1. End Customer License Agreement
This End Customer License Agreement (“License Agreement”) was executed, signed and took effect on Customer’s execution (“Effective Date”) by and between Intenseye, Inc., a Delaware corporation with offices located at 530 5th Avenue, New York, NY 10036 (“Intenseye”) and Customer identified in the Statement of Work (“Customer”).
Customer and Intenseye shall be hereinafter individually referred to as “Party” and collectively as “Parties”.
If the Customer acquires Services (as defined below) under the terms specified herein through a Partner (as defined below), this License Agreement will take precedence over any conflicting terms in the agreement between the Customer and the Partner, insofar as the relationship between the Customer and Intenseye is concerned. Rights granted to the Customer in a separate agreement with the Partner, which are absent in this License Agreement, are applicable exclusively in the context of that Partner. Consequently, the Customer is obliged to pursue any remedies or enforcement of such rights solely with the Partner and not Intenseye.
BY SIGNING A STATEMENT OF WORK, ACCESSING, RECEIVING, AND/OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. IN NO EVENT MAY YOU ACCESS, RECEIVE OR OTHERWISE USE ANY INTENSEYE PRODUCT OR SERVICE WITHOUT AGREEING TO THESE TERMS (OR ANOTHER AGREEMENT AGREED TO IN WRITING BY INTENSEYE).
1. DEFINITIONS
- “Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
- “Authorized User” means the individuals authorized by the Customer to access and use the Services.
- “Customer” means the Customer identified in the SOW.
- “Customer Data” means any data or images submitted, uploaded, imported, integrated, or otherwise communicated by Customer to Intenseye.
- “Facility” means the sites/facilities/plants of the Customer in which Services are to be used by Customer.
- “Fees” has the meaning set forth in Section 5.1.
- “License Agreement” means, collectively, this End Customer License Agreement and any other attachments hereto.
- “Partner” means Intenseye-authorized partner, reseller, distributor or marketplace.
- “Partner Contract” means the agreement between Intenseye and Partner authorizing the Partner to resell access to, or provide access to the Services.
- “Services” has the meaning set forth in Section 2.
- “Service Data” means any statistical and/or other benchmark data gathered by Intenseye from Customer’s use of the Services, including image-related data, for purposes of training Intenseye’s algorithms.
- “Service Software” means the AI-powered image processing based workplace safety and security software application that has been developed and owned by Intenseye or applications and any third-party or other software, and all new versions, updates, revisions, improvements, and modifications of the foregoing, that Intenseye provides remote access to and use of as part of the Services.
- “Subscription” means a non-exclusive, personal, nontransferable right to use the Services and use the output of the Services in accordance with this License Agreement and the SOW in Customer’s relevant Facilities details of which is stated on the SOW.
- “Subscription Start Date” means the date of commencement of the Services set forth in the relevant SOW.
- “Subscription Term” means the initial Service term for which the Services can be used in a Facility in accordance with this License Agreement and the agreed upon time period in the relevant SOW.
- “Statement of Work” or “SOW” means the document that is mutually agreed to in writing by the Partner and Customer that issued in accordance with this License Agreement and describes, among other things, the Services to be made available, the Fees to be paid, payment term, and Subscription Term. Customer acknowledges the Partner Contract requires Partner to incorporate this License Agreement into all SOWs, and Customer expressly agrees that Intenseye shall have the benefit of and right to enforce this License Agreement against Customer. In the event that any provision of this License Agreement is deemed to conflict with a provision of a SOW or other agreement between Customer and Partner with respect to the Services or other subject matter of this License Agreement, the provision of this License Agreement shall be applicable for Customer and Intenseye, unless Intenseye and Customer agree otherwise in writing.
2. SUBJECT
This License Agreement sets out the principles regarding provision of services details of which set out in the related SOW via the Service Software (“Services”) to the Customer by Intenseye and the rights and obligations of the Parties in respect thereof.
3. TERM
This License Agreement enters into force on Effective Date and remains in effect until the expiration of the last Subscription Term in all effective SOWs issued under this License Agreement (“Term of the License Agreement”). The term of the Services will commence on Subscription Start Date set forth in the SOW and shall continue for the Subscription Term identified therein, and any renewal thereof, unless earlier terminated pursuant to the terms of this License Agreement.
4. LICENSE AND INTELLECTUAL PROPERTY RIGHTS
4.1. License Agreement. Intenseye hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable, worldwide license to access and utilize the Services pursuant to the terms of this License Agreement and the applicable SOW.
4.2. Reservation of Rights. Intenseye and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Service Software, Services and Service Data (collectively “Intenseye Intellectual Property”), including any improvements, modifications, and enhancements. Intenseye expends significant resources gathering, assembling, and compiling the Service Data and such Service Data constitutes an original compilation protected by applicable copyright laws. Except for the rights expressly granted in this License Agreement, Customer shall acquire no other rights, express or implied, in or to the Intenseye Intellectual Property, and all rights not expressly provided to Customer hereunder are reserved by Intenseye and its licensors. If Customer chooses, in its sole discretion, to provide Feedback (defined below) to Intenseye, nothing in this License Agreement or in the parties’ dealings arising out of or related to this License Agreement will restrict Intenseye’s right to use, profit from, disclose, publish, or otherwise exploit Feedback, without compensating or crediting Customer or the individual providing such Feedback. Customer’s Confidential Information shall not include Feedback, to the extent that such Feedback relates exclusively to Intenseye’s products or services. “Feedback” means any feedback (e.g., questions, comments, suggestions or the like), whether orally or in writing, regarding any of the Services.
4.3. Use Restrictions. Customer will not, directly or indirectly, alter or modify the Services and Service Software, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, Service Software or any software, documentation or data related to the Services. Customer shall not make the Services and Service Software available for the benefit of any third party, or sell, resell, license, sublicense, distribute, rent or lease the Services to any third party for any purpose, commercial or otherwise.
4.4. Customer Data. All intellectual property rights in and to the Customer Data shall vest and remain vested in the Customer. Customer grants Intenseye a non-exclusive, non-transferable, non-sublicensable (except as set forth herein), royalty-free right during the Term of the License Agreement to copy, transmit and display Customer Data to analyze, develop, test, and operate, provide, and support the Services and/or any of products of Intenseye, as reasonably necessary for Intenseye to provide the Services in accordance with this License Agreement. Subject to the limited licenses granted herein, Intenseye acquires no right, title or interest from Customer or Customer’s licensors under this License Agreement in or to any Customer Data. All intellectual and industrial property rights regarding the Customer Data other than the specified right of use belong to Customer and this limited usage right granted to Intenseye cannot be interpreted in a way to limit Customer's use of all other rights. Company shall be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired such Customer Data. Customer represents and warrants that: (a) it owns or has the right to make Customer Data available to Intenseye; and (b) the posting and use of Customer Data on or through the Service will not (i) violate the intellectual property, privacy, publicity, or other rights of any person or (ii) breach any contract between Customer and a third party. To the extent Customer Data includes information that, alone or in combination with other information, is also personal data, Intenseye does and shall comply with all applicable laws and regulations involving the use, protection, and maintenance of such personal data. Where an Authorized User submits Customer Data, including personal data about such Authorized User, directly to the Service or Intenseye, the provisions of this Section will apply to such Authorized User.
4.5. Promotional License. Customer grants to Intenseye a limited, non-exclusive, unrestricted right and license (subject to Customer’s right to cancel such license at any time) to use Customer’s name and logo for the following purposes: (i) to promote the Services; (ii) to demonstrate on Intenseye's website that the Customer is a user of Intenseye’s Services; and (iii) to prepare and publish a use case detailing the Customer’s experience with Service Software. Intenseye is granted no other rights to the Customer’s logo and acknowledges that it shall not gain any proprietary interest in the Customer’s logo. Intenseye is under no obligation to make use of or to provide compensation for any of the rights or permissions granted. Intenseye shall be the exclusive owner of all right, title, and interest, including copyright, in Intenseye’s marketing and promotional materials. Customer may terminate any of the above uses at any time with thirty (30) days written notice.
5. FEES AND PAYMENT
5.1. Fees, Payments and Taxes. Pricing and payment of fees and associated taxes for the Services are solely between Customer and Partner.
6. AVAILABILITY AND TECHNICAL SUPPORT
6.1. Intenseye will provide the Services in accordance with the Service Level Agreement set forth as Annex 1 hereto. Intenseye may provide bug fixes, patches, and maintenance releases to the Services at any time.
6.2. Intenseye’s support personnel shall respond to Customer’s reasonable telephone and email inquiries regarding issues relating to the Services from 7:00 a.m. to 8:00 p.m., Eastern Standard Time, Monday through Friday, except for standard legal U.S. holidays.
6.3. Should Intenseye require Customer’s support within the scope of the performance of Services, Customer shall not refrain from cooperating with Intenseye.
7. PRIVACY AND PERSONAL DATA PROTECTION
7.1. The Parties have to comply with primarily the applicable personal data protection laws, with regard to personal data which they have learned, accessed and transferred to each other about performance of this License Agreement or/and during the performance of this License Agreement, without limitation to this Section.
