terms and conditions
These Terms and Conditions were last updated on August 15th, 2019.
By signing the Order Form, having access to, receiving, and/or using any of the services provided by Turing Video, Inc. (“Turing Video”), you agree, on behalf of you and your organization (collectively, “Customer”), without limitation or qualification, to be bound by and to comply with these Terms and Conditions (the “Agreement”). Each Order Form will be deemed to incorporate this Agreement as it is published by Turing Video on the effective date of such Order Form.
1.1 “Affiliate” means any entity controlling, controlled by, or under common control with a party, where “control” means the power to direct or cause the direction of the management and policies of an entity or person, whether through the ownership of voting securities, by contract, or otherwise.
1.2 “Customer Data” means the information, data, and other content, including any images and recordings, in any form or medium, that is collected, received, or transmitted through or by the Solution, excluding Usage Data.
1.3 “Documentation” means the documentation that Turing Video makes generally available to its customers as part of the Solution and the specific documentation that Turing Video provides to Customer hereunder.
1.4 “Emergency Responders” means security guards or public safety authorities, such as police, fire, or EMS, contacted and/or dispatched as part of the Solution.
1.5 “Equipment” means the hardware products, including any embedded software, provided by Turing Video to Customer under this Agreement, as further described in each Order Form.
1.6 “Intellectual Property Rights” means all patent, copyright, trademark, trade secret, rights in know-how, business domain names, designs, and other proprietary and intellectual property rights recognized in any jurisdiction worldwide, including moral rights.
1.7 “Monitoring Services” means Turing Video’s remote monitoring services provided to Customer pursuant to an Order Form.
1.8 “Order Form” means the initial order for the Solution and other services provided by Turing Video, and any subsequent orders, entered into between the parties in writing (including via a web interface), specifying, among other things, the services, fees, and other relevant terms as agreed to between the parties, each of which are incorporated herein by reference and governed by the terms of this Agreement.
1.9 “Output” means any analytics, insights, or reports generated by Turing Video or the Platform resulting from Customer’s use of the Solution.
1.10 “Platform” means Turing Video’s software-as-a-service solution, including its mobile application, that is hosted by or on behalf of Turing Video and provided by Turing Video to Customer under this Agreement, and includes without limitation, all improvements, modifications, derivative works, updates, fixes, and releases that Turing Video generally makes available to its customers.
1.11 “Professional Services” means any services rendered by Turing Video to Customer pursuant to an Order Form, but specifically excluding any Support Services or Monitoring Services provided hereunder.
1.12 “Self-Monitoring” means Customer’s self-monitoring of its premises without the use of the Monitoring Services, as selected by Customer pursuant to an Order Form.
1.13 “Solution” means the Equipment and the Platform.
1.14 “Support Services” means Turing Video’s support and maintenance services provided by Turing Video in connection with Customer’s purchase and use of the Solution.
1.15 “Term” is defined in Section 10.1 below.
1.16 “Trial” is defined in Section 10.2. Use of the Solution during the Trial Period (as defined in the Order Form, if applicable) is subject to the terms of this Agreement, as modified by Section 10.2.
1.17 “Usage Data” means any anonymized and aggregated data that is derived from the processing of the Customer Data or the access or use of the Solution by or on behalf of Customer or Users, that in no way identifies or refers to Customer or Users, and any statistical or other analysis, information, or data based on or derived from the foregoing.
1.18 “User” means any individual who accesses or uses the Solution on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
2.1 License Grant. During the Term and subject to Customer’s compliance with the terms and conditions of this Agreement: (i) Customer may access and use the Platform pursuant to the terms of this Agreement and any outstanding Order Form; and (ii) Turing Video grants to Customer a limited, nonexclusive, nontransferable, nonsublicenseable license to access and use the Equipment and to use and copy the Documentation as reasonably required to use the Solution for its internal business purposes. Turing Video reserves the right in its sole discretion to determine whether any use of the Solution by Customer is acceptable and to revoke Customer’s access to any aspect of the Solution in the event Turing Video determines that such use is not consistent with Turing Video’s mission or otherwise not in the best interests of Turing Video or its customers.
2.2 Revisions. Turing Video may revise features and functionality of the Solution at any time without prior notice, including without limitation, by removing such features and functionality or reducing service levels. If any such revision to the Solution materially reduces features or functionality provided pursuant to an Order Form, Customer may within thirty (30) days of the revision terminate, in writing, such Order Form without cause.
