774-495-0170 sales@physaas.com

Terms and Conditions for PhySaaS

Conditions PhySaaS, Inc. Terms of Service

1) Application of Terms of Service: These Terms of Service are incorporated by reference in the Agreements between PhySaaS, Inc. (“PHYSAAS”) and Customer (“Customer”) whenever an Agreement incorporating the Terms of Service is effective. In addition, they are incorporated by reference in Addenda between PHYSAAS and Customer. Whenever PHYSAAS makes a change in these Terms of Service, the date the change is posted on this website will be noted, and the change will become effective 30 days from such date.

2) Services: PHYSAAS agrees to provide Customer the services described in each Service Order Addendum (“SOA”) and/or Statement of Work (“SOW”), collectively the (“Agreement”). Any changes to the Agreement must be made in writing and signed by both parties. Services provided under any SOA or SOW shall be governed by the terms and conditions set forth in the Agreement. Terms and Conditions may be modified from time to time. PHYSAAS reserves the right, in its sole reasonable discretion, to reject any SOA or SOW prior to PHYSAAS’s signature. The Agreement is fully binding and enforceable as of the date the SOA or SOW is/are signed by both parties.

3) Term Commitment: Customer shall utilize PHYSAAS service(s) as specified in each SOA or SOW for the duration of the term(s) specified in the associated SOA for such services. The term of any SOA will commence on the service start date. The service start date shall mean the date when PHYSAAS tests and initiates the service associated with a SOA and notifies the Customer that service has been initiated. On the service start date, PHYSAAS will begin billing Customer for such services. The initial term of services provided pursuant to each SOA will automatically renew for successive one (1) year periods unless Customer notifies PHYSAAS in writing of Customer’s desire not to renew at least ninety (90) days prior to the expiration of the then current term. During the term of service any change orders or additional services added will have a Minimum Period of 12 Months for Hardware and all licenses will be prorated and co-terminus.

4) Termination without Cause: Following expiration of any applicable Term or Minimum Period, either party to an Agreement may terminate any service with sixty (60) days prior written notice. In the event Customer terminates or discontinues any service provided under a term plan with PHYSAAS prior to the expiration of the then-current term or Minimum Period, Customer shall pay PHYSAAS within 90 days of termination or discontinuance: (1) the monthly recurring charges multiplied by the number of months remaining in the service term or Minimum Period and (2) any previously waived installation and special promotional credits given, in one lump sum (collectively, the “Early Termination Fee”). Customer acknowledges that PHYSAAS’s damages for early termination would be difficult to determine and the termination charge(s) constitutes liquidated damages and are not intended as a penalty but as a mutually agreed upon amount representing, but not limited to, lost revenue, proportionate or actual third-party costs and capital expenditures, and internal costs. All such amounts will become due and payable by Customer to PHYSAAS within 15 days of receipt of PHYSAAS’s invoice for the Early Termination Fee.

5) Termination for Cause: Customer shall be in default of an Agreement if (a) Customer fails to pay any undisputed amount due hereunder within thirty (30) days of the payment due date; (b) Customer provides inaccurate, false or otherwise misleading information in its application for service; (c) Customer utilizes PHYSAAS’s services for any unlawful purpose or for any other purpose than that for which the service is intended.

6) Term Expiration: Upon expiration of the Term or Minimum Period and final payment has been received for service, Customer will assume ownership of all Hardware associated with Agreement. Customer must notify PHYSAAS within 90 days of expiration to renew licenses and support or to cancel service. Failure to provide 90 days’ notice could result in expired licenses and loss of service.

7) Order Cancellation: Customer shall pay an order cancellation fee (a minimum of $250.00 or equivalent to the actual cost of equipment and installation, whichever is greater) should the Customer initiate the cancellation of Customer’s service order associated with a particular SOA & SOW prior to test and turn up of the service, to compensate PHYSAAS for the time, money and resources spent to prepare and procure Customer’s service order request associated with a particular SOA.

8) Payments: Customer shall pay all service charges and fees as set forth in each SOA, including, but not limited to, nonrecurring incidental charges (such as charges associated with installation, line maintenance, expedites, moves, adds, changes, deletions, and cancellations), equipment purchases, surcharges, regulatory fees, taxes, and other charges required by law. Charges for maintenance and repair shall be billed to the Customer pursuant to the PHYSAAS Maintenance and Repair Fee outlined, Section 28 below. Customer shall pay all service charges promptly upon the completion of installation for each specified service associated with each SOA. For self/customer installation billing term starts on product shipment date. For the avoidance of any doubt, for installations associated with a service provided under a SOA and SOW that includes multiple locations or an installation process that is phased in over a period of time, Customer shall pay service charges promptly upon the completion of each installation for each specified service associated with each SOA at each particular location or the conclusion of each phase of the installation process, whichever is earlier. Additional fees for changes may apply to changes in the service order associated with a particular SOA that is requested by the Customer after the Agreement is signed. Upon the Customer’s receipt of a PHYSAAS invoice, all payments associated with the PHYSAAS invoice shall be due and the Customer shall pay such amounts. Customer shall be liable for all charges associated with the use of PHYSAAS’s services, including charges that result from theft, abuse, or misuse, as well as fraudulent, and/or unauthorized use of such service. All Customer payments to PHYSAAS shall be in U.S. currency.

