICES.
  4. Voluntary Remedies. Avigilon is not obligated to remedy, repair, replace, or refund the purchase price for the disclaimed issues above, but if Avigilon agrees to provide Services to help resolve such issues, You will reimburse Avigilon for its reasonable time and expenses.
  5. Statute of Limitations. You may not bring any claims against an Avigilon Party in connection with this Agreement or the Software and Services more than one (1) year after the date of accrual of the cause of action.

15.        Indemnity by Avigilon. Avigilon will defend at its expense any suit brought against You to the extent it is based on a third-party claim alleging that the Software directly infringes a United States patent or copyright (“Infringement Claim”). Avigilon’s duties to defend and indemnify are conditioned upon: You promptly notifying Avigilon in writing of the Infringement Claim; Avigilon having sole control of the defense of the suit and all negotiations for its settlement or compromise; and You providing to Avigilon cooperation and, if requested by Avigilon, reasonable assistance in the defense of the Infringement Claim.  In addition to Avigilon’s obligation to defend, and subject to the same conditions, Avigilon will pay all damages finally awarded against You by a court of competent jurisdiction for an Infringement Claim or agreed to, in writing, by Avigilon in settlement of an Infringement Claim.

If an Infringement Claim occurs, or in Avigilon's opinion is likely to occur, Avigilon may at its option and expense: (a) procure for You the right to continue using the Software; (b) replace or modify the Software so that it becomes non-infringing while providing functionally equivalent performance; or (c) accept the return of the Software and grant You a credit for the Software, less a reasonable charge for depreciation. The depreciation amount will be calculated based upon generally accepted accounting standards.

Avigilon will have no duty to defend or indemnify for any Infringement Claim that is based upon: (a) the combination of the Software with any software, apparatus or device not furnished by Avigilon; (b) the use of ancillary equipment or software not furnished by Avigilon and that is attached to or used in connection with the Software; (c) Software designed or manufactured in accordance with Your designs, specifications, guidelines or instructions, if the alleged infringement would not have occurred without such designs, specifications, guidelines or instructions; (d) a modification of the Software by a party other than Avigilon; (e) use of the Software in a manner for which the Software was not designed or that is inconsistent with the terms of this Agreement; or (f) the failure by You to install an enhancement release to the Software that is intended to correct the claimed infringement. In no event will Avigilon’s liability resulting from its indemnity obligation to You extend in any way to royalties payable on a per use basis or Your revenues, or any royalty basis other than a reasonable royalty based upon revenue derived by Avigilon from You from sales or license of the infringing Software.

This Section 15 provides Your sole and exclusive remedies and Avigilon’s entire liability in the event of an Infringement Claim. You have no right to recover and Avigilon has no obligation to provide any other or further remedies, whether under another provision of this Agreement or any other legal theory or principle, in connection with an Infringement Claim. In addition, the rights and remedies provided in this Section 15 are subject to and limited by the restrictions set forth in Section.

16.        Indemnity by You. You will defend, indemnify and save harmless each of the Avigilon Parties from and against all actions, proceedings, demands, claims, liabilities, losses, damages, judgments, costs and expenses including, without limiting the generality of the foregoing, legal fees and disbursements actually incurred, together with all applicable taxes, which any such indemnified person under this Section 16 may be liable to pay or may incur by reason of, or directly or indirectly arising out of, any breach of this Agreement by You or any of Your directors, officers, employees, agents, or contractors, or on Your instructions, including, without limiting for foregoing, for any claims: (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates a third party's privacy or intellectual property rights; provided that you may not settle any Third-Party Claim against us unless we consent to such settlement, and further provided that we will have the right, at our option, to defend  against any such Third-Party Claim or to participate in the defense thereof by counsel of our own choice.

