Terms of Sale - End User Agreement

This End User Agreement (“Agreement“) governs the use of Anviz’s enterprise video surveillance platform for video security (“Software“) and related hardware (“Hardware“) (collectively, the “Products“), and is entered into between Anviz, Inc. (“Anviz“) and Customer, the customer and/or end user of Anviz’s Products (“Customer“, or “User”), either in connection with a purchase of the Products or use of the Products for evaluation purposes as part of a free trial.

By accepting this Agreement, whether by clicking a box indicating its acceptance, navigating through a login page where a link to this Agreement is provided, commencing a free trial of the Products, or executing a Purchase Order that references this Agreement, Customer agrees to the terms of this Agreement. If Customer and Anviz have executed a written agreement governing Customer’s access to and use of the Products, then the terms of such signed agreement will govern and will supersede this Agreement.

This Agreement is effective as of the earlier of the date that Customer accepts the terms of this Agreement as indicated above or first accesses or uses any of the Products (the “Effective Date“). Anviz reserves the right to modify or update the terms of this Agreement in its discretion, the effective date of which will be the earlier of (i) 30 days from the date of such update or modification and (ii) Customer’s continued use of the Products.

Anviz and Customer hereby agree as follows.

1. DEFINITIONS

The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.

“Customer Data“ means data (e.g., video and audio recordings) provided by Customer via the Software, and data related to privacy police at www.aniz.com/privacy-policy. “Documentation“ means the online documentation regarding the Hardware, available at www.anviz.com/products/

“License“ has the meaning ascribed to it in Section 2.1.

“License Term“ means the length of time indicated in the License SKU set forth on the applicable Purchase Order.

“Partner“ means a third-party authorized by Anviz to resell the Products, from whom Customer has entered into a Purchase Order for such Products.

“Products“ means, collectively, the Software, Hardware, Documentation, and all modifications, updates, and upgrades thereto and derivative works thereof.

“Purchase Order“ means each order document submitted to Anviz by Customer (or a Partner), and accepted by Anviz, indicating Customer’s (or Partner’s) firm commitment to purchase the Products and for the prices listed thereon.

“Support“ means the technical support services and resources available at www.Anviz.com/support.

“Users“ means employees of Customer, or other third parties, each of whom are authorized by Customer to use the Products.

2. LICENSE AND RESTRICTIONS

• License to Customer.  Subject to the terms of this Agreement, Anviz grants Customer a royalty-free, nonexclusive, nontransferable, worldwide right during each License Term to use the Software, subject to the terms of this Agreement (“License“). Customer must purchase a License to the Software for at least the number of Hardware units it manages with the Software. Accordingly, Customer may only use the Software with up to the number and type of Hardware units specified on the applicable Purchase Order, however Customer may authorize an unlimited number of Users to access and use the Software. If Customer purchases additional Licenses, the License Term will be modified such that the License Term for all Licenses purchased will terminate on the same date. The Products are not intended to be used as part of any life-saving or emergency systems, and Customer will not use the Products in any such environment.
• License to Anviz.  During the License Term, Customer will transfer Customer Data to Anviz while using the Products. Customer grants Anviz a non-exclusive right and license to use, reproduce, modify, store, and process Customer Data solely to provide the Products to Customer. Customer represents and warrants that it possesses the necessary rights and consents to grant Anviz the rights set forth in this Section 2.2 with respect to Customer Data.
• Restrictions.  Customer will not: (i) use or allow a third party to use the Products in order to monitor their availability, security, performance, or functionality, or for any other benchmarking or competitive purposes without Anviz’s express written consent; (ii) market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit the Products; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Products or any of their components; or (iv) use the Products to conduct any fraudulent, malicious, or illegal activities or otherwise in contravention of any applicable laws or regulations (each of (i) through (iv), a “Prohibited Use“).

3. HARDWARE WARRANTIES; RETURNS

• General.  Anviz represents to the original purchaser of the Hardware that for a period of 10 years from the date of shipment to the location specified on the Purchase Order, the Hardware will be substantially free of defects in materials and workmanship (“Hardware Warranty“).
• Remedies.  Customer’s sole and exclusive remedy and Anviz’s (and its suppliers’ and licensors') sole and exclusive liability for a breach of the Hardware Warranty will be, in Anviz’s sole discretion, to replace the non-conforming Hardware. Replacement may be made with a new or refurbished product or components. If the Hardware or a component within it is no longer available, then Anviz may replace the Hardware unit with a similar product of similar function. Any Hardware unit that has been replaced under the Hardware Warranty will be covered by the terms of the Hardware Warranty for the longer of (a) 90 days from the date of the delivery, or (b) the remainder of the original 10-year Hardware Warranty period.
• Returns.  Customer may return the Products within 30 days from the date of the applicable Purchase Order for any reason. Thereafter, to request a return under the Hardware Warranty, Customer must notify Anviz (or if the Products were purchased by Customer through a Partner, Customer may notify the Partner) within the Hardware Warranty period. To initiate a return directly to Anviz, Customer must send a return request to Anviz at support@anviz.com and clearly state details on where and when Customer purchased the Hardware, the serial numbers of the applicable Hardware unit(s), Customer’s reason for returning the Hardware, and Customer’s name, mailing address, email address, and daytime phone number. If approved in Anviz’s sole discretion, Anviz will provide Customer with a Return Materials Authorization (“RMA“) and prepaid shipping label via email that must be included with Customer’s return shipment to Anviz. Customer must return the Hardware unit(s) listed in the RMA with all included accessories with the RMA within the 14 days following the day on which Anviz issued the RMA. Anviz will replace the Hardware in its sole discretion.

4. Anviz OBLIGATIONS

• General.  Anviz is responsible for providing the Products in conformance with this Agreement, the Purchase Order(s), and applicable Documentation.
• Availability.  Anviz uses its best efforts to ensure that the Software it hosts as a cloud-based solution is available in accordance with the terms of the Service Level Agreement, which sets forth Customer’s remedies for any interruptions in the availability of the Software.
• Support.  If Customer experiences any errors, bugs, or other issues in its use of the Products, then Anviz will provide Support in order to resolve the issue or provide a suitable workaround. The fee for Support is included in the cost of the License. As part of Anviz's delivery of Support and training, Customer understands that Anviz may access and use Customer's account at its request.

5. CUSTOMER OBLIGATIONS

• Compliance.  Customer will use the Products only in accordance with the Documentation and in compliance with all applicable laws, including the export laws and regulations of the United States or any other country. Customer will ensure that none of the Products are directly or indirectly exported, re-exported, or used to provide services in violation of such export laws and regulations. If Customer operates in a regulated industry, Customer has obtained all necessary local and state licenses and/or permits necessary to operate its business and is in compliance (and will use its best efforts to remain in compliance) with all local, state, and (if applicable) federal regulations regarding the conduct of its business. Anviz reserves the right to suspend use of any Products operating in violation of such laws, following written notice to Customer (which may take the form of an email).
• Computing Environment.  Customer is responsible for the maintenance and security of its own network and computing environment that it uses to access the Software.

6. TERM AND TERMINATION

• Term.  The term of this Agreement will commence on the Effective Date and will continue for so long as Customer maintains any active Licenses.
• Termination for Cause.  Either party may terminate this Agreement or any License Term for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of the 30-day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
• Effect of Termination.  If Customer terminates this Agreement or any License Term in accordance with Section 6.2, then Anviz will refund Customer a pro rata portion of any prepaid fees allocable to the remaining License Term. The following provisions will survive any expiration or termination of the Agreement: Sections 8, 9, 10, 12, and 13, and any other provisions that, by their nature, would reasonably be considered intended to survive.

7. FEES AND SHIPPING

• Fees. If Customer purchases the Products directly from Anviz, then Customer will pay the fees for the Products set forth on the applicable Purchase Order as specified in this Section 7. Any terms included by Customer on a Purchase Order that conflict with the terms of this Agreement will not be binding on Anviz. If Customer purchases the Products from a Partner of Anviz, then all payment and shipping terms will be as agreed between Customer and such Partner.
• Shipping. Customer’s Purchase Order must state Customer’s account number with the intended carrier. Anviz will ship Products pursuant to the applicable Purchase Order under the specified carrier account. If Customer does not provide its carrier account information, Anviz will ship under its account and invoice Customer for all related shipping costs. Following acceptance of the Purchase Order, and shipment of the Products, Anviz will submit an invoice to Customer for the Products, and payment will be due 30 days from the date of the invoice (“Due Date“). Anviz will ship all Hardware to the location specified on the Purchase Order Ex Works (INCOTERMS 2010) Anviz’s shipping point, at which time title and risk of loss will pass to Customer.
• Overdue Charges. If any undisputed, invoiced amount is not received by Anviz by the Due Date, then (i) those charges may accrue late interest at the rate of 3.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and (ii) Anviz may condition the purchase of future Products on receipt of payment for previous Product and/or payment terms shorter than those specified on the previous Purchase Order.
• Taxes. The fees payable hereunder are exclusive of any sales taxes (unless included on the invoice), or similar governmental sales tax type assessments, excluding any income or franchise taxes on Anviz (collectively, “Taxes“) with respect to the Products provided to Customer. Customer is solely responsible for paying all Taxes associated with or arising from this Agreement and shall indemnify, hold harmless and reimburse Anviz for all Taxes paid or payable by, demanded from, or assessed upon Anviz.

8. CONFIDENTIALITY

• Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (“Disclosing Party“) to the other party (“Receiving Party“) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information“). Anviz’s Confidential Information includes the Products and any information conveyed to Customer in connection with Support. Customer’s Confidential Information includes Customer Data. Confidential Information does not include information which is (i) already known by the receiving party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the Disclosing Party; or (iv) independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.
• Confidentiality Obligations. Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative“). Each party shall be responsible for any breach of confidentiality by any of its Representatives.
• Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.

9. DATA PROTECTION

• Security.  Anviz secures the Software and Customer Data in accordance with the security practices available at support.
• No Access.  Except for the Customer Data, Anviz does not (and will not) collect, process, store, or otherwise have access to any information or data, including personal information, about Users, Customer’s network, or users of Customer’s products or services.