9) Billing Disputes:

a) Customer shall undertake a reasonably good faith effort to review each invoice received from PHYSAAS under the Agreement on or before the payment due date to determine whether there are any amounts it disputes (“Disputed Amounts”). Customer shall pay on or before the payment due date all undisputed amounts. If any portion of an amount invoiced to Customer under the Agreement is subject to a good faith dispute between the Parties, Customer shall give written notice, with all supporting documentation, to PHYSAAS of the Disputed Amounts through the PHYSAAS claims submission process and include in such notice the specific details and reasons for disputing each item. Customers can email PHYSAAS at billing@PhySaaS.com with dispute information and a billing dispute ticket number will be sent back within two (2) business days. Once the billing ticket has been issued, PHYSAAS will respond to the dispute within five (5) business days. PHYSAAS shall undertake a reasonably good faith effort to review Customer’s disputes within thirty (30) days of the date we issue a billing dispute ticket number. Billing disputes shall also be subject to the terms of Section 10, below:

b) Should PHYSAAS deny a dispute, Customer shall have ten (10) business days by which either to pay the Disputed Amounts or to escalate the dispute to the level of the PHYSAAS Chief Revenue Officer. Customer’s failure to utilize the escalation process in this Section 9.b. shall operate as a waiver of Customer’s right to pursue any further relief with respect to the Billing Dispute. PHYSAAS shall undertake a reasonable good faith effort to review Customer’s disputes within thirty (30) days of the date of the submission.

c) If Customer fails to provide PHYSAAS with written notice of its dispute of a rate or charge within 90 days following the invoice date on which the rate or charge appeared, adjustment will be made on a going-forward basis only, beginning with the date the dispute was received by PHYSAAS.

10) Dispute Resolution by Arbitration:

a) Disputes that arise on or after the Effective Date of the Agreement and that arise out of or relate to services provided under the Agreement that are not resolved through the escalation provisions of Section 9.b, above, shall be submitted to binding arbitration in accordance with the provisions hereof, which is Customer’s exclusive remedy for the resolution of such disputes. Either Party may demand arbitration by sending a detailed written notice of its claims to the other Party. If Customer does not send written notice of its arbitration demand to PHYSAAS within 30 days of an adverse determination of its Dispute pursuant to Section 9.b. Customer will be deemed to have waived all rights to challenge the adverse determination.

b) Once a demand for arbitration has been made in accordance with Section 10.a., the Parties shall promptly submit the dispute to the American Arbitration Association for resolution by a single neutral arbitrator acceptable to both parties, as selected under the rules of the American Arbitration Association. The dispute shall then be administered according to the American Arbitration Association’s Commercial Arbitration Rules, with the following modifications: (i) the arbitration shall be held in The State of Florida; (ii) the arbitrator shall be licensed to practice law; (iii) the arbitrator shall conduct the arbitration as if it were a bench trial and shall use, apply and enforce the Federal Rules of Evidence, the Federal Rules of Civil Procedure, and the laws of Florida, without regard to its conflicts of laws rules, including the laws and decisions pertaining to enforcement and interpretation of contracts; (iv) the arbitrator shall have no power or authority to make any award that provides for special, indirect, incidental, consequential, reliance, exemplary, punitive or like damages, including damages for lost revenues, profits or savings or other commercial or economic loss, even if the party whose liability is excluded by this Section has been advised of the possibility of such damages; (v) the arbitrator shall control the scheduling so that the hearing is completed no later than thirty (30) days after the date of the demand for arbitration; and (vi) the arbitrator’s decision shall be given within five (5) days thereafter in summary form that states the award, without written decision, which shall follow the plain meaning of this Agreement, the relevant documents, and the intent of the parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction over the parties. Each party to the dispute shall bear its own expenses arising out of the arbitration, except that the expenses of the facilities to conduct the arbitration and the fees of the arbitrator shall be shared equally by the Parties.

11) Suspension of Service: Should Customer fail to keep its account current, PHYSAAS has the right to suspend Customer’s service upon (10) days written notice (except as specified by FCC or state regulations, where applicable) and continue billing until sufficient payment has been received to bring Customer’s account current. If the service is suspended due to Customer’s non-payment, PHYSAAS will not restore service until all charges are paid in full. A minimum $100.00 restoration fee will be charged by PHYSAAS. Should Customer fail to pay PHYSAAS all outstanding amounts due within 10 days following suspension, PHYSAAS may disconnect service, reclaim all PHYSAAS hardware, and charge all applicable Early Termination Fees specified in this Agreement.

