AIREYE TERMS AND CONDITION
PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCEPTING THESE TERMS AND REGISTERING FOR, ACCESSING AND/OR USING THE AIREYE SERVICE.
By accessing and using the AirEye Service (as defined below), you acknowledge that you, on your own behalf as an individual and on behalf of your employer or another legal entity (collectively “you” or “your”), have read and understood and agree to comply with the terms and conditions below (“Terms”), and are entering into a binding legal agreement with AirEye Ltd. (“AirEye”, “us”, “we” or “our”). If you are entering into these Terms on behalf of your employer or other legal entity, that you have full authority to bind said employer or other legal entity to these Terms. If you do not agree to comply with and be bound by these Terms or do not have authority to bind your employer or other legal entity, please do not accept these Terms or access or use the Service. You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.
- Description of the Service. We or our applicable reseller, shall provide our proprietary wireless device, known as “Halo” (“Hardware”) at the applicable designated location, and such Hardware will operate in conjunction with the AirEye software (“Software”) solely as bundled. We shall provide you with access to our Software, provided as a software as a service basis (collectively, the “Services”), all as further set forth herein. You hereby agree to reasonably cooperate with AirEye and/or our authorized respective reseller in respect to the installation of the Hardware and provision of Services, including compliance with any instructions provided to you in connection therewith. The Hardware together with the Software and the Documentation (as defined below) are collectively referred to as the “System”. We wish to provide you with a license and access to use the Software and receive the Services as shall be specified in an applicable agreed order, issued by either us or our authorized respective reseller (“Order”), all subject to the terms of these Terms.
- The System and each of its components, excluding the Hardware, is and shall remain the sole property of AirEye. Subject to Section 8 below, while in its possession, the title to the Hardware shall pass to you and be used solely for the purpose of receiving the Services. You may not, nor shall not authorize or permit any third party to modify, disassemble, decompile, reverse engineer, revise or enhance the Hardware, or any part thereof, or integrate it with any other hardware or software, without the prior express written consent of AirEye.
- All Hardware shall be provided to you, in consideration for the Fees, for the sole purpose of providing the Services to you. You shall not use the Hardware for any other purpose whatsoever, nor shall you combine the Hardware with any other hardware or use it in conjunction with any other software. You shall bear full responsibility for the Hardware, including, without limitation, responsibility for preventing theft, any damages to the Hardware, and for maintaining the Hardware (other than warranty coverage as set forth herein) pursuant with all requirements set forth in the Documentation (such as temperature, humidity, light, sun, electric current/voltage and appropriate internet connection). You shall buy a replacement Hardware from AirEye for any damage caused to the Hardware, which is not a direct and sole result of AirEye’s errors. You shall notify AirEye within 48 hours of the occurrence of any damage or malfunction to the Hardware, whether due to your responsibility, or not. You shall not be entitled to raise any retroactive claims against AirEye, with respect to any damage or malfunction of the Hardware, in the event that you failed to notify AirEye of such damage or malfunction, during such time frame. In the event that the damage caused to the Hardware is the fault of AirEye, your sole and exclusive remedy shall be the replacement of such failed Hardware by AirEye; provided that you shall be responsible for destroying such failed Hardware at its own cost and expense.
- You understand that AirEye may make upgrades to Hardware models, designs, parts and accessories from time to time and may, in its sole reasonable discretion, replace your existing Hardware with such new Hardware. AirEye further may change the Services layout and design and the availability of the content and functions included therein or may change the form, features or nature of the Software included in the Services, from time to time. AirEye will make best efforts to provide you at least 30 days written notice prior to any material change in Hardware and/or Services. You and AirEye will work together on a mutually agreeable timeline to effectuate these changes in a timely manner. You hereby agree and acknowledges that AirEye is not responsible for any errors or malfunctions that may occur as the result of such changes should you fail to reasonably cooperate with AirEye in implementing such changes in a timely manner.
- Software License. Subject to your payment of the applicable Fees (as defined below), and subject to the terms and conditions of these Terms, AirEye hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable (solely in accordance with Section 15) license, during the Term (as defined below), to access the Software as a component of the System, for your internal business purposes only, in order to receive the Services. This license shall further include use of any results and data included in any reports generated through the System.