7.2. Customer acts as the data controller for the performance of the Services and in personal data processing activities carried out in connection with it.
7.3. For purposes of this License Agreement, Intenseye operates as the data processor under the direction of the Customer, who operates as the data controller. Customer has full control and discretion of its personal data to submit to Intenseye.
7.4. Within the scope of the Services provided by the Intenseye as per this License Agreement, if necessary, Intenseye as a data processor will only process personal data processed by the data controller Customer only for the purpose of performing the Services. It will not be possible for Intenseye to process personal data other than the performance of the License Agreement, to share it with third parties, to use it for advertising, sales and similar purposes.
7.5. Intenseye will implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the personal data under this License Agreement. Taking into account costs of implementation, the nature, scope, context and purposes of data processing, and any potential risks to the rights and freedoms of natural persons, these measures include: (a) the encryption of personal data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of personal data. In assessing the appropriate level of security, Intenseye shall take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing of personal data as well as the risk of varying likelihood and severity for the rights and freedoms of data subjects and the risks that are presented by the processing of personal data, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed.
7.6. Intenseye shall notify Customer without undue delay, and in any event no later than seventy-two (72) hours, upon Intenseye becoming aware of a personal data breach affecting personal data, providing Customer with sufficient information to allow Customer to meet its obligations to report or inform data subjects of the personal data breach under the applicable data protection laws. Intenseye shall cooperate with Customer and take such reasonable commercial steps to assist in the investigation, mitigation and remediation of a personal data breach.
8. CONFIDENTIALITY AND NON-DISCLOSURE
8.1. In providing the Services under this License Agreement, each Party may have access to to the other Party’s confidential and proprietary information (“Confidential Information”). To the extent such Confidential Information is disclosed to the Parties, the Party receiving the Confidential Information (“Receiving Party”) shall not disclose any Confidential Information to any third party for any reason without the prior written consent of the Party disclosing the Confidential Information (“Disclosing Party”), other than its employees or agents who have a need to know about such information for the performance of this License Agreement.
8.2. In the event the Receiving Party is requested or required by legal process to disclose any of the Confidential Information, the Receiving Party shall, if legally permitted, give the Disclosing Party prompt notice so that the Disclosing Party may seek a protective order or other appropriate relief prior to any such disclosure. If such protective order is not obtained, the Receiving Party shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose and shall work with the Disclosing Party to minimize the extent and effect.
8.3. Both parties understand and agree that monetary damages will not be a sufficient remedy for any breach of the Receiving Party’s confidentiality obligations under this Section and that the Disclosing Party shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach for the Disclosing Party but will be in addition to all other remedies available to the Disclosing Party at law or in equity.
9. REPRESENTATIONS AND WARRANTIES
9.1. Mutual Warranties. Each Party represents and warrants that: (i) Each Party is a business duly incorporated and in good standing under the laws of its state of incorporation; (ii) Each Party has all requisite corporate power and authority to execute, deliver, and perform its obligations under this License Agreement; (iii) Each Party shall comply with all international, federal or state laws or regulations applicable to the performance of its obligations under this License Agreement; (iv) Services may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access or use any Services in a U.S. embargoed country or in violation of any other applicable export laws or regulations.
9.2. Intenseye Representations and Warranties. Intenseye represents, warrants and covenants that throughout the Term of the License Agreement (i) the Service shall perform materially with the functionality in accordance with the applicable documentation and such functionality will be maintained in all material respects in subsequent upgrades to the Service; (ii) it will employ then-current, best industry-standard measures to test the Service to detect and remediate viruses, trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact or misappropriate Customer Data or the operation or performance of the Service; (iii) the Service shall perform pursuant to the terms of the Service Level Agreement attached hereto as Annex 1 and incorporated herein by reference; (iv) it is the sole owner of the Service or otherwise has full power and authority to grant to Customer the rights to use the Service and other rights granted herein; and (v) as of the Effective Date, and to Intenseye’s actual or constructive knowledge, neither the performance by Customer in its utilization of the Service, nor the license of and authorized use by Customer of the Service as described herein, do not infringe upon or misappropriate any proprietary or intellectual property right of any third party. Intenseye shall perform the technical support services in compliance with specialties of every specific technical issue and does not guarantee any solution regarding any technical issue.
9.3. Customer Representations and Warranties. Customer represents and warrants that: (a) its use of the Service, including any Customer Data provided by Customer for use with the Service or handling by Intenseye, will: (i) comply with any applicable law or regulation, (ii) not cause a breach of any agreement with or rights of any third party (including without limitation the rules of any social network platform or any data subject rights) and (iii) not unreasonably interfere with use of services offered by the Company to third parties; and (b) it shall use the Service strictly in accordance with this License Agreement and other written instructions (e.g., product documentation, release notes, mutually agreed SOWs, etc.) provided by Intenseye.
10. DISCLAIMERS
10.1. INTENSEYE DOES NOT MAKE ANY GUARANTEE OF IMPACT, OUTCOME, OR RESULTS. UNLESS OTHERWISE STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO CUSTOMER THROUGH THIS LICENSE AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. INTENSEYE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE SOFTWARE (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET CUSTOMER’S REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE. EXCEPT WHERE PROHIBITED BY LAW, INTENSEYE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY AND WILL NOT BE LIABLE FOR CUSTOMER’S USE OF OR RELIANCE ON THE SERVICES.
10.2. Intenseye disclaims any and all liability for the acts, omissions, and conduct of any third parties. To the extent permitted by applicable law, Intenseye makes no warranties regarding third party services, goods, resources, and information including, without limitation, warranties of fitness for a particular purpose, merchantability, and non-infringement and will not be liable for Customer’s use of such third-party services, goods, resources or information.
10.3. With regard to any dispute between Customer and any of its employees, contractors, visitors, invitees, agents, customers, representatives or other third party (whether an individual or public or private entity) arising from or relating to Customer’s use of the Services, the analytics generated in connection with the Services, and/or Customer’s reliance on such analytics, Customer hereby releases Intenseye and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns, from all claims, demands, causes of action, liabilities, legal fees and costs, and damages (actual or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
10.4. The purpose of the Services provided by Intenseye is to provide technical solutions to help ensure the Customer’s compliance with the applicable occupational health and safety legislation at the Customer’s Facilities specified in the SOWs, limited to the scope of Services defined in the SOWs. In this context, Intenseye cannot be held liable in the event of any situation contrary to the relevant legislation, especially occupational accidents that may cur in the Facilities during the utilization of the Services. Accordingly, Intenseye shall not be held liable for any loss or damage, intangible, legal and financial consequences arising or resulting any acts or omissions by Customer, including acts or omissions made by Customer in reliance upon the analytics generated from the Customer Data collected, processed and reported in connection with the Services.
11. LIMITATION OF LIABILITY
Except with respect to a Party’s indemnification obligations herein (“Exceptions”), neither Party shall be liable to the other party or any third party for any consequential, incidental, indirect, exemplary, punitive or special damages (including damages for lost profits, security breach, lost data or loss of goodwill) arising out of, relating to or connected with the use of the Services, even if such Party has been advised of the possibility of such damages. To the extent permitted by applicable law, except with respect to the Exceptions, except for each Party’s liability for payment of fees and for infringement of intellectual property rights, in no event will either Party’s aggregate liability to the other Party, including that of its officers, directors, employees, and agents, arising out of or in connection with this License Agreement exceed the fees paid or payable to Intenseye by Partner during the Subscription Term giving rise to the claim.
12. INDEMNITY
12.1. By Intenseye. To the maximum extent permitted by law, Intenseye agrees to indemnify, defend and hold harmless Customer, and its Customer subsidiaries, affiliates, officers, directors, shareholders, employees and each of their respective successors and assigns (the “Customer Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Customer Indemnified Parties arising out of or relating to a claim that the Services infringe another person's patent, copyright, trade secret or trademark. Intenseye will not have liability for, and Customer will defend Intenseye against, and pay any damages awarded against Intenseye and direct expenses, including reasonable attorneys' fees to the extent the claimed infringement would not have occurred but for (i) the use of the Services other than in accordance with Intenseye’s published instructions, (ii) any unauthorized modification or alteration of the Services by Customer, (iii) any combination or use of the Services with any other product or system or technologies not supplied by Intenseye or otherwise anticipated by this License Agreement, (iv) Intenseye's compliance with Customer's design or specifications, and/or (v) any refusal to accept or use suitable modified or replacement of the Services provided by Intenseye to avoid infringement. In the event of claimed infringement, Intenseye shall, at its option: (A) obtain a right for Customer to continue using the Services for no additional fee; (B) modify the Services (as applicable) to make it non-infringing; (C) replace the Services (as applicable) with a non-infringing equivalent with the same functionality, features, and performance; or (D) terminate this License Agreement and refund on a pro-rata basis the unused portion of the Fees.