12) Credit Inquiries/Deposits: Customer authorizes PHYSAAS to inquire into Customer’s credit history, including asking consumer reporting agencies and/or other references for Customer credit information. Notwithstanding any applicable laws or regulations to the contrary, PHYSAAS reserves the right, at its sole discretion and at any time, to (a) refuse to provide the service requested or provisioned under any SOA or (b) require 50% payment of all Installation and one-time charges prior to the scheduling of service installation based on Customer’s credit worthiness.

13) Access to Customer Premises and Equipment: Customer shall provide PHYSAAS with reasonable access to Customer’s premises, internal wiring, and other facilities and equipment to allow PHYSAAS to install, maintain and repair Customer’s service, as reasonable and necessary. With respect to any installation, PHYSAAS reserves the right to bill Customer a $250.00 fee for each missed scheduled appointment date. Should PHYSAAS repeatedly be unable to access the Customer’s premises for required installation and service, PHYSAAS reserves the right to cancel the service request. PHYSAAS is not responsible for any delays that impede the Customer’s ability to use the installed service, including but not limited to delays requested by Customer or caused by a third party or delays incurred because of problems connecting the installed service to Customer’s LAN or other CPE by Customer or a third party.

Assumption of existing services:

14) Use of Service: Customer shall not use the service in any manner other than that for which the service was intended and shall refrain from using the services in any manner that would adversely affect the equipment of PHYSAAS, or the service that PHYSAAS provides. PHYSAAS reserves the right to discontinue service without notice in the event of any such unlawful or adverse use. Customer understands and agrees that it is liable for all use of this service and/or device by the Customer or any person making use of the service or device. Customer may not use this service or device for any unlawful, abusive, or fraudulent purpose.

15) Interruption of Service Caused By Force Majeure: PHYSAAS shall not be liable for any delay or failure of performance of any part of this Agreement and services provided under the SOA to the extent that such failure or delay is caused by Acts of God, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, cable cuts, volcanic action, other major environmental disturbances, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of common carriers or other causes beyond PHYSAAS’s reasonable control, including, but not limited to, any full or partial failure of any third party communications or computer network or any other cause beyond such party’s reasonable control. Under such circumstances, PHYSAAS shall not be responsible for providing services. Such services shall be resumed by PHYSAAS when service can reasonably be restored.

16) Disclaimers: Customer shall defend, indemnify, and hold harmless PHYSAAS against any and all claims, damages, costs, attorney’s fees, and liabilities arising out of the use of this service, the inability to use this service for any reason. The service is provided on an “as is” or “as available” basis. PHYSAAS does not provide any warranty, either express or implied, regarding or concerning the service or device, including any warranty of merchantability, fitness for a particular purpose, or that the Service will function without failure, delay, interruption, error, degradation of voice content, or loss of content, data, or information.

17) Limitation of Liability: PHYSAAS will not be liable under any contract, tort, negligence, strict liability or other theory for any incidental, consequential, indirect, exemplary, punitive or special damages or any nature, or for any lost revenues, lost profits or loss of business or potential business or data or services, loss of goodwill, or work stoppage, in each case whether or not such losses were foreseeable by such party. PHYSAAS’s liability for any damages arising from errors, mistakes, omissions, interruptions or delays caused by it, its agents, employees or underlying carriers in the course of establishing, furnishing, rearranging, moving, terminating, maintaining, restoring or changing service or facilities provided hereunder, or PHYSAAS’s failure to perform any other duty arising out of the Agreement shall not exceed an amount equivalent to the actual proportionate charge for the service applicable to the period during which the service was affected. PHYSAAS shall not be liable for any consequential, indirect, punitive, or special damages with respect to any claims regarding the services to be provided hereunder. Customer acknowledges that PHYSAAS has entered into this agreement and has set its prices in part in reliance on these liability and remedy limits, and that they form an essential basis of the bargain between the parties.

18) Warranties: PHYSAAS makes no warranty, express or implied, as to the description, completeness, quality, merchantability, or fitness for a particular purpose of any service provided pursuant to this agreement or any SOA issued hereunder, or that any such service shall be uninterrupted or error-free, unless expressly provided in an Agreement executed by both PHYSAAS and the Customer. PHYSAAS DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE, UNINTERRUPTED OR SECURE FROM THIRD-PARTY ATTACKS. THE PRECEDING DISCLAIMERS INCLUDE AN EXPRESS ACKNOWLEDGEMENT BY CUSTOMER THAT, AMONG OTHER THINGS, PHYSAAS DOES NOT MAKE ANY PROMISE TO CUSTOMER THAT: (1) THE SERVICES OR PRODUCTS ARE FIT TO BE SOLD; (2) THE SERVICES OR PRODUCTS ARE FREE FROM DEFECTS; (3) THE SERVICES OR PRODUCTS WILL PERFORM IN ANY SPECIFIC MANNER, AT A PARTICULAR SPEED, OR TO ANY PARTICULAR STANDARD; (4) MANAGED OR OTHER SECURITY SERVICES WILL PROVIDE ANY PARTICULAR LEVEL OF PROTECTION FOR CUSTOMER’S COMPUTERS, NETWORKS OR SYSTEMS; (5) HOSTED SERVICES WILL MEET ANY PARTICULAR LEVEL OF SECURITY, RELIABILITY OR COMPLIANCE, OR (6) THE SERVICES OR PRODUCTS CAN BE USED FOR A SPECIFIC PURPOSE.

19) Indemnification: Customer shall indemnify, defend, and hold PHYSAAS, its parent, affiliates, employees, directors, officers, agents, underlying carriers, and sub-contractors, harmless from any claim, loss or damages, including actual attorneys’ fees, resulting from Customer’s breach of any term of this Agreement, Customer’s placement of any material or content on PHYSAAS’s network, or from Customer’s use of PHYSAAS’s services or third party’s use of services, regardless of Customer’s knowledge or consent.

20) Customer Warranties:

a) Customer represents and warrants that it is an entity, duly organized, validly existing and in good standing under the laws of its origin, with all requisite power to enter into and perform its obligations under this Agreement in accordance with its terms.

b) Customer represents and warrants that neither its equipment nor facilities will pose a hazard to PHYSAAS’s equipment or facilities or create a hazard to PHYSAAS’s personnel or customers or the public in general.

c) Customer represents and warrants that its use of the services will comply and conform with PHYSAAS’s AUP along with all applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over the subject matter of this Agreement and Customer will be responsible for applying for, obtaining and maintaining all registrations and certifications which may be required by such authorities.

d) Customer represents and warrants that it will not resell all or a portion of the service(s) provided by PHYSAAS under this Agreement. Customer will indemnify and hold PHYSAAS harmless from any and all loss, liability, claim, demand, and expense (including reasonable attorneys’ fees) related to Customer’s violation of this Section.

21) Assignment: Customer may not assign its rights or delegate its responsibilities under the Agreement without PHYSAAS’s express written permission; except pursuant to the sale of Customer’s business, or all or substantially all of Customer’s assets. PHYSAAS may, at any time, assign its rights or delegate its obligations hereunder in accordance with the law of the State of Florida.

22) Entire Agreement and Amendments: The terms and conditions set forth in this Terms of Service, the Agreement (SOA and SOW), and applicable PHYSAAS price lists, represent the entire UNDERSTANDING of the parties with respect to the services provided hereunder, and supersede any prior agreements, promises, offers, communications, representations, statements, negotiations, understandings, or proposals, oral or written between Customer and PHYSAAS, any related entity or any of their respective employees, contractors or agents with respect to any services or products offered by PHYSAAS.

Customer acknowledges and agrees that Customer has not relied upon any statement, promise or representation by PHYSAAS, any related entity or any of their respective employees, contractors, or agents, including that relating to the performance, pricing, specification or other aspects of any service or product offered by PHYSAAS and not expressly set forth in this Agreement. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remainder of the provisions will nevertheless remain unimpaired and in effect. Nothing in the Agreement or these Terms of Service is intended to, or shall be construed, as creating a partnership or any third-party beneficiaries.

23) Survival: Any accrued rights to payment, any remedies, and all sections of the Agreement that by their nature would survive including without limitation, indemnification, remedies, warranty disclaimers and limits of liability, shall survive any expiration or termination of the Agreement.

24) Governing Law: The law of the State of Florida, without giving effect to its conflicts of law provisions, shall govern these Terms of Service, the Agreement and any dispute arising out of the Agreement. Failure of either party to insist upon the strict compliance by the other with any of the terms, covenants or conditions of these terms of Service or the Agreement shall not be construed as a waiver of any subsequent breach.

25) Compliance with Law: These Terms of Service and the Agreement are subject to all applicable law and the obtaining and continuance of any required approvals, authorizations, or tariffs or price lists filed with the FCC or any other governmental agency. PHYSAAS will use good faith reasonable efforts to obtain, retain, and maintain such approvals and authorizations. If any applicable law adversely affects the services or requires PHYSAAS to provide services other than in accordance with the terms of these Terms of Service and the Agreement, PHYSAAS may, without liability to Customer, terminate the affected services upon thirty (30) days prior written notice to Customer. In performing their obligations under these Terms of Service and the Agreement, the parties will comply with all applicable law. Customer shall fully indemnify, defend, and hold harmless PHYSAAS, its officers, directors, parent, and affiliated companies, employees, agents and subcontractors from all liabilities, claims, fees, expenses, costs or damages of any kind arising out of personal injury or death or damage to property related to services.

26) Confidential Information: Customer Proprietary Network Information (“CPNI”) shall only be disclosed in accordance with applicable law and PHYSAAS’s policies and procedures.

27) Third-Party Charges: PHYSAAS shall not be liable for any third-party charges arising from or related to the termination of any previous agreement for services or the failure of the Customer to terminate any previous agreement for services. If any property owner, under which Customer is a tenant, assesses a fee against PHYSAAS in order to, or as a result of, the provisioning of any services to Customer, PHYSAAS may pass through such charges to Customer.

28) Maintenance, Repair, and Upgrade of Facilities: Except as otherwise provided in these Terms of Service or in the Agreement, PHYSAAS will maintain The Service provided and perform any network upgrades at its sole discretion. PHYSAAS will repair service to Customer as necessary to provide the services ordered by Customer on an ongoing basis. The PHYSAAS Maintenance and Repair charge will cover the cost of any PHYSAAS dispatch and repair visits required to repair service provided to the Customer by PHYSAAS. PHYSAAS will not be responsible for any third-party repair fees from Customer’s equipment vendors. The PHYSAAS Maintenance and Repair charge does not cover the cost of any materials, equipment or other goods required for repairing service to the Customer; any such charges that are not covered under the warranty will be billed to the Customer as one-time charges.

29) PHYSAAS Property: PHYSAAS equipment will remain the sole and exclusive property of PHYSAAS, or PHYSAAS’s assignee, as may be applicable. Customer will not tamper with, remove, or conceal any PHYSAAS identifying plates, tags or labels. Customer will indemnify, hold harmless and defend PHYSAAS against any liens placed on PHYSAAS equipment due to Customer’s action or inaction. Any lien will be discharged by Customer within ten (10) days of notice of filing. Failure to discharge any such lien is a material breach of this Agreement and may result in immediate termination. PHYSAAS reserves the right to substitute, change or rearrange any equipment used in delivering services that does not affect the quality, cost, or type of services.

30) Service Management: PHYSAAS will manage its hardware and network at PHYSAAS’s sole discretion. Customer will provide all reasonable information, authorizations, and access required by PHYSAAS for the purpose of installing services, performing routine network grooming, maintenance, upgrades, and addressing emergencies.

31) General Description of Fees and Surcharges: Fees and surcharges are imposed or permitted by a government agency under a rule or regulation. In most cases they are designed to support a specific program (e.g. universal service fund, 911, deaf relay services, etc.).

32) Notices: All notices to Customer required by these Terms of Service or the Agreement will be in writing and will be made by one or more of the following methods: regular mail, overnight delivery, certified mail, electronic mail, or on Customer’s invoice. Notices will be sent to the address of record, and in the event of multiple addresses, to the address of the parent account. In the case of a notice to PHYSAAS, all notices under these Terms of Service or the Agreement except as otherwise specified in these terms of Service or the Agreement will be in writing and will be made by personal delivery, overnight delivery, or certified mail to: PhySaaS, 152 Woodcock Rd N Dartmouth, MA 02747, Attn: Customer Notices.

Verkada Licensing Terms

  • 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 all data provided by Customer to Verkada by means of the Products. Customer Data does not include System Data (defined below).

“Documentation” means the online documentation regarding the Hardware, available at www.verkada.com/docs/ or as otherwise provided within the Hosted Software.

“DPA” means the Data Processing Addendum available at www.verkada.com/support/dpa or other negotiated data protection agreement, entered into between Verkada and Customer.

“Firmware” means the software developed and maintained by Verkada that is stored on the Hardware and enables the basic functioning of the Hardware and its communication with the Hosted Software.

“Hardware” means the Verkada hardware products, including security cameras, access control units, alarm units, and environmental sensors.

“Hosted Software” means Verkada’s Software-as-a-Service system, currently known as “Command,” and related infrastructure made available to Customer to manage and configure the Hardware.

“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 Verkada to resell the Products, to whom Customer has delivered an ordering document for such Products.

“Product Feature(s)” means a unique feature set within the Hosted Software that is identified by a particular stock keeping unit (SKU) on a Purchase Order.

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

“Purchase Order” means each order document submitted to Verkada by a Partner on behalf of Customer, and accepted by Verkada, indicating Partner’s firm commitment to purchase the Products and for the prices set forth thereon.

“Service Level Agreement” means the Service Level Agreement set forth on Exhibit A hereto.

“Software” means the Firmware and Hosted Software.

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

“System Data” means configuration information, log and event data, Product performance data, and statistics regarding Customer’s use of the Products.