2.3 Delivery and Installation. Turing Video will deliver or have delivered, at its cost, the Equipment to Customer at the location set forth in the Order Form, following execution of the applicable Order Form. Customer authorizes Turing Video to make any necessary preparations to Customer’s premises in Turing Video’s sole discretion for the installation of the Equipment, and Turing Video will not be responsible for any condition created thereby as a result of such installation or subsequent removal of the Equipment. Any estimated date of completion of such installation is not definitive and time is not of the essence. The Equipment will remain personal property and will not be considered a fixture, or an addition to, any part of the realty, and Customer will not permit the attachment thereto of any apparatus not furnished by Turing Video.
2.4 Professional Services. All Professional Services will be performed pursuant to an Order Form. Unless otherwise agreed upon in writing, Turing Video will perform the Professional Services at Turing Video’s then-current rates.
2.5 Support Services. Turing Video will use commercially reasonable efforts to provide Support Services for the Solution. Any Support Services, including necessary repairs to or replacement of the Solution, made by reason of changes to Customer's premises or any reason other than normal usage or wear and tear, will be made at Customer’s cost.
2.6 Monitoring Services. If Customer has elected to use the Monitoring Services, upon notification from the Equipment to Turing Video of any relevant suspected activity, Turing Video or its third-party monitoring service will use its commercially reasonable efforts and discretion in following Customer’s instructions, including use of a Call List (as applicable and if provided to Customer), in determining an appropriate response, which may include contacting relevant Emergency Responders. No more than one attempt to notify an individual on the Call List will be required and any form of notification, including by telephone, text, or email, and leaving a voice message, will suffice. Any changes to Customer’s instructions or Call List must be provided to Turing Video in writing and such new or revised instructions will be applied as soon as commercially practicable. Customer hereby consents to allow Turing Video’s third-party monitoring service, if applicable, to access, view, and store any video or audio transmitted via the Equipment as it deems necessary in order to provide the services herein. If Customer has elected Self-Monitoring in an Order Form, Customer is solely responsible for taking any action it deems necessary or appropriate upon receiving notification from the Equipment of an event, and Turing Video will have no obligation to monitor or respond to notifications from the Equipment or Customer related to such event.
2.7 Affiliates. Any Affiliate of either party may use this Agreement to incorporate its terms into an Order Form, provided that each Order Form remains a separate contract. In such case, all references to “Customer” hereunder will be deemed references to the applicable Customer Affiliate for purposes of such Order Form. Each party hereby consents to such Affiliate’s use of this Agreement without further acknowledgement or approval.
2.8 Subcontractors. The licenses granted by Customer to Turing Video in this Agreement extend to Turing Video’s service providers and subcontractors, provided that Turing Video remains liable for such third party’s breach of this Agreement.
3. Customer's Responsibilities.
3.1 Customer Account. Customer is responsible for all activities that occur under Customer’s account, including its personnel and Users’ use of the Solution. Customer will take reasonable steps to prevent unauthorized access to the Solution, including without limitation by protecting its passwords and other log-in information. Customer will notify Turing Video immediately of any known or suspected unauthorized use of the Solution or breach of its security and will use best efforts to stop said breach.
3.2 Customer’s Obligations. Customer will provide Turing Video with the following to enable Turing Video to perform its obligations and exercise its rights under this Agreement: (i) access to Customer’s facilities, computer equipment (including remote access, if applicable), systems, and any other services, personnel, information, tools, or materials (including associated licenses); (ii) access to the Equipment to perform tests on, modify, and service the Equipment; and (iii) all cooperation and assistance as reasonably requested. Customer is responsible for and will bear all costs relating to acquiring necessary Internet connections, equipment, software (including a compatible web browser), and services for Customer to effectively access and use the Solution, and will maintain the Equipment in good repair. Customer is solely responsible, and Turing Video will have no liability, for: (a) knowing and complying with any laws, rules, or regulations applicable to Customer’s use of the Solution; (b) obtaining and maintaining all required permits in relation to Customer’s use of the Solution (and will pay, or reimburse Turing Video for, any false alarm or other fines); (c) the security or privacy of any wireless network system or router; and (d) determining and relaying to Turing Video the placement, and if applicable, route of the Equipment. Customer will comply with all instructions from Turing Video regarding the use, maintenance, and storage of the Equipment. If due to Customer’s acts or omissions, the Equipment, while in the care, custody, or control of Customer: (x) becomes inoperative or malfunctions in any way, Customer will pay Turing Video all costs necessary to restore the Equipment to its original working condition; or (y) is lost or damaged beyond repair, Customer will pay Turing Video all costs necessary to replace the Equipment.