12.2. By Customer. To the maximum extent permitted by law, Customer agrees to indemnify, defend and hold harmless Intenseye, and its Intenseye subsidiaries, affiliates, officers, directors, shareholders, employees, and each of their respective successors and assigns (the “Intenseye Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Intenseye Indemnified Parties arising out of or relating to (i) Customer’s use of the Services in breach of this License Agreement, (ii) Customer’s violation of any third party right, including without limitation any intellectual property right, publicity, property or privacy right, (iii) a breach of Customer’s representation or warranties under this License Agreement, (iv) Customer’s failure to obtain the proper consents and/or authorizations to capture, process and/or transmit Customer Data to Intenseye, (v) Customer’s violation of applicable state and federal rules, regulations and statutes, (vi) bodily injury, death or property damage of Customer’s employees, contractors, visitors, invitees, agents, customers, representatives or other third party.
12.3. Notice. As a condition to an indemnifying Party’s (each, an “Indemnitor”) obligations under this Section, a Party entitled to indemnification (each, an “Indemnitee”) will: (i) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification; (ii) grant the Indemnitor sole control of the defense and settlement of the claim; (iii) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the claim; (iv) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim that involves a remedy other than payment without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.
13. RENEWAL AND TERMINATION
13.1. Renewal. Except as otherwise specified in the SOW, Services (the relevant SOW) will automatically renew for additional periods equal to the expiring Subscription Term, unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the applicable Subscription Term.
13.2. Automatic Termination. This License Agreement shall automatically terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either Party’s debts, (ii) upon either Party making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business.
13.3. Termination for Cause. Either Party may terminate this License Agreement if the other Party breaches any material provisions of this License Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. Additionally, Intenseye may terminate Customer’s access to the Services and this License Agreement if Partner fails to pay any amount due under its Partner Contract and such failure remains uncured following the cure period specified in the Partner Contract.
13.4. Survival. The following Sections survive termination of this License Agreement: Promotional License, Confidentiality & Non-Disclosure, Disclaimers, Indemnity, Limitation of Liability, and Governing Law.
14. GENERAL PROVISIONS
14.1. Affiliates. Any Affiliate of Customer will have the right to enter into a SOW executed by such Affiliate and Partner and this License Agreement will apply to each such SOW as if such Affiliate were a signatory to this License Agreement. With respect to such SOWs, such Affiliate becomes a party to this License Agreement and references to Customer in this License Agreement are deemed to be references to such Affiliate.
14.2. Force Majeure. Neither party will be deemed in breach of this License Agreement if the failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service attacks, but only if (a) such party gives prompt written notice to the other party of the force majeure event, and (b) such failure or delay results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes. The time for performance will be extended for a period equal to the duration of the force majeure event.
14.3. Relationship of the Parties. The parties’ relationship is strictly that of independent contractors and this License Agreement do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has the power to bind the other, make any warranties or representations, or incur, assume, or create obligations on the other’s behalf without the other’s prior written consent and each party agrees that it will not perform any act or omission to the contrary.
14.4. Severability. The validity or unenforceability of any provision of this License Agreement shall not affect the validity or enforceability of any other provision of this License Agreement.
14.5. Modifications. No modification of this License Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
14.6. Assignment. Neither Party shall assign any of the rights or obligations under this License Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld. However, consent is not required for an assignment of this License Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.
14.7. Successors and Assigns. This License Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
14.8. No Waiver. No failure or delay by a party exercising any right, power or privilege under this License Agreement will operate as a waiver thereof.
14.9. Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
14.10. Notices. All notices required or permitted to be given under this License Agreement will be in writing and delivered to Intenseye and to Customer at the addresses provided in this License Agreement and the SOW.
14.11. Governing Law and Venue. This License Agreement and the rights and obligations of the Parties under this License Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to the principles thereof relating to the conflicts of laws. In addition, the Parties mutually acknowledge and agree that this License Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, shall not be governed by the Uniform Commercial Code of any state having or claiming jurisdiction. The Parties consent to the jurisdiction of the State of New York, and venue in New York County, with regard to any controversy or claim arising out of or relating to this License Agreement including any Annex, Schedules, SOW, order form and the transactions contemplated therein, or the breach thereof.
14.12. Execution and Counterparts. This License Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature (e.g., DocuSign) complying with the U.S. Federal ESIGN Act of 2000, Uniform Electronic Transactions Act, or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
14.13. Entire Agreement and Construction. This License Agreement constitute the entire and exclusive agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this License Agreement. No modification, amendment, or waiver of any provision of this License Agreement shall be effective unless in writing and signed by both parties. In the event of any conflict between the provisions in this License Agreement and any SOW, the License Agreement will take precedence. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order issued by Customer or in any other Customer order documentation shall be incorporated into or form any part of this License Agreement.
2. Master Software as a Service (SaaS) Agreement
This Master Software as a Service (SaaS) Agreement (“Agreement”) was executed, signed and took effect on the date of Customer’s execution of this Agreement or the first SOW (“Effective Date”) by and between Intenseye, Inc., a Delaware corporation with offices located at 530 5th Avenue, New York, NY 10036 (“Intenseye”) and Customer identified in the Statement of Work (“Customer”).
Customer and Intenseye shall be hereinafter individually referred to as “Party” and collectively as “Parties”.
BY SIGNING A STATEMENT OF WORK, ACCESSING, RECEIVING, AND/OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IN NO EVENT MAY YOU ACCESS, RECEIVE OR OTHERWISE USE ANY INTENSEYE PRODUCT OR SERVICE WITHOUT AGREEING TO THESE TERMS (OR ANOTHER AGREEMENT AGREED TO IN WRITING BY INTENSEYE).
1. DEFINITIONS
- “Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
- “Agreement” means, collectively, this Software as a Service Agreement and all SOWs issued under this Agreement and any other attachments hereto.
- “Authorized User” means the individuals authorized by the Customer to access and use the Services.
- “Customer” means the Customer identified in the SOW.
- “Customer Data” means any data or images submitted, uploaded, imported, integrated, or otherwise communicated by Customer to Intenseye.
- “Facility” means the sites/facilities/plants of the Customer in which Services are to be used by Customer.
- “Fees” has the meaning set forth in Section 5.1.
- “Services” has the meaning set forth in Section 2.
- “Service Data” means any statistical and/or other benchmark data gathered by Intenseye from Customer’s use of the Services, including image-related data, for purposes of training Intenseye’s algorithms.
- “Service Software” means the AI-powered image processing based workplace safety and security software application that has been developed and owned by Intenseye or applications and any third-party or other software, and all new versions, updates, revisions, improvements, and modifications of the foregoing, that Intenseye provides remote access to and use of as part of the Services.
- “Subscription” means a non-exclusive, personal, nontransferable right to use the Services and use the output of the Services in accordance with this Agreement and the SOW in Customer’s relevant Facilities details of which is stated on the SOW.
- “Subscription Start Date” means the date of commencement of the Services set forth in the relevant SOW.
- “Subscription Term” means the initial Service term for which the Services can be used in a Facility in accordance with this Agreement and the agreed upon time period in the relevant SOW.
- “Statement of Work” or “SOW” means the document that is mutually agreed to in writing by the Parties that issued under this Agreement and describes, among other things, the Services to be made available, the Fees to be paid, payment term, and Subscription Term.
2. SUBJECT
This Agreement sets out the principles regarding provision of services detailed in the related SOW via the Service Software (“Services”) to the Customer by Intenseye and the rights and obligations of the Parties in respect thereof.
3. TERM
This Agreement enters into force on Effective Date and remains in effect until the expiration of the Subscription Terms in all effective SOWs issued under this Agreement (“Term of the SaaS Agreement”). The term of the Services will commence on Subscription Start Date set forth in the SOW and shall continue for the Subscription Term identified therein, and any renewal thereof, unless earlier terminated pursuant to the terms of this Agreement.
4. LICENSE AND INTELLECTUAL PROPERTY RIGHTS
4.1. License Agreement. Intenseye hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable, worldwide license to access and utilize the Services pursuant to the terms of this Agreement and the applicable SOW.
4.2. Reservation of Rights. Intenseye and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Service Software, Services and Service Data (collectively “Intenseye Intellectual Property”), including any improvements, modifications, and enhancements. Intenseye expends significant resources gathering, assembling, and compiling the Service Data and such Service Data constitutes an original compilation protected by applicable copyright laws. Except for the rights expressly granted in this Agreement, Customer shall acquire no other rights, express or implied, in or to the Intenseye Intellectual Property, and all rights not expressly provided to Customer hereunder are reserved by Intenseye and its licensors. If Customer chooses, in its sole discretion, to provide Feedback (defined below) to Intenseye, nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Intenseye’s right to use, profit from, disclose, publish, or otherwise exploit Feedback, without compensating or crediting Customer or the individual providing such Feedback. Customer’s Confidential Information shall not include Feedback, to the extent that such Feedback relates exclusively to Intenseye’s products or services. “Feedback” means any feedback (e.g., questions, comments, suggestions or the like), whether orally or in writing, regarding any of the Services.
4.3. Use Restrictions. Customer will not, directly or indirectly, alter or modify the Services and Service Software, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, Service Software or any software, documentation or data related to the Services. Customer shall not make the Services and Service Software available for the benefit of any third party, or sell, resell, license, sublicense, distribute, rent or lease the Services to any third party for any purpose, commercial or otherwise.
4.4. Customer Data. All intellectual property rights in and to the Customer Data shall vest and remain vested in the Customer. Customer grants Intenseye a non-exclusive, non-transferable, non-sublicensable (except as set forth herein), royalty-free right during the Term of the SaaS Agreement to copy, transmit and display Customer Data to analyze, develop, test, and operate, provide, and support the Services and/or any of products of Intenseye, as reasonably necessary for Intenseye to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Intenseye acquires no right, title or interest from Customer or Customer’s licensors under this Agreement in or to any Customer Data. All intellectual and industrial property rights regarding the Customer Data other than the specified right of use belong to Customer and this limited usage right granted to Intenseye cannot be interpreted in a way to limit Customer's use of all other rights. Customer shall be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired such Customer Data. Customer represents and warrants that: (a) it owns or has the right to make Customer Data available to Intenseye; and (b) the posting and use of Customer Data on or through the Service will not (i) violate the intellectual property, privacy, publicity, or other rights of any person or (ii) breach any contract between Customer and a third party. To the extent Customer Data includes information that, alone or in combination with other information, is also personal data, Intenseye does and shall comply with all applicable laws and regulations involving the use, protection, and maintenance of such personal data. Where an Authorized User submits Customer Data, including personal data about such Authorized User, directly to the Service or Intenseye, the provisions of this Section will apply to such Authorized User.
4.5. Promotional License. Customer grants to Intenseye a limited, non-exclusive, unrestricted right and license (subject to Customer’s right to cancel such license at any time) to use Customer’s name and logo for the following purposes: (i) to promote the Services; (ii) to demonstrate on Intenseye's website that the Customer is a user of Intenseye’s Services; and (iii) to prepare and publish a use case detailing the Customer’s experience with Service Software. Intenseye is granted no other rights to the Customer’s logo and acknowledges that it shall not gain any proprietary interest in the Customer’s logo. Intenseye is under no obligation to make use of or to provide compensation for any of the rights or permissions granted. Intenseye shall be the exclusive owner of all right, title, and interest, including copyright, in Intenseye’s marketing and promotional materials. Customer may terminate any of the above uses at any time with thirty (30) days written notice.
5. FEES AND PAYMENT
5.1. Fees. In exchange for the provision of the Services, the Customer will pay Intenseye the fees for Services set forth in the relevant SOW (the “Fees”).
5.2. Payment: Customer shall execute an ACH authorization and expressly authorizes Intenseye to charge the applicable Fees through the credit card/financial institution designated by Customer. If the Customer’s pre-authorized payment method fails, Intenseye will provide notification of such payment failure. If the Customer fails to rectify the payment failure within ten (10) days of written notice, Intenseye may immediately stop the provision of Services without notice.
5.3. Payment Term. All Fees payable in connection with the Services shall be paid according to the payment schedule set forth in the applicable SOW.
5.4. Late Payments. Intenseye may suspend or terminate Services for payments that are more than thirty (30) days past due. Past due payments will accrue interest at the greater of 1.5% monthly or the highest interest rate allowable under applicable law.
5.5. Taxes. The Customer is responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed on the purchase or use of the Services. To the extent Intenseye is required to collect such taxes, the applicable tax will be added to Customer’s billing account.
5.6. No Refunds. The Customer shall be responsible for all Fees for the entire, applicable Subscription Term. Unless otherwise set forth in the SOW, Fees will not be prorated upon cancellation and/or termination and all Fees paid through the date of termination are nonrefundable. For the avoidance of doubt, with the signature of any SOW, Intenseye is entitled to receive the Total Fees stated in the relevant SOW. In case the Customer does not wish same number of Facilities as stated in the relevant SOW, to be connected with Service Software and/or does not use the Services in the same number of Facilities as stated in the relevant SOW, the Customer cannot refrain from paying and/or claim for a refund of the Total Fees stated in the relevant SOW, by claiming that the Customer did not use the Services (without Intenseye’s fault).
6. AVAILABILITY AND TECHNICAL SUPPORT
6.1. Intenseye will provide the Services in accordance with the Service Level Agreement set forth as Annex 1 hereto. Intenseye may provide bug fixes, patches, and maintenance releases to the Services at any time.
6.2. Intenseye’s support personnel shall respond to Customer’s reasonable telephone and email inquiries regarding issues relating to the Services from 7:00 a.m. to 8:00 p.m., Eastern Standard Time, Monday through Friday, except for standard legal U.S. holidays.
6.3. Should Intenseye require Customer’s support within the scope of the performance of Services, Customer shall not refrain from cooperating with Intenseye.
7. PRIVACY AND PERSONAL DATA PROTECTION
7.1. The Parties have to comply with primarily the applicable personal data protection laws, with regard to personal data which they have learned, accessed and transferred to each other about performance of this Agreement or/and during the performance of this Agreement, without limitation to this Section.
7.2. Customer acts as the data controller for the performance of the Services and in personal data processing activities carried out in connection with it.
7.3. For purposes of this Agreement, Intenseye operates as the data processor under the direction of the Customer, who operates as the data controller. Customer has full control and discretion of its personal data to submit to Intenseye.
7.4. Within the scope of the Services provided by the Intenseye as per this Agreement, if necessary, Intenseye as a data processor will only process personal data processed by the data controller Customer only for the purpose of performing the Services. It will not be possible for Intenseye to process personal data other than the performance of the Agreement, to share it with third parties, to use it for advertising, sales and similar purposes.
7.5. Intenseye will implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the personal data under this Agreement. Taking into account costs of implementation, the nature, scope, context and purposes of data processing, and any potential risks to the rights and freedoms of natural persons, these measures include: (a) the encryption of personal data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of personal data. In assessing the appropriate level of security, Intenseye shall take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing of personal data as well as the risk of varying likelihood and severity for the rights and freedoms of data subjects and the risks that are presented by the processing of personal data, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed.
7.6. Intenseye shall notify Customer without undue delay, and in any event no later than seventy-two (72) hours, upon Intenseye becoming aware of a personal data breach affecting personal data, providing Customer with sufficient information to allow Customer to meet its obligations to report or inform data subjects of the personal data breach under the applicable data protection laws. Intenseye shall cooperate with Customer and take such reasonable commercial steps to assist in the investigation, mitigation and remediation of a personal data breach.
8. CONFIDENTIALITY AND NON-DISCLOSURE
8.1. In providing the Services under this Agreement, each Party may have access to the other Party’s confidential and proprietary information (“Confidential Information”). To the extent such Confidential Information is disclosed to the Parties, the Party receiving the Confidential Information (“Receiving Party”) shall not disclose any Confidential Information to any third party for any reason without the prior written consent of the Party disclosing the Confidential Information (“Disclosing Party”), other than its employees or agents who have a need to know about such information for the performance of this Agreement.
8.2. In the event the Receiving Party is requested or required by legal process to disclose any of the Confidential Information, the Receiving Party shall, if legally permitted, give the Disclosing Party prompt notice so that the Disclosing Party may seek a protective order or other appropriate relief prior to any such disclosure. If such protective order is not obtained, the Receiving Party shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose and shall work with the Disclosing Party to minimize the extent and effect.
8.3. Both parties understand and agree that monetary damages will not be a sufficient remedy for any breach of the Receiving Party’s confidentiality obligations under this Section and that the Disclosing Party shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach for the Disclosing Party but will be in addition to all other remedies available to the Disclosing Party at law or in equity.
9. REPRESENTATIONS AND WARRANTIES
9.1. Mutual Warranties. Each Party represents and warrants that: (i) Each Party is a business duly incorporated and in good standing under the laws of its state of incorporation; (ii) Each Party has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; (iii) Each Party shall comply with all international, federal or state laws or regulations applicable to the performance of its obligations under this Agreement; (iv) Services may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access or use any Services in a U.S. embargoed country or in violation of any other applicable export laws or regulations.
9.2. Intenseye Representations and Warranties. Intenseye represents, warrants and covenants that throughout the Term of the SaaS Agreement that (i) the Service shall perform materially with the functionality in accordance with the applicable documentation and such functionality will be maintained in all material respects in subsequent upgrades to the Service; (ii) it will employ then-current, best industry-standard measures to test the Service to detect and remediate viruses, trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact or misappropriate Customer Data or the operation or performance of the Service; (iii) the Service shall perform pursuant to the terms of the Service Level Agreement attached hereto as Annex 1 and incorporated herein by reference; (iv) it is the sole owner of the Service or otherwise has full power and authority to grant to Customer the rights to use the Service and other rights granted herein; and (v) as of the Effective Date, and to Intenseye’s actual or constructive knowledge, neither the performance by Customer in its utilization of the Service, nor the license of and authorized use by Customer of the Service as described herein, do not infringe upon or misappropriate any proprietary or intellectual property right of any third party. Intenseye shall perform the technical support services in compliance with specialties of every specific technical issue and does not guarantee any solution regarding any technical issue.
9.3. Customer Representations and Warranties. Customer represents and warrants that: (a) its use of the Service, including any Customer Data provided by Customer for use with the Service or handling by Intenseye, will: (i) comply with any applicable law or regulation, (ii) not cause a breach of any agreement with or rights of any third party (including without limitation the rules of any social network platform or any data subject rights) and (iii) not unreasonably interfere with use of services offered by the Intenseye to third parties; and (b) it shall use the Service strictly in accordance with this Agreement and other written instructions (e.g., product documentation, release notes, mutually agreed SOWs, etc.) provided by Intenseye.
10. DISCLAIMERS
10.1. INTENSEYE DOES NOT MAKE ANY GUARANTEE OF IMPACT, OUTCOME, OR RESULTS. UNLESS OTHERWISE STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES INCLUDED IN OR OTHERWISE MADE AVAILABLE TO CUSTOMER THROUGH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. INTENSEYE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE SOFTWARE (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET CUSTOMER’S REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE. EXCEPT WHERE PROHIBITED BY LAW, INTENSEYE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY AND WILL NOT BE LIABLE FOR CUSTOMER’S USE OF OR RELIANCE ON THE SERVICES.
10.2. Intenseye disclaims any and all liability for the acts, omissions, and conduct of any third parties. To the extent permitted by applicable law, Intenseye makes no warranties regarding third party services, goods, resources, and information including, without limitation, warranties of fitness for a particular purpose, merchantability, and non-infringement and will not be liable for customer’s use of such third-party services, goods, resources or information.
10.3. With regard to any dispute between Customer and any of its employees, contractors, visitors, invitees, agents, customers, representatives or other third party (whether an individual or public or private entity) arising from or relating to Customer’s use of the Services, the analytics generated in connection with the Services, and/or Customer’s reliance on such analytics, Customer hereby releases Intenseye and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns, from all claims, demands, causes of action, liabilities, legal fees and costs, and damages (actual or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
10.4. The purpose of the Services provided by Intenseye is to provide technical solutions to help ensure the Customer's compliance with the applicable occupational health and safety legislation at the Customer's Facilities specified in the SOWs, limited to the scope of Services defined in the SOWs. In this context, Intenseye cannot be held liable in the event of any situation contrary to the relevant legislation, especially occupational accidents that may occur in the Facilities during the utilization of the Services. Accordingly, Intenseye shall not be held liable for any loss or damage, intangible, legal and financial consequences arising or resulting any acts or omissions by Customer, including acts or omissions made by Customer in reliance upon the analytics generated from the Customer Data collected, processed and reported in connection with the Services.
11. LIMITATION OF LIABILITY
Except with respect to a Party’s indemnification obligations herein (“Exceptions”), neither Party shall be liable to the other party or any third party for any consequential, incidental, indirect, exemplary, punitive or special damages (including damages for lost profits, security breach, lost data or loss of goodwill) arising out of, relating to or connected with the use of the Services, even if such Party has been advised of the possibility of such damages. To the extent permitted by applicable law, except with respect to the Exceptions, except for each Party’s liability for payment of fees and for infringement of intellectual property rights, in no event will either Party’s aggregate liability to the other Party, including that of its officers, directors, employees, and agents, arising out of or in connection with this Agreement exceed the fees paid or payable to Intenseye during the Subscription Term giving rise to the claim.
12. INDEMNITY
12.1. By Intenseye. To the maximum extent permitted by law, Intenseye agrees to indemnify, defend and hold harmless Customer, and its Customer subsidiaries, affiliates, officers, directors, shareholders, employees and each of their respective successors and assigns (the “Customer Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Customer Indemnified Parties arising out of or relating to a claim that the Services infringe another person's patent, copyright, trade secret or trademark. Intenseye will not have liability for, and Customer will defend Intenseye against, and pay any damages awarded against Intenseye and direct expenses, including reasonable attorneys' fees to the extent the claimed infringement would not have occurred but for (i) the use of the Services other than in accordance with Intenseye’s published instructions, (ii) any unauthorized modification or alteration of the Services by Customer, (iii) any combination or use of the Services with any other product or system or technologies not supplied by Intenseye or otherwise anticipated by this Agreement, (iv) Intenseye's compliance with Customer's design or specifications, and/or (v) any refusal to accept or use suitable modified or replacement of the Services provided by Intenseye to avoid infringement. In the event of claimed infringement, Intenseye shall, at its option: (A) obtain a right for Customer to continue using the Services for no additional fee; (B) modify the Services (as applicable) to make it non-infringing; (C) replace the Services (as applicable) with a non-infringing equivalent with the same functionality, features, and performance; or (D) terminate this Agreement and refund on a pro-rata basis the unused portion of the Fees.
12.2. By Customer. To the maximum extent permitted by law, Customer agrees to indemnify, defend and hold harmless Intenseye, and its Intenseye subsidiaries, affiliates, officers, directors, shareholders, employees and each of their respective successors and assigns (the “Intenseye Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Intenseye Indemnified Parties arising out of or relating to (i) Customer’s use of the Services in breach of this Agreement, (ii) Customer’s violation of any third party right, including without limitation any intellectual property right, publicity, property or privacy right, (iii) a breach of Customer’s representation or warranties under this Agreement, (iv) Customer’s failure to obtain the proper consents and/or authorizations to capture, process and/or transmit Customer Data to Intenseye, (v) Customer’s violation of applicable state and federal rules, regulations and statutes, (vi) bodily injury, death or property damage of Customer’s employees, contractors, visitors, invitees, agents, customers, representatives or other third party.
12.3. Notice. As a condition to an indemnifying Party’s (each, an “Indemnitor”) obligations under this Section, a Party entitled to indemnification (each, an “Indemnitee”) will: (i) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification; (ii) grant the Indemnitor sole control of the defense and settlement of the claim; (iii) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the claim; (iv) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim that involves a remedy other than payment without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.
13. RENEWAL AND TERMINATION
13.1. Renewal. Except as otherwise specified in the SOW, Services (the relevant SOW) will automatically renew for additional periods equal to the expiring Subscription Term, unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the applicable Subscription Term. The Fees for the automatic renewal term will increase five percent (5%) unless the Parties reach a different written agreement before the end of the applicable Subscription Term.
13.2. Automatic Termination. This Agreement shall automatically terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either Party’s debts, (ii) upon either Party making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business.
13.3. Termination for Cause. Either Party may terminate this Agreement if the other Party breaches any material provisions of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
13.4. Survival. The following Sections survive termination of this Agreement: Promotional License, Confidentiality & Non-Disclosure, Disclaimers, Indemnity, Limitation of Liability, and Governing Law.
14. GENERAL PROVISIONS
14.1. Affiliates. Any Affiliate of Customer will have the right to enter into a SOW executed by such Affiliate and Intenseye and this Agreement will apply to each such SOW as if such Affiliate were a signatory to this Agreement. With respect to such SOWs, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate.
14.2. Force Majeure. Neither party will be deemed in breach of this Agreement if the failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service attacks, but only if (a) such party gives prompt written notice to the other party of the force majeure event, and (b) such failure or delay results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes. The time for performance will be extended for a period equal to the duration of the force majeure event.
14.3. Relationship of the Parties. The parties’ relationship is strictly that of independent contractors and this Agreement do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has the power to bind the other, make any warranties or representations, or incur, assume, or create obligations on the other’s behalf without the other’s prior written consent and each party agrees that it will not perform any act or omission to the contrary.
14.4. Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
14.5. Modifications. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
14.6. Assignment. Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld. However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.
14.7. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
14.8. No Waiver. No failure or delay by a party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
14.9. Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
14.10. Notices. All notices required or permitted to be given under this Agreement will be in writing and delivered to Intenseye and to Customer at the addresses provided in the SOW.
14.11. Governing Law and Venue. This Agreement and the rights and obligations of the Parties under this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to the principles thereof relating to the conflicts of laws. In addition, the Parties mutually acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, shall not be governed by the Uniform Commercial Code of any state having or claiming jurisdiction. The Parties consent to the jurisdiction of the State of New York, and venue in New York County, with regard to any controversy or claim arising out of or relating to this Agreement including any Annex, Schedules, SOW, order form and the transactions contemplated therein, or the breach thereof.
14.12. Execution and Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature (e.g., DocuSign) complying with the U.S. Federal ESIGN Act of 2000, Uniform Electronic Transactions Act, or other applicable law) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
14.13. Entire Agreement and Construction. This Agreement and any SOWs constitute the entire and exclusive agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. Except as contemplated to the contrary herein with respect to SOWs, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. In the event of any conflict between the provisions in this Agreement and any SOW, the SOW will take precedence solely in connection with those specific Services set forth in such SOW and the delivery thereof. In all other instances, this Agreement shall govern and control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order issued by Customer or in any other Customer order documentation shall be incorporated into or form any part of this Agreement.
