I. Augmodo Service. Augmodo agrees to provide Customer with access to its proprietary spatial AI technology, including, but not limited to, its product trademarked as Spatialview (“Augmodo Service”), which enables Customer to access and track real-time data and trends related to Customer’s products sold through retailers, each of which is designated in the applicable order form (each, an “Order Form” along with these General Terms and Conditions, the ”Agreement”). The parties shall execute an initial Order Form and may execute others from time to time, all of which form a single Agreement using the terms of conditions of the current version of these General Terms and Conditions.
II. Grant of License. During the period set forth in each Order Form for the applicable retailer, Augmodo grants Customer a non-exclusive, limited license to use the software in connection with the Augmodo Service (“Software”) solely for Customer’s internal business purposes at the sites and number of users set forth in the Order Form. Any rights not expressly granted by Augmodo to Customer are reserved by Augmodo, and all implied licenses are disclaimed. Without limiting the foregoing, Customer shall not (a) copy, modify, reverse engineer, decompile, translate, disassemble, and/or create derivative works (except to the extent such restriction is expressly prohibited by applicable law), (b) sublicense, lease, rent, assign, resell, lease, pledge, sell and/or distribute (including granting third parties the right to market, co-brand, link, frame and/or private label the Augmodo Technology (as defined in Article III) and/or services), (c) access the Augmodo Technology in a manner intended to avoid incurring fees and/or in a manner other than a commercial browser in the manner described in the applicable documentation, and/or (d) use the Augmodo Technology to compete with Augmodo or to develop a competitive product and/or service.
III. Ownership of Technology. Customer represents that Customer has all right, title and interest in, or if applicable, licenses to, the Customer data and content it uses in connection with the Augmodo Technology and Customer trademarks (“Customer Technology,” in context “Technology”). Augmodo represents that Augmodo has all right, title and interest in, or if applicable, licenses to, the Augmodo’s Software, Augmodo Service, its trademarks and any materials or content developed by Augmodo while performing under this Agreement (“Augmodo Technology,” in context “Technology”). At all times during the Term (as defined herein), Customer shall ensure that the Customer Technology and the software and hardware that it uses in connection with the Augmodo Technology satisfies the system requirements that Augmodo publishes from time to time, which requirements may be amended from time to time by Augmodo in its sole discretion with or without notice to Customer.
IV. Term. This Agreement shall commence on the date on which the initial Order Form is executed (“Effective Date”) and shall continue for the period set forth in the last Order Form (“Term”), unless terminated earlier in the manner set forth herein. This Agreement shall terminate with respect to a retailer designated on an Order Form if Augmodo no longer contracts with such retailer. Augmodo may terminate this Agreement (including all Order Forms) by providing at least sixty (60) days advance written notice to Customer. Those provisions that by their nature survive shall survive termination of this Agreement. All other rights and obligations of the parties shall cease upon termination including, but not limited to, all licenses granted hereunder.
V. Fees. Customer shall pay Augmodo the fees in USD on the payment dates set forth on the applicable Order Form. If there is no such payment date, then Customer shall pay Augmodo within thirty (30) days following Customer’s receipt of Augmodo’s invoice. Any failure by the Customer to pay Augmodo according to the terms of this Agreement shall entitle Augmodo, without prejudice to its other rights and remedies under this Agreement, to: (i) charge interest on a daily basis from the original due date at the rate of 1.5% per month, (ii) suspend the provision of the Augmodo Service, and (iii) reimbursement for all reasonable costs incurred by Augmodo in collecting past due amounts. All of the foregoing payments exclude applicable sales, value-added, use or other taxes and obligations, all of which Customer shall pay in full, except for taxes based on Augmodo’s net income.
VI. Confidentiality. At all times during the Term and thereafter, each party shall keep confidential and not disclose, directly or indirectly, and shall not use for the benefit of itself or any other individual or entity any Confidential Information of the other party. The receiving party shall keep confidential and not disclose the disclosing party’s Confidential Information using the same degree of care used to protect its Confidential Information, but not less than a reasonable degree of care. “Confidential Information” means any trade secrets or confidential or proprietary information whether written, digital, oral or other form which is unique, confidential or proprietary to the disclosing party, including, but not limited to, the terms and conditions of the Agreement, each party’s Technology, and any other materials or information related to the business or activities of the disclosing party which are not generally known to others engaged in similar businesses or activities. The receiving party shall notify the disclosing party immediately in writing upon discovery of any unauthorized, or threat of unauthorized, use or disclosure of Confidential Information, or any other breach of this Agreement by receiving party and will cooperate with the disclosing party in every reasonable way to help disclosing party regain possession of the Confidential Information and prevent its further unauthorized use. Each party shall return to the disclosing party any of the disclosing party’s Confidential Information upon written request and/or upon termination of this Agreement. Neither party shall issue a press release regarding this relationship without the other party’s prior written approval. To the extent that the receiving party maintains regular back-ups or centralized retention of electronically stored information (collectively, “ESI”), the receiving party may retain ESI as necessary to comply with applicable laws and receiving party’s existing retention policies regarding ESI, in which cases, such information shall continue to be subject to the restrictions set forth herein.
VII. Indemnity. If any claim is asserted against one party (“Indemnitee”) that the Technology of the other party (“Indemnitor”) infringes the intellectual property rights in the United States of America of any third party, the Indemnitee shall promptly advise the Indemnitor in writing of such claim, and the Indemnitor shall have the right to elect to control the defense of such claim with counsel of Indemnitor’s choosing, and to the extent Indemnitor so elects to defend, the Indemnitee shall cooperate fully in the defense thereof and furnish to the Indemnitor all evidence and assistance in Indemnitee’s control. If the Indemnitor controls the defense or in its sole discretion elects not to control the defense but is determined to have so infringed, the Indemnitor shall indemnify the Indemnitee from and against any and all liability, damages, and reasonable costs (not including attorneys’ fees incurred by the Indemnitee in monitoring or participating in any defense provided by Indemnitor) incurred by Indemnitee as a result of any such claim or any resulting judgment or settlement.
VIII. Limited Warranty. AUGMODO SPECIFICALLY DISCLAIMS WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM TRADE USAGE OR COURSE OF CONDUCT, ANY AND ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE AUGMODO TECHNOLOGY OR ITS PERFORMANCE HEREUNDER.
IX. Default. This Agreement shall be terminated at the option of the non-defaulting party, by written notice thereof to the defaulting party, specifying in reasonable detail the reason for termination, if (i) the defaulting party breaches or otherwise fails to perform or comply in a material respect with a material obligation or covenant, and such breach or failure is not cured to the non-defaulting party’s reasonable satisfaction within thirty (30) days of receipt of such notice, or (ii) the defaulting party fails to comply strictly with the provisions of Articles II, III or VI.
X. Limitation of Liability. IN NO EVENT SHALL AUGMODO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OF ITS TECHNOLOGY OR PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, EVEN IF AUGMODO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AUGMODO’S OBLIGATION TO INDEMNIFY CUSTOMER PURSUANT TO ARTICLE VII, AUGMODO’S AGGREGATE MAXIMUM LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR OTHERWISE PAYABLE TO AUGMODO BY CUSTOMER.
XI. Maintenance, Security & Privacy.
(a) Customer shall be responsible for providing end users with first line support and may escalate technical support questions or problems to Augmodo at Customer’s sole discretion. Augmodo agrees to provide Customer, at no charge, with any and all updates to the Augmodo Technology that are made available at no charge to the other Augmodo customers.
(b) Customer is solely responsible for making sure each of its authorized users (“End User”) use of the Augmodo Technology complies with the terms and conditions of the Augmodo terms of use agreement (located at www.augmodo.com/spatialviewaccess) as updated from time to time by Augmodo (“AUP”). Customer agrees to notify Augmodo in writing immediately of any breach of this Agreement, the AUP and/or any unauthorized use of the Augmodo Technology or other breach of its security. Augmodo has no obligation to monitor the use of the Augmodo Technology. During the Term, Augmodo may view, review or otherwise analyze the data stored, inputted or otherwise collected by the Augmodo Technology for maintenance, system administration, technical support, and for any other purpose necessary for Augmodo to perform under this Agreement and/or to comply with applicable laws and regulations. If, in Augmodo’s sole discretion, Augmodo determines that there may be or is an emergency security issue, then Augmodo may automatically suspend the Customer’s and/or End Users’ access and use of the Augmodo Technology. Suspension will be to the minimum extent required, and for the minimum duration, to prevent or terminate such issue. If Augmodo suspends the Customer’s or an End User’s account, at Customer’s request, Augmodo will provide Customer the reason for the suspension as soon as is reasonably possible.
(c) As between the parties, Augmodo will be deemed the data controller of any personal identifiable information collected by the Augmodo Technology and Augmodo’s use of such information shall be subject to Augmodo’s then current privacy policy displayed from within the Augmodo Technology.
XII. Miscellaneous.
(a) This Agreement (along with any applicable Order Form) constitutes the entire understanding and agreement of the parties, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to its subject matter. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument.
(b) No delay or failure by either party to exercise or enforce at any time any right or provision hereof will be considered a waiver thereof. No single waiver will constitute a continuing or subsequent waiver. No waiver, modification or amendment of any provision hereof will be effective unless it is in a signed writing by the parties.
(c) Neither party may assign its rights or obligations hereunder (including as a change of control) without the prior written consent of the other party except in the case where a party assigns this Agreement to an affiliate or to a party that purchases all or substantially all of the assigning party’s assets by way of stock or asset sale. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and permitted assigns of the parties.
(d) This Agreement shall be governed and construed in all respects by the laws of the State of Delaware. The parties agree that the exclusive jurisdiction and venue of any dispute amongst the parties shall be entered in the state or federal courts within the State of Delaware and each of the parties hereby waives any right to a trial by jury. The prevailing party in any action to enforce this Agreement shall be entitled to recover reasonable costs and expenses including, without limitation, reasonable attorneys’ fees.
(e) If any provision of this Agreement or the application thereof to any party or circumstance is held to be invalid, illegal, or unenforceable in any respect, that provision to the extent permitted by law (not otherwise) shall be severed from this Agreement and shall not affect the remainder hereof, and the parties agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision.
(f) The parties to this Agreement are independent contractors.
(g) Neither party shall be liable to the other for a failure to perform any of its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed due to circumstances beyond its reasonable control.
(h) All notices hereunder must be in writing and mailed by certified mail, return receipt requested, or by prepaid courier service, or by telecopier with receipt confirmed by telephone, to each party’s address first set forth in the Order Form.