3.3 Customer Data. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer hereby grants to Turing Video a nonexclusive, worldwide, fully paid, royalty-free, right and license to download, receive, collect, access, modify, copy, store, retain, and otherwise use the Customer Data in order to provide and support the Solution in accordance with this Agreement, and to develop, improve, and provide products and services that are ancillary to the Solution.
3.4 Aggregate Data. Customer hereby grants to Turing Video a nonexclusive, worldwide, perpetual, irrevocable, fully paid, royalty-free right and license to collect, retain, store, use, modify, distribute, and disclose the Customer Data in aggregated and anonymized form and any inferred insight relating to the Customer Data for any purpose whatsoever, provided that any such disclosure does not identify Customer by name or description sufficient to identify Customer as the source or subject of such information, in whole or in part.
3.5 Restrictions. Except as expressly provided for in this Agreement, Customer may use the Solution only for its internal business purposes and will not allow any third parties to: (i) copy, modify, or create derivative works or improvements of the Solution; (ii) reverse engineer, disassemble, decompile, modify, or alter the Solution; (iii) remove, circumvent, disable, damage, or otherwise interfere with or disrupt the integrity or performance of the Solution or any security-related features therein; (iv) input, upload, transmit, or otherwise provide to or through the Solution, any information or materials that are unlawful or injurious, or contain, transmit, send, or store material containing harmful computer code, files, scripts, agents, or programs; (v) rent, lease, loan, resell, sublicense, distribute, or otherwise commercially exploit or make available the Solution to any third party or use the Solution for service bureau or time-sharing purposes; (vi) encumber the Solution with any lien or grant a security interest in the Solution; (vii) tamper with, remove, or otherwise interfere with the Solution, including attempting to fix or repair the Equipment; or (viii) develop or have developed any products, services, or other materials that compete with the Solution or otherwise compete with Turing Video or its business. In the event that Turing Video suspects any breach of the requirements of this Section 3.5, Turing Video may suspend Customer’s access to the Solution without advanced notice, in addition to such other remedies as it may have.
3.6 Marketing and Publicity. Turing Video will have the right to list Customer as a customer and use its logo and branding materials in written, oral, and electronic materials (including on Turing Video’s website), provided that Turing Video complies with Customer's branding guidelines and instructions, if provided by Customer. The parties agree to participate in marketing and promotion of the Solution and Turing Video’s other services provided to Customer. Except as expressly stated herein, all other use by a party of the other party’s name, logo, or trademarks will be upon such party’s prior written consent.
3.7 Insurance. Customer will maintain insurance covering: (i) the Equipment, public liability, property damage, burglary, and theft under which Turing Video is named as additional insured; and (ii) any loss which the Solution is intended to detect to one hundred percent (100%) of the insurable value. Customer hereby waives all rights against Turing Video and its subcontractors for loss or damage caused by burglary, theft, water, smoke, fire, or other perils intended to be detected by the Solution or covered by Customer’s insurance, except such rights as they may have to the proceeds of insurance, and Turing Video will not be responsible for any portion of any loss or damage, whether it be to Customer or any third party, which is recovered or recoverable by Customer from Customer’s insurance. Upon Turing Video’s request and within five (5) business days, Customer will provide Turing Video with an original policy or certificate evidencing the foregoing insurance. Customer will provide at least thirty (30) days’ advance written notice of any cancellation, change, or modification of its insurance coverage and Turing Video may thereby terminate the applicable Order Form if such insurance changes are not adequate, in Turin Video’s reasonable discretion.