ANNEX 1: Service Level Agreement
This Service Level Agreement (“SLA”) is an integral part of License Agreement and sets forth Intenseye’s service level targets associated with the Services as follows. This SLA is only applicable for cases where support is provided to the Customer via remote access to Customer systems.
1. Definitions
Except as otherwise modified or defined herein, all capitalized terms in this SLA have the same meanings as set forth in the License Agreement. For purposes of this SLA, the following definitions will apply.
- “Planned Maintenance” means the window during which weekly scheduled maintenance of the Service may be performed.
- “Emergency Maintenance” means any time outside of the Planned Maintenance window that Intenseye is required to apply urgent patches or fixes or undertake other urgent maintenance activities.
- “Total Scheduled Availability” means seven (7) days per week, twenty-four (24) hours per day, excluding Planned Maintenance and Emergency Maintenance.
- “Downtime” means the time that users of the Services are not able to (a) access the Services, (b) perform ordinary functions to use or receive Services in accordance with specifications, or (c) utilize the Services for normal business operations due to failure malfunction or delay. Downtime does not include any unavailability of the System Services due to Planned Maintenance, Emergency Maintenance, or Unavailability Exceptions.
- “Actual Availability” means Total Scheduled Availability minus Downtime.
- “System Service Availability” will be calculated on a monthly basis using the following formula: [(Actual Availability) divided by (Total Scheduled Availability) multiplied by 100%]
- “Unavailability Exceptions” has the meaning set forth in Article 6.
2. Integration
The Service Software is installed on cloud servers designated by Intenseye and the Customer will access the Service Software remotely. Intenseye is obliged to provide the Customer with access to the Service Software on the relevant server as soon as possible after the conclusion of this Agreement.
Users who will use the Service Software shall be determined by the Customer. The Customer agrees that it shall be solely responsible for all transactions that its users will perform through the Service Software.
All matters relating to the use and security of access tools such as usernames and passwords that may be provided by Intenseye to the Customer for the use of the Service Software shall be the sole responsibility of the Customer and the users designated by the Customer, and all works and transactions made through the Service Software with these access tools shall be deemed to have been made by the Customer. Intenseye shall not be held liable for any damages that may arise to the Customer and third parties due to the acquisition of these access tools by others.
3. System Service Availability
Subject to the terms of this SLA, Intenseye will provide System Service Availability commitment for a given calendar month at 99%.
Planned Maintenance consists of four (4) hours for weekly maintenance, four (4) hours for monthly maintenance, and four (4) hours for quarterly maintenance. Weekly maintenance begins at 12 am (Eastern) on Fridays; monthly maintenance begins at 2:00 am (Eastern) on the last Saturday of each month, and quarterly maintenance begins at 6:00 am (Eastern) on the last Saturday of each quarter. All times are subject to change upon reasonable notice. If Emergency Maintenance is required, Intenseye will contact the Customer and provide the expected start time and the planned duration of the Emergency Maintenance.
The measurement point for System Service Availability is the availability of the Service Software at the Intenseye data center’s Internet connection points. Customer may request an availability report not more than once per month via the Customer Support.
4. Camera Connection Service Availability
Intenseye’s Camera Connection Service Availability commitment for a given calendar month is 99%. The availability is calculated as a percentage of the total time during the camera connection is available to outside networks via defined ports to the whitelisted IP addresses with sufficient bandwidth available during each calendar month, excluding Planned Maintenance, Emergency Maintenance, and the Unavailability Exceptions. For purposes of calculating the Camera Connection Service Availability, only downtime exceeding 10 minutes will apply.
5. Customer’s Responsibilities
Customer must: (a) provide remote access to its systems for Intenseye to fulfill its obligations under the SLA, (b) provide a contact in their IT department which will be available for setting up the configuration between Service Software and Customer’s internal camera network, (c) set up port forwarding entries, whitelist the Intenseye external IP addresses in accordance with the Service Software documentation provided to the Customer, (d) set up camera configuration in accordance with the Service Software use cases and minimum bandwidth requirements document provided to the Customer, (e) keep the camera firmware up to date, and (f) maintain the minimum required bandwidth available, keep camera network status healthy and accessible to Service Software.
6. Unavailability Exceptions
The Services will not be considered unavailable for any outage caused by (i) acts or omissions of Customer, its employees, or agents, (iii) Customer or other third-party equipment, software, hardware or network infrastructure, (iv) factors outside of Intenseye’s reasonable control, including any Force Majeure events, denial-of-service attacks, Customer’s internet access, or issues with the underlying server beyond the demarcation point of the Services.
7. Updates
Intenseye will update the Services and make available to Customer any and all patches, enhancements, updates, upgrades, and new versions of the Services that Intenseye makes generally commercially available (“Updates”) and any such Updates will be deemed part of the Services. If there is downtime to be expected with the Update, the update will be performed during the weekend following any Planned Maintenance. Customers shall provide a named Update contact, to schedule and manage Customer through its Update process.
8. Service Response
Intenseye’s Service Response commitment is (i) not less than 50% of (online) transactions in two (2) seconds or less and (ii) not more than 10% in ten (10) seconds or more. Service Response is the processing time of the Service Software in the Intenseye data center to complete transactions submitted from a web browser. This Service Response commitment excludes requests submitted via Intenseye API. The time required to complete the request will be measured from the point in time when the request has been fully received by the encryption endpoint in the Intenseye data center, until such time as the response begins to be returned for transmission to Customer. Customer may request a response time report not more than once per month.
9. Severity Level Determination
Customer shall reasonably self-diagnose each support issue in accordance with the table set forth below and report to Intenseye an appropriate Severity Level designation. Intenseye shall validate Customer’s Severity Level designation, or notify Customer of a proposed change in the Severity Level designation to a higher or lower level with justification for the proposal. In the event of a conflict regarding the appropriate Severity Level designation, each party shall promptly escalate such conflict to its management team for resolution through consultation between the parties’ management, during which time the parties shall continue to handle the support issue in accordance with the Intenseye Severity Level designation. In the rare case a conflict requires a management discussion, both parties shall be available within one hour of the escalation.
10. SLA Credits
If Intenseye fails to meet any of the Service Levels, Intenseye will issue credits to Customer excluding the taxes, calculated as follows (the “SLA Credit”).
If the System Availability during any given month falls below 99%, Intenseye will provide Customer with a SLA Credit equal to the percentage of the total monthly Fee (calculated on a pro rata basis if fees are invoiced other than monthly) applicable to the month in which the Service Level failure occurred corresponding to the System Availability Level in the chart below:
To receive SLA Credits, Customer must submit a written request to legal@intenseye.com within 30 days after the end of the month in which the Services failed to meet the Services Availability commitments set forth herein, with sufficient evidence (including a description of the incident and duration of the incident) or Customer’s right to receive SLA Credits with respect to such unavailability will be waived. If Customer is not current in its payment obligations when an outage occurs, remedies may accrue, but SLA Credits will not be issued until Customer becomes current in its payment obligations.
11. Business Continuity and Disaster Recovery Plan
Intenseye will maintain an appropriate disaster recovery and business continuity system in place in accordance with good industry practice that, in the event of emergency or failure (including in connection with a force majeure event), ensures the continued performance of the Services in accordance with this SLA. The procedures will be provided to Customer upon written request.
12. Technical Assistance; Case Submittal and Reporting
Intenseye will provide Customer with 24x7x365 technical assistance in accordance with this SLA. The Customer may submit cases to their dedicated support engineer. Named Support contacts must be trained on the Intenseye product(s) for which they initiate support requests. Intenseye will respond to each case in accordance with this SLA and will use commercially reasonable efforts to promptly resolve each case.
ANNEX 2: Data Processing Addendum
This Data Processing Addendum (“DPA”) is incorporated by reference into Master Software as a Service (SaaS) Agreement or End Customer License Agreement (“SaaS Agreement”) entered by and between the Customer (as defined in the Saas Agreement) and Intenseye to reflect the Parties’ agreement with regard to the Processing of Personal Data by Intenseye solely on behalf of the Customer.
In this DPA, the Customer is hereinafter referred to as “Data Controller”; and Intenseye is hereinafter referred to as "Data Processor".
Capitalized terms not defined herein shall have the meanings assigned to such terms in the SaaS Agreement.
By signing the SaaS Agreement, the Customer accepts this DPA.
1. DEFINITIONS AND INTERPRETATION
- “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et. seq.
- “Applicable Law” means all applicable and binding privacy and data protection laws and regulations, including such laws and regulations of the European Union, the European Economic Area and their Member States, Switzerland, the United Kingdom, Canada and the United States of America, as applicable to the Processing of Personal Data under the SaaS Agreement including (without limitation) the GDPR, the UK GDPR, and the US State Privacy Laws, as applicable to the Processing of Personal Data hereunder and in effect at the time of Data Processor’s performance hereunder; which shall be determined based on where the Parties are located, where the Processing of Personal Data occurs, the relevant provisions of the national/supranational data protection laws and conflict of laws regulations.