- Documentation. AirEye will make available to you certain documentation regarding the use, features, functions and operation of the System, including technical specifications, maintenance requirements and troubleshooting (which shall be considered AirEye’s Confidential Information (as defined below)) (collectively, “Documentation”). Documentation is to be used by you solely for your internal business purposes in connection with your use of the System in furtherance of the Services received during the Term. You may print or copy the Documentation as needed solely in furtherance of the permitted purposes; provided, that all applicable copyright notices are included therein, and that such copy shall also be considered as AirEye’s Confidential Information. AirEye reserves the right to update its Documentation from time to time, and will make reasonable efforts to provide notice of such updates to you through general announcements in the System and/or other correspondence directed to you.
- Account. A user account will be created in connection with your use of and access to the System (“Account”). You must provide accurate and complete Account and login information for yourself. You must not allow anyone else other than your employees and service providers who are explicitly authorized by you to use and access the System (each, a “Permitted User”). You shall ensure that such Permitted Users comply with all of your obligations under these Terms, and in any event, you shall remain liable at all times for any acts and/or omissions of any of your Permitted Users with respect to their performance hereunder. You hereby acknowledges and agrees: (i) to keep, and ensure that the Permitted Users will keep the Account login details and passwords secured at all times; (ii) to remain solely responsible and liable for the activity that occurs in the Account and for any breach of these Terms by a Permitted User; and (iii) to promptly notify AirEye in writing if you become aware of or has reason to believe that any unauthorized access or use of the Account or the System. To the maximum extent permitted by law, AirEye can delete your Account at any time in case of fraud, breach of these Terms, or other misuse of AirEye’s System. You hereby provide your consent to AirEye’s customer success personnel to use and access the System via your Account in order to provide the Services.
- Restrictions. You and/or your Permitted Users may only access the System via their Account and use it in furtherance of the receiving the Services in the manner permitted under these Terms. Except as expressly permitted by these Terms, you shall not and shall not allow a Permitted User or any third party, directly or indirectly: (a) rent, lease, sell, sublicense, distribute, assign or otherwise transfer the System to any third party, use the System for timesharing or service bureau purposes, or otherwise use the System for any commercial purpose for or on behalf of any third party; (b) reverse engineer or disassemble the Hardware components, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software; (c) copy, modify, distribute, adapt, translate or create derivative works based on the System; (d) integrate, incorporate, include or bundle the System or any part thereof, into or with any other software or hardware without receiving the prior written consent of AirEye; (e) use the System to perform comparisons or other “benchmarking” activities, either alone or in connection with any software or hardware (and you shall not publish any such performance information or comparisons); (f) use the System or any component thereof in a manner that violates or infringes any rights of any third party, including but not limited to, any right of privacy, proprietary rights, or Intellectual Property Rights (as defined below); (g) remove or otherwise modify any of AirEye’s trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed, incorporated, included or attached to the System (or any component thereof) or any written materials accompanying the System; (h) use the System for any purpose other than as permitted by these Terms and the standard purposes the System is designated for, as described herein and in the Documentation; (i) circumvent, interfere with or remove any device metering mechanism which is part of the System, or assist any third party to do so; (j) circumvent, disable or otherwise interfere with security-related features of the System (or its components) or features that enforce limitations on use of the System (or its components); (k) use any automated means to access the System; (l) violate or abuse log-in and/or password protections governing access to the System; (m) access, store, distribute, or transmit during the course of your use of the System any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system), or unlawful, threatening, obscene or infringing material; (n) use the System in any other unlawful manner or in any manner not expressly authorized by these Terms and/or (o) use the System’s prevention capabilities with third-party devices which may be connected to third party networks.
- Reports. As part of the Services purchased, you shall be provided access to certain reports generated by System monitoring and the processing of data and receiving results. AirEye shall be entitled, though not obliged, to monitor results and reports related to the Services provided to you, and to perform analytical research on such results and reports. You acknowledge and agree that AirEye may use such reports for AirEye’s internal analytical purposes and in order to enhance and improve the Services. You further consent to AirEye sending it periodic reports that AirEye deems to be relevant to your business based on System results.