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

  • LICENSE AND RESTRICTIONS
    • License to Customer. Subject to the terms of this Agreement, Verkada grants Customer a royalty-free, nonexclusive, transferable (subject to Section 12) worldwide right during each License Term to use the Software, subject to the terms of this Agreement (“License”). Customer must purchase Licenses to use the Software for at least the number and type of Hardware units and/or Product Features it manages by means of the Software, however Customer may authorize an unlimited number of Users to access and use the Software. If Customer purchases additional Licenses, either in connection with the purchase of additional Hardware units or renewal of Licenses for existing Hardware units, the overall License Term will be modified such that the License Term for all Licenses purchased will expire and terminate on the same date. If Customer purchases the Monitoring Services (as defined on Exhibit B, the “Alarms Addendum”), the use of the Products in connection with the Monitoring Services will be subject to the terms of the Alarms Addendum.
    • License to Verkada. During the License Term, Customer will transfer Customer Data to Verkada while using the Products. Customer grants Verkada a non-exclusive right and license to use, reproduce, modify, store, and process Customer Data solely to maintain the Products and provide them to Customer. Customer represents and warrants that it possesses the necessary rights and authority to grant Verkada 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 for any competitive purposes (other than for routine product comparison purposes), including monitoring or testing their availability, security, performance, or functionality, in each case without Verkada’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, tamper with the Hardware, 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”).
  • HARDWARE WARRANTY AND WARRANTY RETURNS
    • Hardware Warranty. Verkada represents to the original purchaser and user of the Hardware that, for the period set forth in the applicable Documentation 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”).
    • Remedy for Breach of Hardware Warranty. Customer’s sole and exclusive remedy and Verkada’s (and its suppliers’ and licensors’) sole and exclusive liability for a breach of the Hardware Warranty will be, in Verkada’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 Verkada 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 Hardware Warranty period. Customer’s engaging in a Prohibited Use serves to void the Hardware Warranty.
    • Warranty Returns. To request a return under the Hardware Warranty, Customer must notify Verkada or the Partner within the Hardware Warranty period. To initiate a return directly to Verkada, Customer must send a return request to Verkada at support@verkada.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, Verkada 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 Verkada. 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 Verkada issued the RMA.
  • VERKADA OBLIGATIONS
    • General. Verkada is responsible for providing the Products in conformance with this Agreement, the Purchase Order(s), and applicable Documentation.
    • Availability. Verkada uses its best efforts to ensure that the Hosted Software 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 Hosted Software.
    • Support. If Customer experiences any errors, bugs, or other issues in its use of the Products, then Verkada 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 a Support case, Customer may grant access, in its sole discretion, to a member of Verkada’s Support team through functionality provided in the Hosted Software for a length of time determined by Customer.
    • Maintenance. Verkada will use commercially reasonable efforts to maintain the Products and implement updates, upgrades, and fixes as necessary to meet its obligations under this Agreement.
  • CUSTOMER OBLIGATIONS
    • Payment; Compliance. Customer is responsible for paying Partner for the Products pursuant to Partner’s invoice(s). In the event Customer is delinquent on fees, Verkada may pursue payment directly from Customer if Partner is unable to or chooses not to pursue such fees itself. Customer will use the Products only in accordance with the Documentation and in compliance with all applicable laws, including procurement and maintenance of any applicable licenses and permits. Customer will ensure that none of the Products are directly or indirectly exported, re-exported, or used to provide services in violation of the export laws and regulations of the United States or any other country. If Customer operates in a regulated industry, Customer represents that it 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. Verkada reserves the right to suspend use of any Products operating in violation of the obligations of this Section 5.1, following written notice to Customer.
    • Account Administration. Customer is responsible for identifying one or more individuals within Customer’s organization who will act as administrator(s) of Customer’s account. Such person(s) will be responsible for, among other things, monitoring and managing access privileges of other Users. Customer is also responsible for verifying, including ensuring that any third-party installer verify, that all Hardware Products purchased are properly claimed into Customer’s account within the Hosted Software prior to installation, as more fully set forth in the Documentation.
  • 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”). Verkada’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.
  • DATA PROTECTION

Verkada secures the Software and Customer Data in accordance with the security practices available at www.verkada.com/trust/security-controls. Verkada will process all Customer Data in accordance with the DPA.

  • OWNERSHIP
    • Verkada Property. Verkada owns and retains all right, title, and interest in and to the Software, the System Data, and all intellectual property embodied in the Hardware and accessories. Except for the limited license granted to Customer in Section 2.1, Verkada 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 Verkada’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 Verkada, except for the limited license set forth in Section 2.2.

Verkada Command Service Level Agreement

Service Levels

Verkada will use commercially reasonable efforts to make the Hosted Software available 99.99% or more of the time during any calendar month. Subject to the exclusions set forth below, an “Outage” will be defined as any time when the Hosted Software is not available due to a cause within the control of Verkada. The availability standard does not apply to any feature of the Hosted Software that Verkada identifies as a “beta” feature or service.

Service Credits

If Verkada fails to achieve the availability percentage above, Customer will be eligible to receive a credit (“Service Credit”) calculated as a certain number of days added to the end of the License Term. Service Credits are based on the actual availability of the Hosted Software in a given calendar month as set forth below. Service Credits are non-transferable.