4. Fees and Payment.
4.1 Fees and Invoicing. Customer will pay the fees specified in the applicable Order Form (the “Fees”). All Fees are quoted in United States Dollars. Fees are non-refundable except as otherwise specifically set forth in in this Agreement. Turing Video will invoice Customer for any recurring subscription Fees monthly in advance, and the initial subscription Fees are payable upon execution of the applicable Order Form. Any other Fees set forth in the relevant Order Form will be payable thirty (30) days from the invoice date. Additional fees may apply for online payments, which are payable by Customer. If Customer’s account is fifteen (15) days or more overdue, in addition to any of its other rights or remedies, Turing Video reserves the right to suspend Customer’s access to and use of the Solution, without prior notice or liability to Customer, until such amounts are paid in full. Any payment not received from Customer by the due date may accrue, at Turing Video’s discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Turing Video reserves the right to reclaim or request delivery of any Equipment, with any related shipping costs paid by Customer.
4.2 Taxes. Turing Video’s fees are exclusive of all local, state, federal, and foreign taxes, levies, or duties of any nature (“Taxes”), and Customer is responsible for payment of all Taxes, excluding only United States taxes based on Turing Video’s income. If Turing Video has the legal obligation to pay or collect Taxes for which Customer is responsible pursuant to this Section 4.2, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Turing Video with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will indemnify, defend, and hold Turing Video, its officers, directors, consultants, employees, successors, and assigns harmless from all claims and liability arising from Customer’s failure to report or pay any such Taxes.
4.3 Expenses. If Customer requests Turing Video to provide Support Services or Professional Services at Customer’s location or any other location other than Turing Video’s offices, unless otherwise set forth in an Order Form, Customer will reimburse Turing Video for all reasonable travel and out-of-pocket expenses incurred by Turing Video. Turing Video will submit accurate and complete records to substantiate the accommodation expenses.
4.4 Liquidated Damages. The parties agree that due to the nature of the services provided by Turing Video, payments to be made by Customer hereunder form an integral part of Turing Video's anticipated profits and that in the event of Customer's default in payment it would be difficult to precisely estimate Turing Video’s actual damages. Therefore, in the event Customer defaults in its payments hereunder, the balance of all payments for the Term will immediately become due and payable, and Customer will be liable for eighty percent (80%) thereof as liquidated damages, and not as a penalty, and Turing Video may terminate all the services provided to Customer under this Agreement, in addition to such other remedies as it may have. The parties agree that the amounts specified herein bear a reasonable relationship to the probable loss likely to be incurred by Turing Video in connection with Customer’s default.
5. Proprietary Rights.
5.1 Customer IP. As between Customer and Turing Video, Customer owns all right, title, and interest in and to: (i) the Customer name and associated trademarks (the “Customer Marks”); (ii) the Customer Data; (iii) Customer’s Confidential Information; (iv) the Output (excluding the Turing Video IP); and (v) all Intellectual Property Rights in the foregoing (collectively, the “Customer IP”). Except as expressly set forth in this Agreement, no license or other rights to any of the Customer IP are granted to Turing Video, and all such rights are hereby expressly reserved.
5.2 Turing Video IP. Turing Video owns all right, title, and interest in and to: (i) the Turing Video name and logo, and all product names and trademarks associated with the Solution; (ii) the Solution and the Documentation and any and all enhancements, improvements, developments, derivative works, or other modifications made to or related to the Solution or the Documentation, including any customizations made under this Agreement; (iii) the Usage Data; (iv) Turing Video’s Confidential Information; and (v) all Intellectual Property Rights in the foregoing (collectively, the “Turing Video IP”). Except as expressly set forth in this Agreement, no license or other rights to any of the Turing Video IP are granted to Customer, and all such rights are hereby expressly reserved.
5.3 Feedback. By submitting any Feedback, Customer hereby assigns to Turing Video all right, title, and interest in and to the Feedback. For purposes of this Agreement, “Feedback” means any comments, feedback, potential errors and improvements, reports, and ideas about the Solution that Customer may provide to Turing Video concerning the functionality and performance of the Solution. All results and findings relating to the performance of the Solution will be deemed Confidential Information of Turing Video, and upon Turing Video’s request, Customer will provide the findings resulting from any evaluation or use of the Solution to Turing Video, including during the Trial, if applicable.
6.1 Confidential Information. As used herein, “Confidential Information” means all non-public information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as “Confidential,” “Proprietary,” or the like and/or information that the Receiving Party should reasonably understand as being confidential or proprietary to the Disclosing Party given the nature of the information and the circumstances of the disclosure, including without limitation, this Agreement and the terms set forth in the Order Form (which will be deemed Confidential Information of both parties), business and marketing plans, financial information, technology and technical information, designs, and business processes. Confidential Information will not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was in the rightful possession or known by the Receiving Party prior to receipt from the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party, as evidenced by written records.