10. OWNERSHIP

• Anviz Property. nviz owns and retains all right, title, and interest in and to the Software, and all intellectual property embodied in the Hardware. Except for the limited license granted to Customer in Section 2.1, Anviz does not by means of this Agreement or otherwise transfer any rights in the Products to Customer, and Customer will take no action inconsistent with Anviz’s intellectual property rights in the Products.
• Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means this Agreement or otherwise transfer any rights in the Customer Data to Anviz, except for the limited license set forth in Section 2.2.

11. INDEMNIFICATION

Customer will indemnify, defend, and hold harmless Anviz, its affiliates, and their respective owners, directors, members, officers, and employees (together, the “Anviz Indemnitees“) from and against any Claim related to (a) Customer’s or a User’s engaging in a Prohibited Use, (b) Customer’s breach of its obligations in Section 5.1, and (c) any and all acts or omissions of its Users. Customer will pay any settlement of and any damages finally awarded against any Anviz Indemnitee by a court of competent jurisdiction as a result of any such Claim so long as Anviz (i) gives Customer prompt written notice of the Claim, (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Anviz’s prior written consent which will not be unreasonably withheld), and (iii) provides to Customer all reasonable assistance, at Customer’s request and expense.

12. LIMITATIONS OF LIABILITY

• Disclaimer. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS AGREEMENT, Anviz MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, INCLUDING UPDATES OR SUPPORT. WITHOUT LIMITING THE FOREGOING, Anviz HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. Anviz DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS, THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
• Limitation of Liability. EACH PARTY HERETO AGREES THAT WITH THE EXCEPTION OF THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, AND ANY BREACH RELATED TO Anviz’S SECURITY OBLIGATIONS SET FORTH IN SECTION 9.1 (COLLECTIVELY, “EXCLUDED CLAIMS“), AND ABSENT GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE OTHER PARTY, NEITHER THE OTHER PARTY NOR ITS AFFILIATES NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES OF ANY OF THEM WILL BE LIABLE TO SUCH PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
• Liability Cap. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO Anviz UNDER THIS AGREEMENT DURING THE 24-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. IN THE CASE OF EXCLUDED CLAIMS, SUCH LIMIT WILL BE EQUAL TO THE TOTAL AMOUNT PAID BY CUSTOMER TO Anviz UNDER THIS AGREEMENT DURING THE TERM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.

13. Dispute Resolutions

This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties agree to the following:

• For the purpose of this provision “Dispute” means any dispute, claim, or controversy between Customer and Anviz regarding any aspect of Customer’s relationship with Anviz, whether based in contract, statute, regulation, ordinance, tort, including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence, or any other legal or equitable theory, and includes the validity, enforceability, or scope of this provision, with the exception of the enforceability of the Class Action Waiver clause below.
• “Dispute” is to be given the broadest possible meaning that will be enforced and shall include any claims against other parties relating to services or products provided or billed to Customer whenever Customer also asserts claims against us in the same proceeding.

Alternative Dispute Resolution

For all Disputes, Customer must first give Anviz an opportunity to resolve the Dispute by mailing written notification of Customer’s dispute to Anviz. That written notification must include (1) Customer’s name, (2) Customer’s address, (3) a written description of Customer’s claim, and (4) a description of the specific relief Customer seek. If Anviz does not resolve the Dispute within 60 days after it receives Customer’s written notification, Customer may pursue Customer’s Dispute in mediation arbitration. If those alternative dispute resolutions fail to resolve the Dispute, Customer may then pursue Customer’s Dispute in a court only under the circumstances described below.

Binding Mediation

For all Disputes, Customer agrees that Disputes may be submitted to a mediation with Anviz before JAMS with mutually agreed and selected single Mediator before Arbitration or any other legal or administrative proceedings.

Arbitration Procedures

Customer agrees that JAMS will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this provision.

For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures will apply. The JAMS rules are available at jamsadr.com. Under no circumstances will class action procedures or rules apply to the arbitration.

Because the Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

The arbitrator may award relief that would be available pursuant to applicable law and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties.

Customer or Anviz may initiate arbitration in County of San Francisco, California. In the event that Customer select the federal judicial district that includes Customer’s billing, home or business address, the Dispute may be transferred to the County of San Francisco California for Arbitration.

Class Action Waiver

Except as otherwise agreed in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claims such as a class action, consolidated action, or private attorney general action.

Neither Customer, nor any other user of the Site or Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding before any state or federal courts. Customer specifically agree that Customer waive Customer’s right for any and all Class Action proceedings against Anviz.

Jury Waiver

Customer understands and agrees that by entering into this Agreement Customer and Anviz are each waiving the right to a jury trial but agree to a trial before a judge as a bench trail.

14. MISCELLANEOUS

This Agreement is the entire agreement between Customer and Anviz and supersedes all prior agreements and understandings concerning the subject matter hereof and may not be amended or modified except by a writing signed by authorized personnel by both parties.

Customer and Anviz are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between Customer and Anviz. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement.

If any provision of this Agreement is found unenforceable, the Agreement will be construed as if such provision had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets.