Effective as of March 11th, 2019.
Welcome to Nirovision!
Nirovision Pty. Ltd. (“Nirovision”, or “we”, “us” or “our”) offers computer vision solutions built upon machine learning technology. This agreement is our terms of service and end user license agreement (“Agreement”) and is entered into by and between the Nirovision entity and the entity or person placing an order for or accessing any Services (“Customer” or “you“). This Agreement covers the use of our online and/or mobile services, websites, SDKs, APIs, identity management portal, documentation, models, features, functions, software, technical support, updates, upgrades and anything else we make available for use (collectively, the “Services”).
This Agreement, together with any applicable Order Form, constitute the entire and exclusive understanding and agreement between Nirovision and you regarding the Services, and this Agreement supersedes and replaces any and all prior oral or written understandings or agreements between Nirovision and you regarding the Services.
The “Effective Date“ of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
USE OF AND ACCESS TO OUR SERVICES IS SUBJECT TO THIS AGREEMENT. IF YOU DO NOT AGREE, YOU MAY NOT USE OR ACCESS THE SERVICES. IF YOU’RE AGREEING TO THESE TERMS ON BEHALF OF AN ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO THESE TERMS ON THAT ORGANIZATION’S BEHALF AND BIND THEM TO THIS AGREEMENT (IN WHICH CASE, REFERENCES TO “YOU” AND “YOUR” INCLUDE THAT ORGANIZATION).
You acknowledge and agree that Nirovision may modify the terms and conditions of this Agreement at any time. Nirovision will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If moving forward, you do not agree to these terms of service, you have the option to terminate your service with us as described in Section 7 (Terms and Termination; Suspension). You are able to access our most recent terms of service at any time through our website.
1. Nirovision Service
“Acceptable Use Policy” means Nirovision’s Acceptable Use Policy, available at Acceptable Use Policy or a successor URL.
“Customer Data“ means any data, content, code, video, images or other materials of any type that you (including any of your Permitted Users) submit to Services. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available your Data to or through the Services.
“Documentation“ means the end user technical documentation provided with the Services, as may be modified from time to time.
“Laws“ means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Order Form“ is defined above.
“Permitted User” means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
“Sensitive Personal Information“ means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA“); (iii) any information deemed to be “special categories of data” of an EU resident or (iv) any other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or other Laws.
“Services“ means Nirovision’s proprietary software-as-a-service solution(s) specified on an Order Form, including the Nirovision dashboard and any related Nirovision Code and API(s).
1.2. Access to the Services
1.3. Nirovision Apps
To the extent Nirovision provides Nirovision Apps for use with the Services, subject to all of the terms and conditions of this Agreement, Nirovision grants to Customer a limited, non-transferable, sub-licensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Nirovision Apps internally, but only in connection with Customer’s use of the Services and otherwise in accordance with the Documentation and this Agreement.
1.4. Contractors and Affiliates
Customer may permit its Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
1.5. General Restrictions
Customer shall not (and shall not permit any third party to):
(a) rent, lease, provide access to or sublicense the Service to a third party;
(b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party;
(c) use or attempt to use the Service for competitive analysis or benchmarking;
(d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Nirovision);
(e) copy, modify or create any derivative work of the Service or any Documentation;
(f) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); or
(g) publicly disseminate information regarding the performance of the Service.
1.6. Nirovision APIs.
If Nirovision makes access to any APIs available as part of the Services, Nirovision reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Nirovision may monitor Customer’s usage of such APIs and limit the number of calls or requests Customer may make if Nirovision believes that Customer’s usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on Nirovision).
2. Service Plans and Beta Releases
2.1. Service Plans
Nirovision makes available the Services through trial plans (“Trial Plans“) and paid plans (“Paid Plans“).Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders or pays for the Service. Customer’s permitted scope of use – such as features available, permitted number of monthly tracked identities and other usage limits – depends on the plan that Customer selects and will be specified on the applicable Order Form.
2.2. Paid Plans
Paid Plans are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term“). Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term.
2.3. Trial Plans
(a) Trial Plans. For Trial Plans, Customer may use the Services in accordance with this Agreement for the limited trial period designated on the Order Form or such other period as may be specified by Nirovision. Trial Plans are permitted solely for Customer’s use to determine whether to purchase a Paid Plan. If Customer does not upgrade from a Trial Plan to a Paid Plan at the end of the Trial Period, then Customer’s access to the Services may be limited or suspended (to be determined at Nirovision’s sole discretion) until such time as Customer terminates this Agreement or converts to a Paid Plan.
(b) Special Terms. Trial Plans may not include all features or functionality offered as part of Paid Plans, and Nirovision reserves the right to add or subtract any features or functionality at any time for such plans. Nirovision has the right to suspend or terminate a Trial Plan at any time for any reason. If Customer upgrades from a Trial Plan to a Paid Plan, Nirovision does not guarantee that the entirety of the Customer’s Data from the Trial will be carried over to the Paid Plan.
2.4. Beta Releases
From time to time, Nirovision may grant Customer access to “alpha”, “beta”, or other early-stage products (“Beta Releases“). While Nirovision may provide assistance with Beta Releases in its discretion, notwithstanding anything to the contrary in this Agreement, CUSTOMER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH NIROVISION WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CUSTOMER’S SOLE RISK. Nirovision makes no promises that future versions of a Beta Release will be released. Nirovision may terminate Customer’s right to use any Beta Release at any time for any reason or no reason in Nirovision’s sole discretion, without liability.
2.5. No contingencies on other products of future functionality
You acknowledge that the Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Cloud Products beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.
3. Fees and Payment
3.1. Fees and Payment
All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. All fees are non-refundable. Nirovision reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Nirovision. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, Nirovision reserves the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees monthly in arrears.
We will deliver the login instructions for Services to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.
3.4. If you purchased through a Reseller.
If you make any purchases through an authorized partner or reseller of Nirovision (“Reseller”):
(a) Instead of paying us, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use our Services if we do not receive the corresponding payment from the Reseller.
(b) Your order details (e.g., the Services you are entitled to use, the number of Permitted Users, the Subscription Term, etc.) will be as stated in the Order placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such Order as communicated to us.
(c) Resellers are not authorized to modify these Terms or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these Terms.
4. Customer Data
4.1. Rights in Customer Data
As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Nirovision. Subject to the terms of this Agreement, Customer hereby grants to Nirovision a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer. Solely to the extent that reformatting your Data for display in our Services constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts in order to respond to your support requests.
4.2. Storage of Customer Data
Nirovision does not provide an archiving service. Nirovision agrees only that it will not intentionally delete any Customer Data from any Services prior to termination of Customer’s applicable Subscription Term. Nirovision expressly disclaims all other obligations with respect to storage.
4.3. Customer Obligations
a) In General.
Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Nirovision that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting Nirovision the rights in Section 4.1 (Rights in Customer Data) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer’s accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Data complies with the Acceptable Use Policy. Customer will be fully responsible for any Customer Data submitted to the Services by any Permitted User as if it was submitted by Customer.
b) No Sensitive Personal Information.
Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Nirovision is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. Nirovision will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
c) Compliance with Laws.
Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.
4.4. Indemnification by Customer
Customer will indemnify, defend and hold harmless Nirovision from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 4.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Nirovision at Customer’s expense. Notwithstanding the foregoing sentence, (a) Nirovision may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Nirovision’s prior written consent, unless the settlement fully and unconditionally releases Nirovision and does not require Nirovision to pay any amount, take any action, or admit any liability.
4.5. Aggregated Anonymous Data
Notwithstanding anything to the contrary herein, Customer agrees that Nirovision may obtain and aggregate technical and other data about Customer’s use of the Services that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”), and Nirovision may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Nirovision customers. For clarity, this Section does not give Nirovision the right to identify Customer as the source of any Aggregated Anonymous Data.
5.1. Nirovision Technology
This is a subscription agreement for access to and use of the Services. Customer agrees that Nirovision or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in this Agreement, no rights in the Services or any Nirovision technology are granted to Customer.
Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Nirovision product or service to Nirovision (“Feedback“). Nirovision may freely use or exploit Feedback in connection with any of its products or services.
Nirovision agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Services or Customer Data. However, Nirovision shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Nirovision’s control.
7. Term and Termination; Suspension
This Agreement is effective as of the Effective Date and will continue until terminated.
7.2. Termination for Cause
Either party may terminate this Agreement (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, nothing in this Section 7.2 limits Nirovision right to terminate or suspend any Trial Plan as set forth in Section 2.3 (Trial Plans). Nirovision also reserves the right to suspend Customer’s access to the Services without liability to Customer if Customer’s use of the Services is in violation of the Acceptable Use Policy.
7.3. Termination for Convenience.
You may choose to stop using the Services and terminate this Agreement (including all Orders) at any time for any reason upon written notice to us, but upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or relevant services period (as applicable), any such fees that are outstanding will become immediately due and payable. Paid Plans on a month-to-month basis will be liable for the outstanding amount to complete twelve (12) paid months if the Agreement is terminated without Cause.
7.4. Effect of Termination
Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Services (including any and all related Nirovision technology), and delete (or, at Nirovision’s request, return) any and all copies of the Documentation, any Nirovision passwords or access codes and any other Nirovision Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Services, and that Nirovision may delete any such data as may have been stored by Nirovision at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
7.5. Suspension of Service
In addition to Nirovision’s termination and other rights under this Agreement, Nirovision reserves the right to suspend Customer’s access to the Services (and any related services), in whole or in part, without liability to Customer and with immediate effect: (i) if Customer’s account is thirty (30) days or more overdue; (ii) if Customer exceeds any scope of use restrictions set forth in the applicable Order Form; (iii) if Customer has breached its express obligations under Section 1.5 (Use Restrictions), Section 1.6 (Nirovision APIs) and Section 4.3 (Customer Obligations); or (iv) to prevent harm to the Service or other Nirovision customers.
The following Sections shall survive any expiration or termination of this Agreement: 1.5 (General Restrictions), the disclaimers in Section 2.4 (Beta Releases), 3 (Fees and Payment), 4.4 (Indemnification by Customer), 5 (Ownership), 7 (Term and Termination; Suspension), 8 (Warranty Disclaimer), 9 (Confidential Information), 10 (Limitation of Liability), 13.6 (Waivers, Modifications) and 13 (General Provisions).
8. WARRANTY DISCLAIMER
THE SERVICE AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER NIROVISION NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NIROVISION DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES NIROVISION WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH PERMITTED USERS AT CUSTOMER’S ELECTION AND NIROVISION TAKES NO RESPONSIBILITY FOR ANY USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. NIROVISION SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF NIROVISION. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
9. Confidential Information
Each party (as “Receiving Party“) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Nirovision technology, performance information relating to the Services, and the terms and conditions of this Agreement shall be deemed Confidential Information of Nirovision without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
10. Limitation of Liability.
10.1. Consequential Damages Waiver
EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
10.2. Liability Cap
EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
10.3. Excluded Claims
“Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms, and (3) your breach of Section 1.5 (Restrictions).
10.4. Nature of Claims and Failure of Essential Purpose
The parties agree that the waivers and limitations specified in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
11. IP Indemnification.
We will defend you against any claim brought against you by a third party alleging that the Services, when used as authorized under this Agreement, infringe a patent right granted in the United States, Australia or a member nation of the European Union or a copyright registered in such a jurisdiction (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Services is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Services in accordance with these Terms; (ii) substitute a substantially functionally similar Services; or (iii) terminate your right to continue using the Services and refund any prepaid amounts for the terminated portion of the Subscription Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to the Services in the twelve (12) month period immediately preceding the Claim is less than US$50,000; (2) if the Services is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Services are used in combination with any non-Nirovision product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of our Services; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 4.4 (Indemnification by Customer) or (z) any third-party deliverables or components contained with the Services or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SERVICES OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.
12. Publicity Rights
We may identify you as an Nirovision customer in our promotional materials. We will promptly stop doing so upon your request sent to firstname.lastname@example.org.
13. General Provisions
Any notice under this Agreement must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Nirovision Pty Ltd, 2/120 Sussex Street, Sydney, Australia, 2000, Attn: Notice. Your notices to us will be deemed given upon receipt.
13.2. Governing law and jurisdiction
13.3. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under this Agreeement (in whole or in part) without your consent. We may also permit our contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
13.5. Entire Agreement
These Terms are the entire agreement between you and us relating to the Services and any other subject matter covered by this Agreement, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Services or any other subject matter covered by this Agreement. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
13.6. Waivers; Modifications
No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Any amendments or modifications to this Agreement must be executed in writing by an authorized representative of each party.
As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
13.8. Independent Contractors
The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.