Service Availability

Service Credit

Less than 99.99%

3 days

Less than 99.9%

5 days

Less than 99%

10 days

Less than 90%

15 days

Exclusions

Verkada does not include in its calculation of downtime any time the Hosted Software is not available due to:

  • Planned maintenance windows where notice of planned unavailability has been given, via the Hosted Software, at least two business days prior to the outage, unless in the case of emergency changes;
  • Force Majeure Events;
  • Actions or inactions on Customer’s part;
  • Events arising from Customer’s systems or any Customer websites;
  • ISP or Internet outages outside of Verkada’s control.

Sole Remedy

Notwithstanding any terms to the contrary in the Agreement, the Service Credits are Customer’s sole and exclusive remedy for any Outage.

EXHIBIT B

Verkada Alarms Addendum

This “Alarms Addendum” sets forth the terms applicable to Customer’s use of the Monitoring Services (as defined below).

  • Certain Definitions.
    • “Alarm(s)” means an alarm signal, data, video or audio transmission initiated by the Hardware installed on Customer’s premises signaling a specific type of situation that is transmitted to a Call Center for response via the Hosted Software.
    • “Call Center(s)” means a central monitoring station that receives and responds to an Alarm for Customer as more fully set forth below.
    • “Call List” means the list of names, with corresponding telephone numbers and email addresses, of those persons in the order Customer wishes to receive notification of Alarms which must be created, and updated by Customer from time to time, via the Hosted Software.
    • “First Responder(s)” means the entity (e.g., fire department, police department) that is contacted by the Call Center to respond to an Alarm received at the Call Center.
    • “Monitoring Services” means the automated Alarm transmission functionality enabled by the Software that, when triggered, transmits an Alarm to the Call Center for a response, as more fully described in the Documentation. The Monitoring Services are deemed to be a Product under the Agreement.
  • Monitoring Services.
    • In order to use the Monitoring Services, Customer must: (i) purchase a License for each location at which Monitoring Services will be provided (a “Monitoring License”); and (ii) enable the “Emergency Dispatch” toggle within the Hosted Software, as more fully described in the Documentation.
    • For each Alarm transmitted through the Hosted Software, the Call Center will respond in accordance with its internal operating procedures, and only if warranted in the sole discretion of the Call Center. Not all Alarms require notification to First Responders. If the video verification settings are set to ‘Normal Mode’ (as described in the Documentation), the Call Center may not notify the individuals on the Call List if it is unable to determine a threat to person or property, including because Call Center cannot discern a threat from the video provided or it is unable to access video of the trigger event. Once dispatched, the Call Center may be unable to recall First Responders.
    • In the event of notification to Customer, the Call Center will call the person(s) named in the Call List, in the order set by Customer. Receipt by Customer of any form of notification provided by the Call Center pursuant to the Call List, is deemed compliance with the notification obligation hereunder, which notice may include SMS or voice mail message.
    • If video or audio Alarms are received at the Call Center, the Call Center will monitor such video or sound in accordance with its internal operating procedures, and for so long as the Call Center, in its sole discretion, deems appropriate.
  • Customer’s Obligations.
    • Customer (or a properly licensed installer selected by Customer) is responsible for installation (including the design of such installation), maintenance, service, repair, inspection and testing of the Products. Once installed, it is Customer’s responsibility (or a properly licensed installer selected by Customer) to configure its Products in order to enable the Monitoring Services, including by creating and maintaining appropriate Trigger and Response Actions via the Hosted Software (i.e., by creating an “Alarm Address” within Customer’s account in the Hosted Software and configuring it in Customer’s discretion). Monitoring Services will be provided only if the Hardware Products have been configured to transmit Alarms to the Call Center by means of the foregoing.
    • Customer is responsible, at Customer’s sole expense, for supplying all systems, and incidental functionality (e.g., high-speed Internet access, IP Address and or wireless services, all 110 Volt AC power), necessary to operate the Products at Customer’s premises.
    • Once delivered, the Hardware Products are in the possession and control of Customer, and it is Customer’s sole responsibility to regularly test the operation of its Products. Verkada does not design installations, install, inspect, maintain, service, repair, or test Products for Customers.
    • Customer is responsible for obtaining and maintaining all licenses, registration and permits for the Products and Monitoring Services, including those required by the Customer’s local government, necessary to use the Products as contemplated under this Alarms Addendum in compliance with applicable laws and regulations.
  • Monitoring Services Exclusions.
    • Except for the systems under its control that Verkada uses to make the Hosted Software available, Alarms are transmitted over third party communication networks beyond the control of Verkada and are not maintained by Verkada. Verkada will not be responsible for any failure by such third-party networks which prevents transmission of Alarms from reaching the Call Center or any damages arising therefrom.
    • Verkada will have no liability for permit fees, false alarms, false alarm fines, the manner in which First Responders respond, any response delays caused by the First Responders, the failure of First Responders to respond, or the manner in which Alarms are handled by the Call Centers or First Responders.
    • Verkada makes no representation that any aspect of the Products meets code requirements or constitute an alarm system, burglar alarm system, fire alarm system, CCTV system, access control system or other electronic security system, as those terms are defined under the applicable laws of the jurisdictions in which Customer uses the Products.
    • Verkada is not a Call Center and does not provide the services of a Call Center. Verkada does not respond to an Alarm, notify, or attempt to notify the persons named in the Call List, request dispatch of First Responders, or other agents to Customer’s premises to investigate or verify an Alarm.  The portion of the Monitoring Services performed by Verkada is strictly limited to Verkada’s automated signal and data retransmission software, receivers, and related components, routing Alarms generated from the Products at Customer’s premise via a third-party network to a Call Center for response. The Customer is not contracting with Verkada to provide the services of the Call Center. Verkada and the Call Center are independent and unrelated entities, and there is no subcontractor, employer or employee, master or servant, joint venture, partnership, or contractual relationship between them.
  • Suspension & Termination. Verkada may, without prior notice, suspend or terminate the Monitoring Services, in Verkada’s sole discretion, in the event of: (a) a Force Majeure Event which renders any aspect of the Monitoring Services  inoperable or impractical; (b) Customer defaults in its performance obligations under the Agreement or use of the Products in a manner that violates any applicable law or any third party right of privacy; (c) Call Center’s facilities or communication networks are nonoperational; (d) Customer causes the Products to transmit excessive false alarms, runaway signals, or otherwise unreasonably overburdens either Verkada’s systems or the Call Center’s systems; or (e) Customer fails to provide accurate information within the Call List or fails to properly update the Call List.
  • No Representations or Warranties. Verkada makes no representation or warranty, whether express or implied, that the Products including the Monitoring Services will prevent any loss, damage or injury to any person or property, whether by reason of burglary, theft, hold-up, fire or any other cause, or that the Products will in all cases provide the protection for which they are installed or intended.  Monitoring Services are not error-free.  Verkada is not an insurer, and Customer assumes all risk for loss or damage to Customer’s premises, contents, business interruption, or persons on or around the premises. Customer’s sole remedy for Verkada’s breach of this Exhibit B is to require Verkada to replace the non-operational Products as set forth in Section 3.2 of the Agreement.

