Terms and Conditions for Onepoint, Mavn BI, and Sightline Products

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Subscription Terms and Conditions

Everon, LLC and/or SNK Technologies, LLC d/b/a DIGIOP, as the case may be (each individually and collectively the “Seller”), provides subscription services for web-based business intelligence and video management solutions (the “Services”). The purpose of these Subscription Terms and Conditions (these “Terms”) is to create a single mechanism under which Customer may subscribe to use Services under a SaaS subscription licensing model. These Terms shall govern the Services as identified in the sales agreement between Customer and Everon and in each order subsequently placed by Customer (each an “Order” and, collectively “Orders”). 

Customer agree as follows:

1. Services.  Seller shall host, provide, and make the Services (as ordered in any Order(s)) available to the Customer on a subscription basis as “software as a service” wherein the Customer’s use and access to the Services shall be via a web portal hosted by Seller or its affiliate or service provider.  Seller shall use commercially reasonable efforts to ensure that the Services is available to Customer 24 hours per day, 7 days per week, excluding any scheduled downtime or force majeure events.  Customer acknowledges that Seller may modify the Services in its sole discretion, provided the functionality of the Services, as applicable, will not be materially decreased during the applicable term.  Customer acknowledges that Customer must provide all equipment, data flows, and software necessary for Customer to use and access the Services and that Seller is not responsible for any configuration or detection and remediation of any Customer environment or infrastructure issues.  Equipment may be purchased under a separate agreement or terms and these Terms does not apply to any equipment purchase.  The Services do not include any professional services, including, without limitation, any customization, consulting and training, which professional services, if any, are subject to a separate written agreement.
2. Licenses, Restrictions and Property Rights. 
   1. Provided that the Customer abides by the terms of these Terms, Seller hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-transferable, world-wide, limited license to access and use the Services as provided herein, solely for Customer’s internal business purposes, and solely for the number of licensed site-specific Services deployments (“Instances”) set forth in the applicable Order(s) during the applicable term, if any, for the applicable Order for the Services.
   2. Seller retains all right, title, and interest in the Services and in all copies, improvements, enhancements, modifications, and derivative works of such Services including, without limitation, all rights to patents, copyrights, trade secrets, and trademarks. Unless authorized by Seller in writing, the Customer shall not, under any circumstance, make any copy, representation or distribution of any part of the Services.  There are no implied rights and all rights not expressly granted by Seller herein are reserved by Seller.
   3. Customer expressly agrees not to use the Services, or permit the Services to be used, for purposes of: (i) product evaluation, benchmarking or other comparative analysis intended for publication outside the Customer’s organization without Seller 's prior written consent; (ii) infringement on the intellectual property rights of any third party or any rights of publicity or privacy; (iii) violation of any law, statute, ordinance, or regulation (including, but not limited to, the laws and regulations governing export of software/technology, surveillance, premises monitoring, and/or anti-discrimination; (iv) propagation of any virus, worms, Trojan horses, or other programming routine or malware intended to damage any system or data; and/or (v) filing copyright or patent applications that include the Seller’s Services and/or documentation or any portion thereof. 
   4. Customer warrants and covenants that Customer has the right to provide any Customer data and content (including, without limitation, any video capture), and personal data submitted to Seller in connection with the Services. During the term of the Services, Customer hereby (i) grants to Seller and its service providers a worldwide, limited term license to collect and process certain Customer Confidential Information and Customer data, and (ii) authorizes Seller to collect and process certain personal data, for: (a) abuse, fraud, and transaction analysis, and loss prevention, (b) compliance, (c) security purposes, in accordance with these Terms, and (d) marketing of Seller products and services. Customer acknowledges and agrees that development of business intelligence from Seller's Services is critical to the functionality of the Services.  Customer hereby authorizes Seller to collect analytics during the term of the Services that may arise from Customer’s use of the Services. Further, Customer hereby authorizes Seller to use analytics worldwide to build, enhance, improve and maintain Seller services and for Seller’s other business purposes, provided that any use of such analytics will not identify Customer or any individual.
3. Subcontractors.  Seller may utilize subcontractors for performance of the hosting and other services contemplated by these Terms.  Any and all subcontractors utilized by Seller shall be required to protect the confidentiality of Customer Confidential Information (as defined below) to the same extent required by Seller. Seller will remain responsible for any of its subcontractors’ performance of the Services to the same Seller DIGIOP is liable under these Terms. Notwithstanding the foregoing, Seller’s liability for any downtime of the Services due to Seller’s hosting provider (Microsoft Azure as of the date hereof) will not exceed any liability of such hosting provider to Seller.