 17.        Confidentiality.

  1. Confidential Information. “Confidential Information” means any and all non-public information provided by one Party (“Discloser”) to the other (“Recipient”) that is disclosed under this Agreement in oral, written, graphic, machine recognizable, or sample form, being clearly designated, labeled or marked as confidential or its equivalent or that a reasonable businessperson would consider non-public and confidential by its nature. With respect to Avigilon, Confidential Information will also include the Services, as well as any other information relating to the Services. In order to be considered Confidential Information, information that is disclosed orally must be identified as confidential at the time of disclosure and confirmed by Discloser by submitting a written document to Recipient within thirty (30) days after such disclosure. The written document must contain a summary of the Confidential Information disclosed with enough specificity for identification purpose and must be labeled or marked as confidential or its equivalent.
  2. Obligations of Confidentiality. During the Term (as defined below) and for a period of three (3) years from the expiration or termination of this Agreement, Recipient will (a) not disclose Confidential Information to any third party, except as expressly permitted in this Section; (b) restrict disclosure of Confidential Information to only those employees (including, employees of any wholly owned subsidiary, a parent company, any other wholly owned subsidiaries of the same parent company), agents or consultants who must access the Confidential Information for the purpose of, and who are bound by confidentiality terms substantially similar to those in, this Agreement; (c) not copy, reproduce, reverse engineer, de-compile or disassemble any Confidential Information; (d) use the same degree of care as for its own information of like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information; (e) promptly notify Discloser upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement; and (f) only use the Confidential Information as needed to fulfill its obligations and secure its rights under this Agreement.
  3. Exceptions. Recipient is not obligated to maintain as confidential any information that Recipient can demonstrate by documentation (a) is publicly available at the time of disclosure or becomes available to the public without breach of this Agreement; (b) is lawfully obtained from a third party without a duty of confidentiality to Discloser; (c) is otherwise lawfully known to Recipient prior to such disclosure without a duty of confidentiality to Discloser; or (d) is independently developed by Recipient without the use of, or reference to, any of Discloser’s Confidential Information or any breach of this Agreement. Additionally, Recipient may disclose Confidential Information to the extent required by law, including a judicial or legislative order or proceeding.
  4. Ownership of Confidential Information. All Confidential Information is and will remain the property of Discloser and will not be copied or reproduced without the express written permission of Discloser (including as permitted herein). Within ten (10) days of receipt of Discloser’s written request, Recipient will return or destroy all Confidential Information to Discloser along with all copies and portions thereof, or certify in writing that all such Confidential Information has been destroyed. However, Recipient may retain (a) one (1) archival copy of the Confidential Information for use only in case of a dispute concerning this Agreement and (b) Confidential Information that has been automatically stored in accordance with Recipient’s standard backup or recordkeeping procedures, provided, however that Recipient will remain subject to the obligations of this Agreement with respect to any Confidential Information retained subject to clauses (a) or (b). No license, express or implied, in the Confidential Information is granted to the Recipient other than to use the Confidential Information in the manner and to the extent authorized by this Agreement. Discloser represents and warrants that it is authorized to disclose any Confidential Information it discloses pursuant to this Agreement.

18.        Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes any previous agreements between the parties, with respect to the subject matter of this Agreement. Any terms of any purchase order or other instrument issued by either party in connection with this Agreement that is in addition to or inconsistent with the terms of this Agreement shall have no force or effect unless signed by both parties.

19.        Amendment. Any amendment to this Agreement shall be put in writing and signed by both parties prior to being in effect. Notwithstanding the foregoing:

  1. Avigilon reserves the right to unilaterally amend this Agreement at any time without advance notice to You where the amendments involve (i) correcting typographical errors; (ii) correcting inconsistent, incorrect, or ambiguous wording for the purpose of clarifying the intended purposes and intent of the applicable wording (but without altering its nature or scope); or (iii) updating this Agreement to better address or comply with the provisions of applicable laws.
  2. This Agreement may be superseded by a subsequent End User License Agreement that You agree to in connection with Avigilon’s providing to You any future component, release, upgrade or other modification or addition to the Software.

20. Jurisdiction. All matters relating to or arising out of the Agreement are governed by the laws of the State of Illinois, unless Customer is the United States Government (or an agency thereof), in which case all matters relating to or arising out of the Agreement will be governed by the laws of the State in which the Software and Services are provided, and the courts in Cook County, Illinois and the courts of appeal therefrom will have exclusive jurisdiction to hear any proceedings relating to this Agreement.  The terms of the U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply.

21. Incorporation of ‘Open Source’ and other Third Party Software. Portions of the Software and Services may be subject to certain third party license agreements governing the use, copying, modification, redistribution and warranty of those portions of the Software, including what is commonly known as ‘open source’ software. No warranty is provided by Avigilon for any such third party software. By using the Software You agree to be bound to the terms of any such third party licenses. If provided for in the applicable third party license, You may have a right to receive source code for such open source software for use and distribution in any program that You create, so long as You in turn agree to be bound to the terms of the applicable third party license and Your programs are distributed under the terms of that license. If applicable, a copy of such source code may be obtained free of charge by contacting Your Avigilon representative.