THE ABOVE EXCLUSIONS WILL NOT APPLY, IF THE GOVERNING LAW WHERE THE CUSTOMER’S PREMISE IS LOCATED PROHIBITS THE EXCLUSION OF IMPLIED WARRANTIES.

  • Indemnity. In addition to Section 10.2 of the Agreement, to the fullest extent permitted by governing law, Customer will indemnify, defend, and hold harmless Verkada Indemnitees from and against any Claim (including reasonable attorney’s fees, court costs, fees associated with investigations, or fees or fines relating to permits or false alarms) arising from Customer’s use of the Monitoring Services or its performance, or failure to perform, its obligations under this Exhibit B.
  • Exculpatory Clause.
    • To the fullest extent permitted by governing law, Verkada will not be liable for any loss or damage sustained by Customer caused or contributed by the performance, or failure of performance, of the Monitoring Services under this Exhibit B, even if caused or contributed by any negligence of any kind or degree of the Call Center, Verkada, or any other third-party, except for Verkada’s gross negligence in states that do not permit the exculpation of liability for gross negligence, recklessness and willful misconduct.
    • IN THE EVENT THAT THE EXCULPATORY CLAUSE IS NOT ENFORCEABLE UNDER THE GOVERNING LAW WHERE THE CUSTOMER’S PREMISES IS LOCATED, THE LIMITATIONS OF LIABILITY IN SECTION 11 OF THE AGREEMENT SHALL GOVERN AND CONTROL.
  • Insurance. Customer must maintain a policy of General Liability and Property Insurance for liability, casualty, fire, theft, and property damage and, upon request, will ensure that Verkada is named as additional insured, and which shall on a primary and non-contributing basis cover any loss or damage related to Customer’s use of the Products. Customer assumes all potential risk and damage that may arise by reason of failure of the Products, and Customer will look to its own insurance carrier for any loss or assume the risk of loss. Verkada will not be responsible for any portion of any loss or damage which is recovered or recoverable by Customer from insurance covering such loss or damage or for such loss or damage against which Customer is indemnified or insured. Customer and all those claiming rights under Customer policies waive all rights against Verkada and its subcontractors for loss or damages caused by perils intended to be detected by the Products or covered by insurance to be obtained by Customer, except such rights as Customer or others may have to the proceeds of insurance.
  • Conflict Resolution. In the event of any conflict, discrepancy, or inconsistency between the terms of the Agreement and this Exhibit B, the terms of this Exhibit B will govern and control.
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