4. Confidentiality.  Customer acknowledges that in the course of performing its duties and exercising its rights under these Terms, it may be exposed to information that is private to the other party, including (without limitation) information relating to the other party’s past, present, or future business, processes, techniques, designs, codes, or other technical material and data, information concerning customers, and administrative, management, financial, marketing, and publishing information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including these Terms (including pricing and other terms reflected in an Order) (collectively, “Confidential Information”).  Without limiting the generality of the foregoing, Customer acknowledges that the Services, any Services documentation, and these Terms are the Confidential Information of Seller.  Neither party (as the “receiving party”) shall communicate or disclose the other party’s (as the “disclosing party”) Confidential Information to third parties at any time without the disclosing party’s written consent, except as expressly permitted in these Terms.  Notwithstanding any other confidentiality obligations between the parties, Customer authorizes Seller to, to the extent applicable, disclose information related to the Services to a reseller or distributor of the Services to Customer, subject to, and without limiting any confidentiality provisions of these Terms. A receiving party may disclose the disclosing party’s Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, to the extent permitted by law, the receiving party shall give prompt written notice to the disclosing party reasonably in advance of any such compelled disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure and, if disclosed, the scope of such disclosure is limited by receiving party to the extent possible. A receiving party’s duty of confidentiality does not extend to (i) any information available to the public without fault of the receiving party, or (ii) any information received from a third party who possesses the information lawfully and who has the right to disclose such information without an obligation of confidentiality.  The receiving party will return all copies of the disclosing party's Confidential Information upon the earlier of (a) the disclosing party’s request, or (b) the termination or expiration of the Services. Instead of returning such Confidential Information, the receiving party may destroy all copies of such Confidential Information in its possession; provided, however, the receiving party may retain a copy of any Confidential Information disclosed to it solely for archival purposes, provided that such copy is retained in secure storage and held in the strictest confidence for so long as the Confidential Information remains in the possession of the receiving party.  The parties acknowledge and agree that the confidentiality obligations set forth in these Terms are reasonable and necessary for the protection of the parties' business interests, that irreparable injury may result if such obligations are breached, and that, in the event of any actual or potential breach of this Section 4, the non-breaching party may have no adequate remedy at law and shall be entitled to seek injunctive and/or other equitable relief as may be deemed proper by a court of competent jurisdiction.
5. Limitations of Liability.
   1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER (OR SELLER’S THIRD PARTY LICENSORS’ AND SERVICE PROVIDERS’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES AND ALL ORDERS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION PRICE ACTUALLY PAID BY CUSTOMER IN CONSIDERATION FOR SELLER’S SERVICES DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SERVICES FROM WHICH THE CLAIM AROSE.
   2. IN NO EVENT SHALL SELLER (OR SELLER’S THIRD PARTY LICENSORS’ AND SERVICE PROVIDERS’) HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, THESE TERMS AND ANY ORDERS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF SELLER (OR SELLER’S THIRD PARTY LICENSORS AND/OR SERVICE PROVIDERS) WAS PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
   3. THE LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED IN THESE TERMS WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 5 ARE REFLECTED IN THE PRICING.
6. WARRANTY; DISCLAIMER OF WARRANTIES. Seller warrants that during the applicable Order term the Services will substantially conform to any electronic documentation for the Services made available to Customer by Seller. Customer will provide prompt written notice of any non-conformity. Seller may modify the documentation in its sole discretion, provided the functionality of the Services will not be materially decreased during the Order term. The foregoing warranty does not apply to: (a) Services that have been modified by any party other than Seller; or (b) Services that have been used in a manner other than as authorized under these Terms and in the applicable documentation.  As Customer's sole and exclusive remedy and Seller 's entire liability for any breach of the foregoing warranty in this Section 6, Seller will (i) use reasonable efforts to fix, provide a work around, or otherwise repair or replace the Services, as applicable, or if Seller is unable to do so, (ii) terminate the license to use such component of the Services and return any prepaid and unused subscription price paid for such allegedly defective Services, as applicable, for the period commencing from Customer's notice of nonconformity through the remainder of the term.  EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 6 ABOVE, SELLER MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGING DISCLAIMER, SELLER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET ANY PARTICULAR CUSTOMER REQUIREMENTS, THAT THE SERVICES WILL REMAIN COMPATIBLE WITH ANY EQUIPMENT, THAT THE OPERATION OF THE SELLER’S SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT ALL ERRORS WILL BE CORRECTED; OR THAT THE SERVICES WILL IDENTIFY ALL QUESTIONABLE, IRREGULAR OR UNAUTHORIZED INCIDENTS, TRANSACTIONS OR OTHER CIRCUMSTANCES.  NO DEALER, DISTRIBUTOR, RESELLER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THE WARRANTIES IN THESE TERMS.
7. Indemnity.  Customer shall defend, indemnify and hold Seller harmless from any claims, demands, suits, or proceedings ("Claims") made or brought by a third party alleging that Customer, or Customer’s use of the Services, infringes the rights of, or has caused harm to, a third party or violates any law, rule, regulation or ordinance.  Seller agrees to (a) promptly give written notice of the Claim to Customer (provided that any delay in notice will relieve Customer of its defense and indemnity obligations solely to the extent the defense of the Claim is permanently prejudiced by such delay); (b) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Seller of all liability); and (c) provide to Customer, at Customer's cost, all reasonable assistance requested by Customer.
8. Attorneys’ Fees.  The prevailing party in any action arising from or related to these Terms shall be entitled to recover from the losing party its reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled hereunder or at law or in equity.
9. Government End User Notices. This Section 9 shall apply only if Customer is a US federal government entity. The Services are provided with restricted rights. The Services are deemed commercially available hosted services and commercial computer software as defined in United States FAR 12.212 (Software) and/or commercially available technical data as defined in FAR 12.211 (Technical Data), and are subject to Seller's commercial licensing/use terms, as required by and FAR 52.227-19 (Commercial Computer Licensed Software — Restricted Rights) and, for U.S. Department of Defense transactions, DFARS 252.227-7015 (Technical Data — Commercial Items) and DFARS 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum to these Terms specifically conveying such rights must be executed by Customer and Seller.