6.2 Protection. Each party will not disclose the other party’s Confidential Information, or use the other party’s Confidential information, for any purpose other than to perform its obligations or exercise its rights under this Agreement, and will protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party may disclose Confidential Information to its employees, agents, contractors, Affiliates, and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 6 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 6.
6.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party's cost) if the Disclosing Party wishes to contest the disclosure.
6.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7. Representations and Warranties.
7.1 Mutual Warranties. Each party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; (ii) it has full right, power, and authority to enter into and perform its obligations under this Agreement (including Customer’s right to grant the licenses under Section 3 above); and (iii) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
7.2 By Customer. Customer represents and warrants that: (i) it has all necessary rights, consents, and permissions to collect, disclose, transfer, use, and otherwise exploit the Customer Data as contemplated in this Agreement; and (ii) its use of the Solution, including Customer Data uploaded to or provided in connection with the Solution, will not violate any applicable law, rule, or regulation, infringe any third party’s intellectual property, privacy, or publicity right, or cause a breach of any agreement with any third party (including any governmental agencies). In the event of a breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Turing Video will have the right to immediately suspend Customer’s access to and use of the Solution to prevent harm to Customer or its business. If practicable, Customer will provide notice and opportunity to cure. Once cured, in Turing Video’s discretion, Turing Video will use reasonable efforts to promptly restore Customer’s access to the Solution.
7.3 By Turing Video. Turing Video represents and warrants that: (i) the Platform will be provided in all material respects in accordance with the Documentation; and (ii) it will perform the Professional Services in a professional and workmanlike manner in accordance with generally accepted industry standards for similar services. Customer’s remedy and Turing Video’s obligation for any such failure will be for Turing Video to use its commercially reasonable efforts to correct such non-compliance. Turing Video warrants to Customer that the Equipment will be free from material defects in materials and workmanship for the Term (the “Limited Warranty”), solely if the Equipment is used in accordance with this Agreement and with any operating specifications as published or provided by Turing Video. As Customer’s sole and exclusive remedy and Turing Video’s sole and exclusive liability for any breach of this Limited Warranty, Turing Video will, at its expense and discretion, either repair or replace such Equipment with equipment substantially similar to the replaced Equipment. This Limited Warranty does not cover Equipment that has been subject to the following: (a) modifications, alterations, tampering, or improper maintenance or repairs done by or on behalf of Customer; (b) handling, storage, or use by or on behalf of Customer not in accordance with the instructions provided by Turing Video; (c) breakdowns, fluctuations, or interruptions in electric power or the telecommunications network; or (e) a Force Majeure event.
7.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SOLUTION, THE OUTPUT, AND ALL RELATED DELIVERABLES AND SERVICES ARE PROVIDED “AS IS.” TURING VIDEO MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. TO THE FULLEST EXTENT OF THE LAW, TURING VIDEO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. TURING VIDEO DOES NOT WARRANT THAT THE SOLUTION IS ERROR-FREE, WILL BE SECURE OR UNINTERRUPTED, OR WILL PROVIDE THE TYPE OF PROTECTION FOR WHICH IT WAS USED BY CUSTOMER. TURING VIDEO EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON ANY RESULTS OF CUSTOMER’S USE OF THE SOLUTION. TURING VIDEO WILL NOT BE LIABLE FOR ANY PERSONAL INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE CAUSED BY EMERGENCY RESPONDERS, OR THE REFUSAL OF EMERGENCY RESPONDERS TO RESPOND.
8.1 Indemnification by Turing Video. Subject to the other provisions of this Section 8, Turing Video will defend, indemnify, and hold Customer and its officers, directors, consultants, employees, successors, and assigns (“Customer Indemnitees”) harmless against any and all losses, damages, liabilities, and costs, including reasonable attorneys’ fees (“Damages”) incurred by Customer Indemnitees that arise out of or relate to any third-party claim, suit, action, or proceeding (“Claims”) alleging that Customer’s use of the Solution in compliance with this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Claim arising out of or related to: (i) modifications to the Solution not authorized or made by Turing Video; (ii) materials supplied by Customer, including without limitation, the Customer Data; (iii) combination of the Solution with products or services not provided by Turing Video; (iv) designs or instructions provided by Customer to Turing Video; (v) Customer’s continued use of the allegedly infringing material after being notified thereof or after being informed of modifications that would have avoided such alleged infringement; or (vi) Customer’s use of the Solution not strictly in accordance with this Agreement.