- Ownership. The System shall at all times remain AirEye’s or its licensors’ sole and exclusive property. All right, title, and interest, including any Intellectual Property Rights, evidenced by or embodied in or attached/connected/related to the System and/or Services and to any customizations, enhancements or derivatives thereof, are and shall be owned solely by AirEye or its licensors. AirEye reserves all rights not expressly granted hereunder, and nothing in these Terms constitutes a waiver of AirEye’s Intellectual Property Rights under any law. To the extent you provide to AirEye specifications, designs, requirements, ideas, suggestions, developments, improvements or recommendations regarding the System, Services and/or AirEye’s technology and business (collectively, “Feedback”), such Feedback will not constitute joint development and shall be considered as AirEye’s Confidential Information and AirEye will be the exclusive owner of all right, title and interest in the Feedback, and AirEye is free to use and incorporate the Feedback without any obligation you. You hereby irrevocably and unconditionally transfer and assign to AirEye all Intellectual Property Rights you have in such Feedback and waive any and all moral rights that you may have in respect thereto. For the purposes of these Terms “Intellectual Property Rights” means all intangible legal rights, titles and interests, including without limitation, all inventions, patents, patent applications, trademarks, service marks, trade dress, logos, trade names, corporate names, domain names, any work of authorship, copyrights, trade secrets, Confidential Information, and all other proprietary rights in whatever form or medium, in each case on a worldwide basis; together with all revisions, extensions, reexaminations translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith.
- Limited Warranty
- Hardware Warranty. AirEye warrants to you that for a period of 1 year commencing on the date that the System was initially installed at your Site, subject to the terms and conditions of this Section 9, the Hardware will be free from defects in materials and workmanship and will substantially comply with the applicable specifications set out in the Documentation (“Hardware Warranty”). As your sole and exclusive remedy and AirEye’s sole liability for breach of this warranty, if AirEye receives notice from you of any non-conformance of the Hardware, AirEye will, at its option, either repair or replace such Hardware, at its own expense.
- Software Warranty. AirEye warrants to you that, for a period of 90 days commencing on the date that the System is initially installed at your Site, subject to the terms and conditions of this Section 9, the Software will substantially comply with the applicable specifications set out in the Documentation (“Software Warranty”).
- Warranty Service Exclusions. Warranty services described above exclude, and AirEye shall have no responsibility hereunder to support, any and all of the following: (i) Software or Hardware that has been altered, reconfigured or modified by you or any third party other than AirEye’s authorized customer support personnel; (ii) System, or any part thereof, that has been incorporated or bundled with other software or hardware not provided or approved in writing by AirEye and/or not specified in the Documentation; (iii) damage to the System (or any Hardware or Software components) caused by your (or anyone acting on your behalf) negligence, abuse or use other than as specified in these Terms and/or the Documentation or by natural disasters or other factors beyond the control of AirEye; (iv) Software problems not reproducible by AirEye; and/or (v) System not installed according to AirEye’s instructions or the Documentation.
- Third Party Materials. You understand that the System may include software, hardware and/or documentation that belong to one or more third parties (“Third Party Materials”). All restrictions and obligations of these Terms apply also to your use of such Third Party Materials. Such Third Party Materials may only be used in conjunction with the System. For the avoidance of doubt, you may not: (i) sublicense, transfer or distribute Third Party Materials except as expressly permitted herein; (ii) copy, modify, translate or create derivative works of any Third Party Materials; (iii) reverse engineer, decompile or disassemble such Third Party Materials; and/or (iv) remove or obscure any trademarks or notices (including copyright notices) in the Third Party Materials. You shall indemnify and hold AirEye harmless with respect to any claim, suit or proceeding brought against AirEye and will pay any damages or court costs awarded against AirEye, or agreed to by you in settlement or compromise (provided that such settlement or compromise was approved in advance and in writing by AirEye), to the extent such claim, suit, or proceeding relates to the breach of any terms and conditions regarding specified Third Party Materials by you or any party acting on your behalf. Notwithstanding anything herein to the contrary, Third Party Materials are supported subject to the support terms and conditions of their respective third party providers.
- Open Source Licenses. The Software may include certain open source code software and materials (“Open Source Software”) that are subject to their respective open source licenses (“Open Source Licenses”). Such Open Source Licenses contain list of conditions with respect to warranty, copyright policy and other provisions. By executing these Terms, you undertake to strictly comply with the terms and condition of the Open Source Licenses, as may be amended from time to time. In order to comply with the Open Source Licenses, you shall read the respective licenses or notices which are available within the Software’s notice text file as may be amended from time to time by AirEye at its sole discretion. In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of these Terms, the provisions of the Open Source Licenses shall prevail. Without derogating from the generality of the foregoing, it is clarified that any Open Source Software is provided on an “AS IS” basis, without warranty of any kind, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and that in no event shall AirEye or the author(s) of the Open Source Software be liable for any direct, indirect, incidental, special, exemplary, or consequential damages, however caused and on any theory of liability, arising in any way out of the use of the Open Source Software. For clarity, the warranties set forth in this Section 9 shall not apply to any Open Source Software.
- High Risk Activities. You acknowledge that the System is not specifically designed or intended for use in environments in which the failure of the System could lead directly to death, personal injury or severe physical or property damage (collectively, “High Risk Activities”). Without limiting the generality of Section 9.7 (Warranty Disclaimer) below, AirEye expressly disclaims any express or implied warranty of fitness for High Risk Activities.
- Warranty Disclaimer. AIREYE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE, INJURY OR DEATH WHICH MAY OCCUR DUE TO THE FAILURE OF THE SYSTEM, OR DUE TO NOT DETECTING ANY THREATS, MALFUNCTIONS AND ODDITIES. EXCEPT AS EXPLICITLY SET FORTH IN THESE TERMS, THE SYSTEM AND ANY SERVICES PROVIDED HEREUNDER (INCLUDING THE DOCUMENTATION) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND AIREYE DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM, SERVICES, OPERATION THEREOF, OR THE MATERIALS CONTAINED THEREIN. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SYSTEM AND THE SERVICES IS AT YOUR OWN RISK. AIREYE EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF THE SYSTEM AND/OR FITNESS FOR A PARTICULAR PURPOSE. AIREYE DOES NOT WARRANT THAT THE SYSTEM WILL MEET YOUR OR ANY OTHER THIRD PARTY’S REQUIREMENTS OR THAT THE OPERATION OF THE SYSTEM WILL BE SECURED AT ALL TIMES, UNINTERRUPTED, ERROR FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER SOFTWARE LIMITATIONS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. AIREYE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY TECHNICAL PROBLEMS OF THE INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR OUTAGES) AND/OR ANY ISSUE THAT IS ATTRIBUTABLE TO YOUR HARDWARE OR SOFTWARE OR YOUR INTERNET OR DATA SERVICE PROVIDER. AIREYE DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, REPORTS, INFORMATION, OR RESULTS THAT YOU OBTAIN THROUGH USE OF THE SYSTEM, OR THAT THE REPORTS ARE ACCURATE, COMPLETE OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY YOU.
- Support Services. Subject to your compliance with all the terms of these Terms, including all Hardware restrictions and requirements thereto, AirEye will provide Support Services to you in accordance with the Support and Maintenance Services Terms and Conditions that can be found in the following link: https://aireye.tech/service-level-agreement/
- Confidentiality. During the Term, each party may have access to certain non-public proprietary, confidential or trade secret information or data of the other party, and regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential or competitively sensitive (together, “Confidential Information”). Confidential Information shall exclude any information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of these Terms; or (iv) the receiving party can demonstrate in its records to have independently developed, without breach of these Terms and/or any use of or reference to the Confidential Information. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its, directors, officers, employees, advisors or consultants (collectively, “Representatives”) on a strict “need to know” basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein, and in any event, the receiving party shall remain responsible for the acts or omissions of its Representatives to the same extent as if such acts or omissions were performed by the receiving party; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under these Terms; and (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief. The parties’ obligations with respect to Confidential Information shall expire 5 years from the date of termination or expiration of these Terms, unless a longer period of protection applies under applicable law, either as trade secret information or otherwise. Without derogating from any other remedies available under applicable law or agreement, either party shall be entitled to obtain an injunction restraining any violation, further violation or threatened violation of the obligations set forth in this Section.
- Promotional Activity. You hereby consent to AirEye sending it periodic communications regarding new features, trends, suggestions for usage of the System, its components, or the Services, and other business proposals. You hereby consent to AirEye providing it, in electronic form (including e-mails), any information or notices that AirEye may be required by law to send to you, or that may pertain to the Services provided pursuant to these Terms. Notwithstanding the above, you may address AirEye, at any time, in writing, and request to stop receiving such emails.
- Reference. You agree that AirEye may identify you as a user of the System and use your trademark and/or logo: (i) in sales presentations, promotional/marketing materials, and press releases; and (ii) on AirEye’s website for promotional purposes.
- Pricing and Payments
- Pricing. In consideration for the System and Services, you shall pay AirEye the fees set forth in the Order (“Fees”). The Fees and all other amounts paid by you under these Terms are non-refundable.
- Payment Terms. The Fees shall be due and payable within 30 days of AirEye’s invoice (if you are located outside of Israel) or within net 30 days of AirEye’s invoice (if you are located in Israel), as applicable, and shall be paid in US dollars by wire transfer in accordance with the instructions of AirEye. Any payment which is properly due hereunder and is not paid by the due date will incur interest at a rate of 1.5% per month, not to exceed the maximum amount allowed by law. In addition, in case of any delay of payments due hereunder for more than 14 days, AirEye may, without derogating from its other rights or remedies available to it, suspend your access to and use of the System and/or the Services upon written notice to you (which may be by email or delivered via the System), until payment is fully completed.
- Taxes. All amounts payable to AirEye are exclusive of all taxes, sales tax, VAT, levies or similar governmental charges, however designated, including penalties and interest, imposed by any jurisdiction, except for taxes based on the net income of AirEye. If under applicable law taxes are required to be withheld, you shall pay AirEye an amount such that the net amount after withholding of taxes shall equal the amount that would have been otherwise payable under these Terms.
- Limits on the Usage. There are certain usage limits which may be specified in these Terms (“Usage Limits”). In the event that your usage exceeds its periodic package, higher rates shall be charged from you, as set forth in these Terms, with respect to access use. In the event that no specific rates are set forth in these Terms with respect to access use of the System, then you will be obligated to pay fees at AirEye’s then-current list prices. Any fees with respect to access use shall be immediately due and payable, including, at AirEye’s option, interest calculated from the date of the first un-permitted use.
- Term and Termination.
- Term. These Terms shall commence the Effective Date stated herein and shall remain in full force and effect through the initial time period specified in the applicable Order, unless earlier terminated as set forth herein (the “Initial Term”). Following the Initial Term, these Terms will be renewed automatically for successive 1 year periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”) unless either party notifies the other party, in writing, of its intent not to renew within 30 days prior to end of the then current Term.
- Termination. Either party may terminate these Terms by giving written notice to the other party if the other Party breaches a material provision of these Terms and fails to cure the breach within 30 days after being given written notice thereof. It is hereby clarified that during such 30 day period, AirEye may, without derogating from AirEye’s right to terminate these Terms as set forth below, suspend your access to and use of the System and/or the Services upon written notice you (which may be by email or delivered via the System). If AirEye in its sole but reasonable judgment believes you are using or permitting the use of the System or the Services in a manner that is in violation of these Terms or which may cause imminent or irreparable harm to AirEye or any third party, then AirEye may, without derogating from AirEye’s right to terminate these Terms for breach hereof, suspend your access to and use of the System and/or the Services until such time as AirEye believes the threat of harm, or actual harm, has passed, irrespective of any cure rights. Any suspension by AirEye of the Services under this Section shall not excuse you from your obligation to make payments under these Terms.
- Consequences. Upon termination of these Terms for any reason: (i) each party shall return to the other party any Confidential Information in tangible form obtained in connection with these Terms; (ii) AirEye will cease from providing the Services hereunder, the Software license granted to you under these Terms shall expire, and you shall discontinue all further use of or access to the System and/or the Services; and (iii) at AirEye’s request, you shall certify in writing to AirEye that all copies and partial copies of the Confidential Information have been either returned to AirEye or otherwise erased or destroyed and deleted from any computer, libraries or storage devices and are no longer and will not in the future be used by you. Notwithstanding anything else, AirEye may retain and use anonymous and non-personally identifiable information which derives from the use of the System and from the provision of the Services for AirEye business purposes, including without limitation, for purposes of improving, testing, operating, promoting and marketing AirEye’s products and services. For the avoidance of doubt, any payment obligation which had accrued or become payable prior to the date of termination shall survive termination of these Terms. Sections 2.1, 5 (the second and third sentences only), 8, 9, 11, 15.3 and 16 through 19, shall survive the termination or expiration of these Terms. You shall be responsible to download your data, if any, prior to termination of these Terms. Upon your written request, AirEye will reasonably cooperate with you for up to 30 days following termination or expiration of these Terms to allow it to download its data. This provision shall not apply if these Terms were terminated by AirEye due to an uncured breach by you. AirEye reserves the right to permanently delete from its servers any data that may be contained in your Account at any time following said 30 day period. AirEye do not accept any liability for any termination of the Services or data that is deleted in connection thereto. Termination of these Terms shall not limit AirEye or you from pursuing any remedies available to it under applicable law.
- Limitation of Liability. IN NO EVENT SHALL AIREYE’S LIABILITY UNDER, ARISING OUT OF OR RELATING TO THESE TERMS, EXCEED THE AMOUNT PAID TO AIREYE BY YOU FOR THE ORDER UNDER WHICH THE LIABILITY WAS INCURRED, OR IF NO SINGLE ORDER IS SO APPLICABLE, THEN AIREYE’S LIABILITY SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO AIREYE DURING THE 6 MONTH PERIOD PRECEDING SUCH EVENT. WITHOUT DEROGATING FROM THE ABOVE, IN NO EVENT WILL AIREYE BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR THE FOLLOWING TYPES OF DAMAGES (I) LOST PROFITS; (II) LOSS OF USE; (III) LOSS OF DATA; AND (IV) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, SUFFERED BY ANY PERSON, ARISING FROM, RELATED WITH, AND/OR CONNECTED TO, ANY USE OF OR INABILITY TO USE THE SYSTEM AND/OR THE SERVICES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT AIREYE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Indemnification. You agree to defend, indemnify and hold harmless AirEye, its owners, officers, directors, employees and agents, from and against any and all claims, demands, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to reasonable attorney’s fees) arising from: (i) your unauthorized use of the System or Services; (ii) your violation of any term or condition of these Terms or any applicable laws; and/or (iii) damage to persons or property due to the negligence or willful misconduct of you, your agent, employees, and/or contractors. Subject to the limitations set forth in these Terms, AirEye agrees to defend you against any claim, demand, suit or proceeding made or brought against it by a third party alleging that your use of the System or Services in accordance with these Terms infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify you against any damages and costs finally awarded against it as a result of such a claim, or for amounts paid under a settlement approved by AirEye, in writing; provided that you: (a) promptly give AirEye written notice of such a claim; (b) give AirEye sole control of the defense and settlement of such a claim (except that AirEye will not settle any such claim unless it unconditionally releases you of liability attributable to such infringement); and (c) give AirEye all reasonably requested assistance, at AirEye’s cost. If AirEye receives information about an infringement or misappropriation claim related to the System and/or Services it may, in its sole discretion and at no cost to you: (A) modify the System/Services so that it no longer infringes or misappropriates; (B) obtain a license to allow for your continued use in accordance with these Terms; or (C) terminate these Terms and refund any prepaid but unused Fees. If you choose not to upgrade to a non-infringing System or Service release, you are solely responsible to the third party for any violations of legal rights for such continued use. The above defense and indemnification obligations of AirEye do not apply to the extent a claim arises from: (x) alleged infringement or misappropriation caused by your combination of the System/Services or any of its components with any unauthorized software or hardware; (y) your breach of these Terms; and/or (z) your gross negligence and/or willful misconduct.
- Governing Law. These Terms are governed by and construed exclusively in accordance with the laws of the State of Israel, without regard to the principles of conflict of laws. Any and all disputes and controversies arising out of or in connection with these Terms shall be brought exclusively before the competent courts in Tel Aviv, Israel; provided however that nothing in this Section shall prevent or restrict either party from seeking interim relief in any competent jurisdiction as it may deem fit.
- Miscellaneous. These Terms represents the complete agreement concerning the subject matter hereof between you and AirEye and supersedes all prior agreements and representations between the parties. To the extent that the terms and conditions of these Terms conflict with the terms and conditions in the Order, these Terms will take precedence. For the avoidance of doubt, unless specifically stated otherwise in writing, any additional or inconsistent terms and conditions that appear on an Order or any other acknowledgement or automated business forms exchanged between AirEye and you shall not apply and are void. These Terms may be amended only in writing and executed by both parties. If any provision of these Terms are held to be unenforceable for any reason, such provision shall be construed only to the extent necessary to make it enforceable and the remainder of these Terms shall remain valid and enforceable according to its terms. The failure of AirEye to act with respect to a breach of these Terms by you or others does not constitute a waiver and shall not limit the rights of AirEye with respect to such breach or any subsequent breaches. The prevailing party in any action to enforce these Terms will be entitled to recover its attorney’s fees and costs in connection with such action. You may not assign these Terms or any rights under these Terms for any reason whatsoever (by operation of law or otherwise) without the consent of AirEye and any purported assignment in violation of the foregoing shall be void and without effect. AirEye will have the right to assign or delegate these Terms and/or any portion thereof as AirEye may deem appropriate. AirEye is not liable, either in whole or in part, for nonperformance or a delay in performance due to force majeure or contingencies or causes beyond the reasonable control of AirEye, including but not limited to, war, acts of god, strikes, epidemic, pandemic, shortage of labor, fuel, raw material or machinery or technical or yield failure. AirEye may, in its sole and absolute discretion, allocate production and deliveries in the event of a force majeure.
Last updated: February, 2022