Service Level for Technical Support

1. Introduction

1.1 Definition

This Service Level (SLA)cover all the technical services provided by Seller to the Customer, includes a description of the technical services provided by Seller to the Customer, as well as Customer’s responsibilities to Seller.

1.2 Definitions of terms in SLA

Customer: End User

Helpdesk: Seller’s call center which receives technical support requests

IT: End User Information Technology Department

Trouble Ticket: A phone call or email to the Helpdesk describing the issue. The support technician who resolves the issue documents any action via email or phone call.

2. Services

2.1 Software Support

Seller provides the following technical support for all Seller -supplied software, including:

• technical assistance for individuals and/or groups;

• troubleshooting of software defects;

• ongoing maintenance and application of updates.

2.2 Network Support

Seller Helpdesk provides network documentation for proper configuration of Seller branded software. Seller does not provide troubleshooting or configuration support for a customer’s network.  This is the responsibility of the End User via their IT support.

2.3 Availability

The Helpdesk staff provides support during Seller’s normal business hours, Monday through Friday (except for Seller recognized

holidays). The most efficient way to request support is to send an email along with a detailed description of the request and/or problem to support@everonsolutions.com. You may also contact the Helpdesk by phone at (855) 211-7025 In the event that Helpdesk staff are unavailable during business hours, please leave a voice mail message; voice mails received within business hours will be responded to within one hour. 

2.4 Response times

All logged requests to the Helpdesk will receive a response based on assigned priority. The

following response times are for trouble tickets which require technical support:

• Critical Priority: The technician will make the initial contact and begin problem resolution within 1 hour during normal business hours. The goal will be to resolve the problem within 4 hours after the initial contact.  This priority level is associated with a complete outage of Services or unauthorized exposure of all or part of Customer Data.

• Medium Priority: The technician will make the initial contact within one business day and will resolve the problem within three business days after the initial contact.  This priority level is associated with minor interruption of non-critical functions of the Services.

• Low Priority: The technician will make the initial contact within three business days and will negotiate a schedule for resolution with the client/Customer.  This priority level is associated with general questions pertaining to Services.

2.5 Other Services

In cases where the Customer requires special technology products or assistance other than those

provided and supported by Seller, Seller may recommend that the Customer procure services from a qualified third party. The cost for special projects is the sole responsibility of the

Customer (see below for Customer Responsibilities).

3. Customer Responsibilities

Customer agrees to:

• Follow Seller specified protocols for network communication.

• Ensure that all third parties contracted by Customer contact Seller before providing any hardware, software or support services to Customer (note: Seller will not provide support to Customer for any hardware, software and/or support services which have not been approved).

• Ensure on premise software can communicate with Seller cloud services.

• Be responsible for the communication of all Data to Seller services. 

• Notify Seller Helpdesk of any Data delivery or Network changes.

Service Level for Cloud Services

Standard scheduled uptime for the Seller cloud platform is 99.9%. 

Seller will provide access and use to the Platform consistent with the Service Level (“SLAs”) set forth below.  Seller shall provide, upon request, reports measuring its actual performance against the SLAs for the Customer’s experience. Seller represents that it has the tools, expertise, means and methods for measuring and reporting on the SLAs. 