- “Data Breach” any accidental or unlawful destruction, loss, alteration, compromise, disclosure of, or access to Personal Data, stored, transmitted or otherwise processed in the context of the SaaS Agreement.
- “Data Controller” is the party that determines the purposes and means of the Processing of Personal Data, which is the Customer and/or its Affiliates within the scope of the SaaS Agreement.
- “Data Processor” is the party that Processes Personal Data on behalf of the Data Controller which is Intenseye or its Affiliates within the scope of the SaaS Agreement.
- “Data Subject” is the identified or identifiable natural person that the Personal Data is related to.
- “Data Transfer” means a transfer of Personal Data from the Customer to a Data Processor; or an onward transfer of Personal Data from a Data Processor to a Sub-processor, or between two establishments of a Data Processor.
- "GDPR” means the General Data Protection Regulation (EU) 2016/679.
- “Personal Data” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to or with an identified or identifiable natural person, which is processed by Intenseye solely on behalf of the Customer, under this DPA and the SaaS Agreement between the Customer and Intenseye.
- “SaaS Agreement” means the agreement that is entered into between the Customer and Intenseye for the provision of Services to the Customer and its annexes.
- “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
- “Sensitive Data” means Personal Data that is protected under a special legislation and requires unique treatment, such as “special categories of data”, “sensitive data” or other materially similar terms under Applicable Law, which may include any of the following depending on the Applicable Law: (a) social security number, tax file number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) financial and credit information including credit or debit card number; (c) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, (d) genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, (e) data relating to criminal convictions and offenses; and/or (f) account passwords in unhashed form.
- “Services” means the services Intenseye provides in pursuance to the SaaS Agreement.
- “Standard Contractual Clauses” means the Standard Contractual Clauses between Data Controllers and Data Processors as approved by the European Commission Implementing Decision (EU) 2021/914 of 4 June 2021.
- “Sub-processor” means any third party that processes Personal Data under the instruction or supervision of Intenseye.
- “UK GDPR” means the Data Protection Act 2018, as well as the GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 (SI 2019/419).
- “US State Privacy Laws” means all state laws relating to the protection and processing of personal data in effect in the United States of America, which may include, without limitation, the CCPA, the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, and the Utah Consumer Privacy Act.
2. DETAILS OF DATA PROCESSING
2.1. Roles of the Parties. The Parties acknowledge and agree that regarding the Processing of Personal Data, the Customer is the Data Controller and Intenseye is the Data Processor. In some circumstances, the Customer may be the Data Processor, in which case the Customer appoints Intenseye as the Customer’s sub-processor, which shall not change the obligations of either the Customer or Intenseye under this DPA, as Intenseye will remain a Data Processor with respect to the Customer in such event.
2.2. Data Controller’s Processing of Personal Data. Data Controller, in its use of the Services, and Data Controller’s instructions to the Data Processor, shall comply with Applicable Law. Data Controller shall establish and have all required legal bases in order to collect, Process and Transfer to Data Processor the Personal Data, and to authorise the Processing and (if necessary) Transfer by Data Processor, and for Data Processor’s Processing activities on Data Controller’s behalf. Data Controller accepts and declares that none of the Personal Data it Transfers to Data Processor is subject to any legal dispute and it possesses all legal rights stipulated under the Applicable Law and any other contract or document that may be binding for Data Controller in order to Process and Transfer such Personal Data.
2.3. Data Processor’s Processing of Personal Data. Data Processor, when Processing on the Data Controller’s behalf under the SaaS Agreement, shall Process Personal Data for the following purposes:
(i) Processing in accordance with the SaaS Agreement and this DPA;
(ii) Processing for the Data Controller as part of its provision of the Services;
(iii) Processing to comply with the Data Controller’s reasonable and documented instructions, where such instructions are consistent with the terms of the SaaS Agreement regarding the manner in which the Processing shall be performed;
(iv) Processing as required under the Applicable Law, and/or as required by a court of competent jurisdiction or other competent governmental authority, provided that Data Processor shall inform Data Controller of the legal requirement before Processing, unless such law or order prohibit such disclosure on important grounds of public interest.
2.4. Purpose Limitation. Data Processor will process personal data in order to provide the Services in accordance with the SaaS Agreement. Schedule 1 (Details and Description of Processing) of this DPA further specifies the nature and purpose of the processing, the processing activities, the duration of the processing, the types of personal data and categories of data subjects.
2.5. Sensitive and Biometric Data. The Parties agree that Services is not intended for the Processing of Sensitive Data and Biometric Data, and the Data Processor does not Process Sensitive and Biometric Data while providing Services.
2.6. No Sale of Personal Information. Data Processor certifies that it understands the rules, requirements, and definitions of the CCPA and shall not sell (as such term is defined in the CCPA) any Personal Data Processed hereunder nor take any action that would cause any transfer of Personal Data to or from Data Processor under the SaaS Agreement or this DPA to qualify as “selling” such Personal Data under the CCPA.
3. OBLIGATIONS OF THE DATA PROCESSOR
3.1. The Data Processor Shall:
- not Process any Personal Data other than in accordance with the Data Controller’s instructions (including the instructions as set out in Schedule 1 (Details and Description of Processing), unless otherwise required under Applicable Law and SaaS Agreement signed between the Parties;
- keep all Personal Data strictly confidential and ensure, prior to the disclosure of Personal Data to its employees, subcontractors or employees of subcontractors, that these persons are bound by the same conditions of confidentiality;
- only store the Personal Data for as long as the Data Controller requires and correct, anonymize, block or delete the relevant Personal Data at the Data Controller’s instructions (in such cases, Intenseye shall not be liable for being unable to perform the Services in full compliance with the SaaS Agreement and its annexes directly due to the Data Controller’s referred instruction);
- ensure that the only persons able to process or access any particular Personal Data in Data Processor’s or Sub-processor’s possession or control in the performance of the SaaS Agreement are the Data Processor’s or Sub-processor’s employees who need to process or access such Personal Data in order to carry out their duties in connection with the SaaS Agreement;
- ensure that any person who is authorised by Data Processor to process Customer Data (including its staff, agents, and subcontractors) shall be under an appropriate obligation of confidentiality (whether a contractual or statutory duty);
- taking into account the nature of the processing, assist the Data Controller by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Data Controller's obligation to respond to requests for exercising the data subject's rights laid down the Applicable Law; and
- comply with all relevant obligations applicable to data processors under the Applicable Law.
4. OBLIGATIONS OF THE DATA PROCESSOR
4.1. The Data Processor shall adopt and maintain an appropriate level of technical and organizational measures to maintain Personal Data and prevent any unlawful Processing of or access to Personal Data. Such technical and organizational measures may at least include measures as set out in Schedule 3 (Technical and Organizational Measures) depending on the nature of the Personal Data Transferred and the Processing conducted by the Data Processor.
4.2. The Data Processor shall ensure that the technical and organizational measures as set out in Schedule 3 (Technical and Organizational Measures) are appropriate, taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of persons, that, where appropriate, may include, pseudonymization, encryption, the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, etc.
5. NOTIFICATION OF DATA BREACH
5.1. Upon becoming aware of a Data Breach, Intenseye shall:
(i) notify Customer without undue delay, and where feasible, in any event no later than 72 hours from becoming aware of the Data Breach;
(ii) provide timely information relating to the Data Breach as it becomes known or as is reasonably requested by Customer; and
(iii) promptly take reasonable steps to contain and investigate any Data Breach. Intenseye’s notification of or response to a Data Breach under this DPA shall not be construed as an acknowledgment by Intenseye of any fault or liability with respect to the Data Breach.
5.2. The notification will include sufficient details including the time of the event, the nature and scale of such event, the nature and scope of Personal Data records concerned, measures taken or to be taken to mitigate the consequences of the Data Breach, etc.
5.3. Intenseye shall without delay take all reasonable measures to reduce and recover the negative impact of a Data Breach.
6. SUB-PROCESSORS
6.1. Data Processor may respectively engage third-party Sub-processors in connection with the provision of the Services and has the Data Controller’s general authorization for the engagement of sub-processor(s) from an agreed list, as outlined in Schedule 2 (Sub-processors). Data Processor shall inform Data Controller of any intended changes concerning the addition or replacement of Sub-processors listed in Schedule 2, thereby giving Data Controller the opportunity to object to such changes.
6.2. Intenseye’s current list of Sub-Processors used to process Personal Data can be viewed on https://www.intenseye.com. The Sub-processor List includes the identities of the Sub-processors and their entity’s country. The Data Controller is deemed to authorize the Data Processor’s Sub-Processors upon first use of the Services. Data Processor agrees to provide notice to the Data Controller when adding or making changes to the Subprocessors; this notice will be given via email. Data Controller may object to the newly added Sub-processors within ten (10) days following Data Processor’s notification. In case of such objection, Intenseye will not Transfer Data Controller’s Personal Data to the relevant Sub-processor. However in such cases, Intenseye shall not be liable for being unable to perform the Services in full compliance with the SaaS Agreement and its annexes directly due to its inability to procure such Sub-processor’s services or establish any other kind of relationship with such Sub-processor.