8.2 Infringement Remedies. If Turing Video or a court or other body of competent jurisdiction determines that the Solution is or may be infringing, Turing Video may, at its option and expense: (i) replace or modify the Solution to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Customer a license to continue using the Solution; or (iii) if neither of the foregoing is commercially practicable, terminate the applicable Order Form and Customer’s rights hereunder and provide Customer a refund or credit for any prepaid, unused fees. THE REMEDIES SET FORTH IN THIS SECTION 8 STATE THE SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY OF TURING VIDEO TO CUSTOMER INDEMNITEES IN RELATION TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
8.3 Indemnification by Customer. Subject to the other provisions of this Section 8, Customer will defend, indemnify, and hold Turing Video and its officers, directors, consultants, employees, successors, and assigns (“Turing Video Indemnitees”) harmless against any and all Damages incurred by Turing Video Indemnitees that arise out of or relate to a Claim that: (i) alleges Customer’s breach of any of its representations, warranties, or obligations set forth in Sections 3, 6, or 7 of this Agreement; (ii) relates to the Customer Data as used by Turing Video in accordance with this Agreement; or (iii) relates to Customer’s use of the Solution not in accordance with this Agreement.
8.4 Procedure. Each indemnifying party’s obligations as set forth in this Section 8 are contingent on: (i) the indemnitee providing the indemnifying party with prompt written notice of the Claim (and any information that may reasonably give rise to a Claim), but only if the indemnifying party is materially adversely prejudiced by failure to receive such notice; (ii) the indemnifying party having the right to defend the Claim at its own expense and with counsel of its choosing; (iii) the indemnifying party having the right, in its sole discretion, to settle the Claim so long as such settlement does not impose any monetary or material non-monetary obligations on the indemnitee (other than indemnitee no longer using the Solution, as the case may be), and provided that the indemnitee will be included in any release language as part of any such settlement; and (iv) the indemnitee providing (at the indemnifying party’s expense) such assistance and information as the indemnifying party may reasonably require to investigate, defend, or settle the Claim.
9. Limitations of Liability.
9.1 Consequential Damages Exclusion. EXCEPT FOR: (i) A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 6; (ii) EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS; (iii) CUSTOMER’S BREACH OF SECTION 3.5; OR (iv) A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT (COLLECTIVELY, THE “EXCLUSIONS”), NEITHER PARTY MAY BE HELD LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOOD WILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF CONTENT OR DATA, COST OF COVER, OR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT.
9.2 Limitation of Liability. EXCEPT FOR: (i) THE EXCLUSIONS; OR (ii) ANY AND ALL FEES OR PAYMENTS OWED BY CUSTOMER TO TURING VIDEO, NEITHER PARTY’S MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WILL EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO TURING VIDEO IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM (THE “GENERAL LIABILITY”). TURING VIDEO’S TOTAL LIABILITY WITH RESPECT TO ALL INDEMNIFICATION CLAIMS UNDER SECTION 8.1 WILL NOT EXCEED THE GREATER OF (A) TWO MILLION DOLLARS ($2,000,000), OR (B) TWO (2) TIMES THE TOTAL FEES PAID BY CUSTOMER IN THE PRIOR TWELVE (12) MONTH PERIOD.
10. Term and Termination.
10.1 Term. This Agreement begins on the Effective Date and, unless earlier terminated pursuant to this Agreement, will continue in effect for so long as there is an active Order Form (the “Term”). The Initial Term of an Order Form is set forth therein and each Order Form will automatically renew for additional, successive twelve (12) month periods (each, an “Order Form Renewal Term,” and the Order Form Initial Term and all Order Form Renewal Terms, collectively the “Order Form Term”), unless one party notifies the other in writing of its intention not to renew at least sixty (60) days’ prior to the end of the then-current Order Form Term. Turing Video reserves the right to modify the Fees at any time upon sixty (60) days’ prior written notice to Customer, provided that the modified Fees will not apply until the next Order Form Renewal Term.