Availability Service Level

1. Definitions,
   1. “Actual Uptime” shall mean the total minutes in the reporting month that the Services were actually available to Authorized Users for normal use.
   2. “Maintenance Window” shall mean the total minutes in the reporting month represented by the following day(s) and time(s) during which Seller shall maintain the Services.
   3. “Scheduled Downtime” shall mean the total minutes in the reporting month represented by the Maintenance Window.
   4. “Scheduled Uptime” shall mean the total minutes in the reporting month less the total minutes represented by the Scheduled Downtime
2. Service Level Standard. Services will be available to Authorized Users for normal use 99.9% of the Scheduled Uptime.
3. Calculation. (Actual Uptime/Scheduled Uptime)*100=Percentage Uptime (as calculated by rounding to the second decimal point)

DATA PRIVACY

RECITALS

A. Seller provides to Customer certain Services, as defined in the Subscription Terms and Conditions. 

B. To the extent that the provision of the Services involves Seller Processing Personal Information (as such terms are defined below) on Customer’s behalf, this Data Privacy Addendum to ensure compliance with applicable privacy laws.

Definitions

“Customer’s Personal Information” means all Personal Information that Customer provides or makes available to Seller, or that Seller otherwise Processes on Customer’s behalf, in each case, in connection with the provision of or as a part of the Services pursuant to these Terms.

“Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a consumer, household, or device. For the avoidance of doubt, Personal Information includes, but is not limited to, name, contact information (e.g. email, phone number and address), biometrics, education history, location data, online and device ID’s (e.g. IP Address), search and browsing history.

“Confidential Information” Confidential Information shall collectively refer to all non-public information or material disclosed or provided by one party to the other, either orally or in writing, or obtained by the recipient party from a third party or any other source, concerning any aspect of the business or affairs of the other party or its “affiliates”, including without limitation, any information or material pertaining to products, formulae, specifications, designs, processes, plans, policies, procedures, employees, work conditions, legal and regulatory affairs, assets, inventory, discoveries, trademarks, patents, manufacturing, packaging, distribution, sales, marketing, expenses, financial statements and data, customer and supplier lists, raw materials, costs of goods and relationships with third parties. Confidential Information also includes any notes, analyses, compilations, studies or other material or documents prepared by the recipient party which contain, reflect or are based, in whole or in part, on the Confidential Information. For the avoidance of doubt, Customer Confidential Information includes “Customer’s Personal Information”. 

“Process” or “Processing” means any operation or set of operations that are performed on Personal Information or on sets of Personal Information (including, but not limited to, retaining, using, disclosing, accessing, storing, or creating derivative works therefrom), regardless of whether by automated means.

Processing of Personal Information

Seller shall only Process Customer’s Personal Information for the purpose of Seller providing the Services.  Seller shall not retain, use, or disclose Customer’s Personal Information: (i) for any purpose (including, but not limited to, any commercial purpose) other than to perform the Services; or (ii) outside of the direct business relationship between Customer and Seller. 

Seller shall not sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate Customer’s Personal Information to any third party for monetary or other valuable consideration. 

Customer’s Personal Information must follow appropriate cryptography standards including but not limited to key management and encryption of data in transit and data at rest.

Consumer Requests

Customer shall notify Seller if Customer receives a request from an individual relating to the individual’s Personal Information that is Customer’s Personal Information (a “Consumer Rights Request”), and Seller shall  respond to Consumer Rights Request within five (5) business days after Seller’s receipt of the Consumer Rights Request and shall provide all details relating to any such Consumer Rights Request.  Seller shall respond to such Consumer Rights Request in accordance with applicable law and will cooperate with Customer to fully respond to all such Consumer Rights Requests. 

Data Return or Deletion

Seller shall promptly, and in any event within 20 (twenty) calendar days after the earlier of (i) Seller ceasing to Process Customer’s Confidential Information; (ii) termination of the Service, or (iii) at Customer’s written request and in accordance with applicable law, either (a) return a complete copy of all of Customer’s Confidential Information to Customer and securely and permanently erase and delete all other copies of Customer’s Confidential Information; or (b) securely and permanently erase and delete all copies of Customer’s Confidential Information Processed that Seller Processes.

At Customer’s direction at any time, and in any event upon termination or expiration of the Service, Seller will, and will cause its representatives to, immediately cease use of Customer Confidential Information and return the same to Customer and then destroy any and all residual copies of Customer Confidential Information (in whole or part), whether in hard copy or electronic format.  Seller will ensure that Customer Confidential Information is destroyed securely and in accordance with applicable law. 

Seller shall provide to Customer a written certification that Seller has complied fully with this section.

Certification

By executing this Addendum, Seller certifies that it understands the restrictions on Seller’s Processing Customer’s Personal Information set forth in this Data Privacy Addendum.