6.3. The Data Processor shall not engage a Sub-processor, unless the Data Processor enters into data processing agreements with the relevant Sub-processors which requires the Sub-processor to abide by the data protection obligations equivalent to those in this DPA. The Data Processor is fully responsible for the fulfilling of the obligations of the data processing agreement between the Data Processor and the Sub-processor.
6.4. Data Processor will be liable for the actions and omissions of its Sub-processors undertaken in connection with Data Processor’s performance under this DPA to the same extent Data Processor would be liable if performing the Services directly.
7. INTERNATIONAL DATA TRANSFERS
7.1. Intenseye shall comply with the provisions of the SaaS Agreement, this DPA, Applicable Law and decisions and instructions of the Data Processor and the competent supervisory authority, with regards to the Transfer of Personal Data to countries outside the Data Subjects’ country of residence. Data Controller’s legal obligations as data controller under Applicable Law are reserved.
7.2. In case the Data Controller’s Applicable Law is GDPR or UK GDPR and the Data Subjects are based in EU or UK, the Data Processor shall not Transfer Personal Data to a country outside the country of residence of the Data Subjects whose Personal Data is being processed except for transfers to or within the European Economic Area (”EEA”), unless the transfer is:
- To a country offering an adequate level of protection according to the EU ‘adequacy decision’; or
- Based on the EU Standard Contractual Clauses for transfers between a Data Controller and a Data Processor.
8. DATA SUBJECT RIGHTS
8.1. The Data Processor shall provide all reasonable assistance to ensure that the Data Controller is able to fulfill its legal obligations when a data subject exercises his or her rights under the Applicable Law.
8.2. As soon as the Data Processor receives a request from a Data Subject, the Data Processor shall promptly inform the Data Controller. The Data Processor shall not respond to the request without the consent of the Data Controller.
8.3. On the instruction of the Data Controller, the Data Processor shall, without delay, correct, erase or otherwise adjust or process Personal Data.
9. AUDIT RIGHTS
9.1. Data Processor shall make available to the Data Controller on request all information reasonably required to demonstrate compliance with the obligations regarding the protection of Personal Data under this DPA.
9.2. Subject to this Section, Data Processor shall allow for and contribute to audits, including inspections, by Data Controller or an auditor mandated by Data Controller in relation to the Processing of the Personal Data by the Intenseye and who is bound with confidentiality obligations at least equivalent to those binding for Data Controller, provided that Data Controller informs Data Processor of such audit with a written notice in advance (no later than 48 hours before such audit). The expenses of an audit shall be borne by Data Controller unless Data Controller discovers a gross breach of this DPA by Data Processor, in which case the costs of the audit shall be borne by Data Processor.
9.3. Information and audit rights of the Data Controller pursuant to this clause only arise to the extent that compliance cannot be adequately demonstrated in accordance with this clause or the SaaS Agreement does not otherwise give them information and audit rights to ensure that Data Processor meets the relevant requirements of Applicable Law . In addition, Intenseye shall not be liable to disclose any information that (i) it is obligated to keep confidential under Applicable Law, (ii) are confidential information, intellectual property and/or trade secrets of a third party, and (iii) are confidential information, intellectual property and/or trade secrets of Intenseye and is not directly related to the Services provided to Customer by Intenseye under the SaaS Agreement.
10. DATA PROTECTION IMPACT ASSESSMENT
Intenseye shall provide reasonable assistance to Customer with any data protection impact assessments, and prior consultations with supervising authorities or other competent data privacy authorities, as required under Applicable Law, in each case solely in relation to Processing of Personal Data by and taking into account the nature of the Processing and information available to the Data Processor.
11. LIABILITY
Each Party is liable for and indemnifies and hold the other Party harmless from all (i) damages; and (ii) fines imposed by regulators, which arises from or in connection with or pursuant to any negligent act or omission of or the performance of the Parties’ obligations under this DPA.
12. TERM AND TERMINATION
This DPA shall remain in force until the termination of the SaaS Agreement. Parties agree that on the day of termination of this DPA, the Data Processor shall, at the choice and by means and costs of the Data Controller, delete or return all Personal Data and the copies thereof to the Data Controller or a third party designated by the Data Controller, except where storage of copies is legally required.
13. GENERAL
All other terms and conditions of the SaaS Agreement remain in full force and effect. In the event of any conflict between certain provisions of this DPA and the provisions of the SaaS Agreement, the provisions of this DPA shall prevail over the conflicting provisions of the SaaS Agreement solely with respect to the Processing of Personal Data.
ANNEX 3: Sub-Processors
Last update: February 01, 2024
To support delivery of our Services, Intenseye, Inc. may engage and use data processors with access to certain Customer Data (each, a "Subprocessor"). This page provides important information about the identity, location and role of each Subprocessor. Terms used on this page but not defined have the meaning set forth in the Master SaaS Agreement (or if applicable, the superseding written agreement between Customer and Intenseye) (the "Agreement").
Intenseye currently uses Subprocessors to provide cloud storage, infrastructure services, and to help us provide customer support and email notifications. Prior to engaging any third party Subprocessor, Intenseye performs diligence to evaluate their privacy, security and confidentiality practices, and executes an agreement implementing its applicable obligations.
Amazon Web Services, Inc
- Type of Service: Hosting and Infrastructure
- Purpose: Used for hosting services, file storage and backup services
- Location/Hosting Region: European Union
- Link to Legal / Privacy Portal(s): AWS Legal Portal
Google LLC
- Type of Service: Cloud computing provider, statistical reporting
- Purpose: Used as a cloud computing provider for flipbook statistics
- Location/Hosting Region: European Union
- Link to Legal / Privacy Portal(s): Google Cloud Terms
Amplitude, Inc.
- Type of Service: Product Analytics
- Purpose: Used for tracking user behavior on our platforms to improve product offerings and customer experience.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://amplitude.com/privacy
Auth0 (Okta, Inc.)
- Type of Service: Identity Management
- Purpose: Used for secure authentication and authorization services across applications.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.okta.com/privacy-policy/
Chili Piper, Inc.
- Type of Service: Appointment Scheduling
- Purpose: Used for scheduling meetings and appointments with customers more efficiently.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.chilipiper.com/privacy-policy
DocuSign, Inc.
- Type of Service: Electronic Signature Technology
- Purpose: Used for managing electronic agreements including the ability to sign documents digitally.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.docusign.com/company/privacy-policy
Gong.io, Inc.
- Type of Service: Conversation Analytics
- Purpose: Used for capturing and analyzing conversations with customers to improve sales strategies and customer engagement.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.gong.io/privacy-policy
HubSpot, Inc.
- Type of Service: Customer Relationship Management
- Purpose: Used for managing and analyzing customer interactions and data throughout the customer lifecycle.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://legal.hubspot.com/privacy-policy
Intercom, Inc.
- Type of Service: Customer Messaging Platform
- Purpose: Used for communicating with customers through a variety of channels including chat, email, and social media.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.intercom.com/legal/privacy
Microsoft Corporation
- Type of Service: Productivity Software
- Purpose: Used for productivity and collaboration tools
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://privacy.microsoft.com/en-us/privacystatement
Planhat AB
- Type of Service: Customer Success Platform
- Purpose: Used for managing customer relationships, reducing churn and increasing upsell.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.planhat.com/data-protection-and-privacy-policy/
Notion Labs, Inc.
- Type of Service: Collaboration and Productivity Software
- Purpose: Used for note-taking, knowledge sharing, project management, and collaboration within teams.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.notion.so/Privacy-Policy-3468d120cf614d4c9014c09f6adc9091
PandaDoc, Inc.
- Type of Service: Document Automation Software
- Purpose: Used for creating, approving, and eSigning proposals, quotes, and contracts.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.pandadoc.com/privacy-policy
Productboard, Inc.
- Type of Service: Product Management
- Purpose: Used for understanding what users need, prioritizing what to build and rallying everyone around the roadmap.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.productboard.com/privacy-policy
Salesforce.com, Inc.
- Type of Service: Customer Relationship Management
- Purpose: Used for managing and analyzing customer interactions and data throughout the customer lifecycle.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.salesforce.com/company/privacy/
Segment.io, Inc.
- Type of Service: Customer Data Infrastructure
- Purpose: Used for collecting, cleaning, and controlling customer data.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://segment.com/legal/privacy
Slack Technologies, Inc.
- Type of Service: Collaboration Hub
- Purpose: Used for team communication and collaboration.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://slack.com/privacy-policy
Twilio, Inc.
- Type of Service: Cloud Communications Platform
- Purpose: Used for programmable communication functions such as voice, text, chat and video.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://www.twilio.com/legal/privacy
Zoom Video Communications, Inc.
- Type of Service: Video Conferencing
- Purpose: Used for remote conferencing services using cloud computing. It provides a remote conferencing service that combines video conferencing, online meetings, chat, and mobile collaboration.
- Location/Hosting Region: United States, European Union
- Link to Legal / Privacy Portal(s): https://zoom.us/privacy