22. Collection of Data. By Your acceptance of the terms of this Agreement, You agree that Avigilon may:

  1. collect, from time to time, information about the computer(s) on which You have installed or will be using the Software. This information represents a configuration of Your computer(s) but includes no personal information, information about other software or data on Your computer, or information about the specific make or model of Your computer(s). A hash of this information may be disclosed to a third party vendor, Flexera Software LLC (“Flexera”), to assist with management and enforcement of Your hardware and software keys. Avigilon may also disclose to Flexera Your business name, the business name from whom You purchased the Software, the name of the site on which the Software is installed, and the other hardware and software keys installed at that site (if any).  The information will be used solely to associate Your computer(s) with the hardware and software keys and to identify Your computer(s). The Flexera Privacy Policy can be found at: https://www.flexerasoftware.com/legal/privacy-policy.html.
  2. collect, or use a third party to collect (on Avigilon's behalf), from time to time, Your system configuration and system usage data. This information will be used only to further develop and improve the Software and Avigilon's associated products and services.  Avigilon shall not utilize or disclose this data in a form that personally identifies You.
  3. use third-party service providers, including cloud storage and transfer platforms, in conjunction with the Services (including, as applicable, the cloud computing and services platform created and hosted by Microsoft Corporation which we use as a means of providing the Cloud Service (or portions thereof) to you “Microsoft Azure”). Accordingly, any information, including personal information, that you or your Authorized Users collect in connection with the use of the Services may be processed in, and subject to the laws of jurisdictions other than the jurisdiction(s) where you or your Authorized Users are located, or where the personal information was originally collected. We do not represent or warrant that the Services are appropriate for use in any particular jurisdiction. By using the Services, you and your Authorized Users represent that you, and they, have provided appropriate notice of, and obtained appropriate consent to, the cross-border transfer and processing of any personal information that you or your Authorized Users collect, record, transmit, or store in connection with the Services, in accordance with the laws and regulations applicable to such transfers and processing.

Any personal information collected by Avigilon is subject to the Avigilon’s Privacy Statement, available at avigilon.com/privacy, as may be amended from time to time.  You further agree to comply with Microsoft Corporation’s then current Acceptable Use Policy (or similar or successor policy) applicable to Microsoft Azure, as currently included in the Online Service Terms applicable to Microsoft Azure, which are currently available at: https://www.microsoft.com/en-ca/Licensing/product-licensing/products.aspx.

Additional terms and conditions applicable to the Software and Services are set forth in the Avigilon Unified Global Data Processing Agreement at: https://www.avigilon.com/global-data-processing-agreement.  

23.        Demonstration and Evaluation Copies. A demonstration or evaluation copy of the Software and Services is covered by this Agreement, provided that the licenses contained in this Agreement expire at the end of the demonstration or evaluation period.

24.        Enurement. All covenants, representations, warranties and agreements of the parties contained in this Agreement will be binding upon and will enure to the benefit of the parties and their respective successors and assigns.

25.        Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, it shall be severed and the remaining provisions shall continue in full force and effect.

26.        Non-Waiver. The waiver or failure of Avigilon to exercise in any respect any right provided in this Agreement will not be deemed a waiver of any further right under this Agreement.

27.        Compliance with Licenses. You agree that upon request from Avigilon or its authorized representative, You will, within thirty (30) days of such request, fully document and certify that Your use of any and all Software and Services at the time of the request is in conformity with Your valid license(s) from Avigilon. You agree to use Your best efforts and to take all reasonable steps to safeguard the Software and Services to ensure that no unauthorized person shall have access thereto and that no unauthorized copy or distribution, in any form, of the Software shall be made.

28.        Additional Restrictions. The Software and Services may be subject to additional restrictions and conditions on use as specified in the Documentation, which additional restrictions and conditions are hereby incorporated into and made a part of this Agreement.

29.        Tools and Utilities. Software distributed via an Avigilon-authorized World Wide Web or FTP site (or similar Avigilon-authorized distribution means) as a tool or utility may be copied and installed without limitation provided that the Software is not distributed or sold and the Software is only used for the intended purpose of the tool or utility and in conjunction with Avigilon products. All other terms and conditions of this Agreement continue to apply.