10.2 Trial. If applicable, during the Trial Period set forth in the Order Form, Customer may, for no Fees, evaluate the performance and functionality of the Solution (the “Trial”). At the end of the Trial Period, the Term set forth in the Order Form will automatically commence, at which time Turing Video will invoice Customer for any applicable Fees associated with the Term in accordance with this Agreement. Notwithstanding the foregoing, if the Solution does not meet Customer’s requirements or does not function as intended by Turing Video, either party may terminate the applicable Order Form at the end of the Trial Period. TURING VIDEO’S REPRESENTATIONS AND WARRANTIES UNDER SECTIONS 7 AND ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 WILL NOT APPLY TO CUSTOMER’S USE OF THE SOLUTION DURING THE TRIAL PERIOD. FOR THE TRIAL, CUSTOMER’S GENERAL LIABILITY CAP UNDER SECTION 9.2 WILL BE TEN THOUSAND DOLLARS ($10,000) AND TURING VIDEO WILL HAVE NO GENERAL LIABILITY.
10.3 Termination for Cause. Either party may terminate any Order Form with immediate effect, in whole or in part, by giving the other party prior written notice, if the other party: (i) commits a material breach of any of its obligations under this Agreement or an Order Form, which breach is not cured within thirty (30) days following receipt of written notice, or the parties agree cannot be cured within thirty (30) days; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (vi) has wound up or liquidated its business, voluntarily or otherwise.
10.4 Effects of Termination. Upon expiration or termination of this Agreement: (i) Customer will cease all use of the Solution and delete, destroy, or return all copies of the Documentation in its possession or control; (ii) Customer will make the Equipment readily available for Turing Video to reclaim; (iii) Customer will be responsible for payment of any monies (including any Fees and expenses) due to Turing Video for any period prior to the effective date of such termination; and (vi) each party will return or destroy (and provide certification of such deletion upon request) any of the other party’s Confidential Information then in its possession, provided that Turing Video may retain one copy of the Customer Data and Customer’s Confidential Information solely for the purpose of compliance with any legal requirement in relation to the retention of records or in the event of litigation; however, Turing Video has no obligation to retain the Customer Data after termination of this Agreement.
10.5 Survival. Sections 1, 3.4, 3.5, 4, 5, 6, 7.4, 8, 9, 10.4, 10.5 and 11 (together with all other provisions, including without limitation, all Order Forms and attachments hereto, that may be reasonably interpreted as surviving termination or expiration of this Agreement) will survive the termination or expiration of this Agreement.
11.1 No Waiver. This Agreement may not be altered, amended, or modified in any way except by a writing signed by both parties. The failure of a party to enforce any provision of this Agreement will not be construed to be a waiver of the right of such party to thereafter enforce that provision or any other provision or right.
11.2 Severability. In the event that any provision of this Agreement is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the rest of the Agreement will remain in full force and effect.
11.3 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Mateo County, California in connection with any action arising out of or in connection with this Agreement.
11.4 Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. In the event of a conflict between the terms of this Agreement and the terms of any Order Form or other attachment hereto, such conflict will be resolved in the following order: (a) any Order Form; (b) this Agreement, exclusive of any exhibits; (c) any exhibits; and (d) any other attachments. With the exception of an Order Form, any purchase order, written terms or conditions, or other document that Customer sends to Turing Video (whether prior to or after execution of this Agreement) that contains terms that are different from, in conflict with, or in addition to the terms of this Agreement are hereby rejected and will be void and of no effect.
11.5 Relationship. Turing Video and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Turing Video and Customer. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever. This Agreement does not confer any benefits on any third party unless expressly stated therein.
11.6 Force Majeure. Except for Customer’s payment obligations, neither party will be liable for failure to perform or delay in performing any obligation under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction, power outage, telephone outage, internet access Turing Video failure, or any other similar cause beyond its control.
11.7 Assignment. Neither party may assign or delegate its rights, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement, provided that in the event Customer assigns an Order Form or this Agreement to a competitor of Turing Video (as reasonably determined by Turing Video), Turing Video may immediately terminate such Order Form or this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Customer will notify Turing Video of any change referenced in this paragraph within thirty (30) days of the effective date of the change.
11.8 Notices. Any notice required or permitted by this Agreement will be in writing and will be sent by facsimile, email, courier, or personal delivery, addressed to the other party at the above address or at such other address for which such party gives notice hereunder. Notice is effective upon receipt.
11.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument.