END USER LICENSE AGREEMENT
Section 1. Scope and Applicability
This End User License Agreement (“EULA”) between You and Intelex covers Your use of the Software. This document also incorporates any Product Specific Terms that may apply to the Software You acquire. Definitions of capitalized terms are in Section 13 (Definitions).
You agree to be bound by the terms of this EULA through (a) Your use of the Software; or (b) Your express agreement to this EULA; or (c) Your download or installation of the Software, either Yourself or on Your behalf (such as via a system integrator or Software distributor/partner).
You warrant that, if the download or installation of the Software is carried out on your behalf by a third party, such download or installation is carried out with your authority and such third party’s acceptance of the EULA is as your agent and on your behalf.
If You do not have authority to enter into this EULA or You do not agree with its terms, do not use the Software. You may request a refund for the Software within 30 days of Your initial purchase provided You return the Software to the Approved Source and disable or uninstall it. This paragraph does not apply where You have expressly agreed to end user license terms with Intelex as part of a transaction with an Approved Source.
Section 2. Using Software
2.1. License and Right to Use. Intelex grants You a non-exclusive, non-transferable (a) license to use the Software for Your direct benefit during the Usage Term and as set out in Your Entitlement and this EULA (collectively, the “Usage Rights”).
2.2. Use by Third Parties. You may permit Authorized Third Parties to exercise the Usage Rights on Your behalf, provided that You are responsible for (a) ensuring that such Authorized Third Parties comply with this EULA and (b) any breach of this EULA by such Authorized Third Parties.
2.3. Beta and Trial Use. If Intelex grants You Usage Rights in the applicable Software on a trial, evaluation, beta or other free-of-charge basis (“Evaluation Software and Services”), You may only use the Evaluation Software and Services on a temporary basis for the period limited by the license key or specified by Intelex in writing. If there is no period identified, such use is limited to 30 days after the Evaluation Software and Services are made available to You. If You fail to stop using and/or return the Evaluation Software and Services or the equipment on which it is authorized for use by the end of the trial period, You may be invoiced for its list price and agree to pay such invoice. Intelex, in its discretion, may stop providing the Evaluation Software and Services at any time, at which point You will no longer have access to any related data, information, and files and must immediately cease using the Software. The Evaluation Software and Services may not have been subject to Intelex’s usual testing and quality assurance processes and may contain bugs, errors, or other issues. Except where agreed to in writing by Intelex, You will not put Evaluation Software and Services into production use. Intelex provides Evaluation Software and Services “AS-IS” without support or any express or implied warranty or indemnity for any problems or issues, and Intelex will not have any liability relating to Your use of the Evaluation Software and Services.
2.4. Upgrades or Additional Copies of Software. You may only use Upgrades or additional copies of the Software beyond Your license Entitlement if You have (a) acquired such rights under a support agreement covering the applicable Software; or (b) You have purchased the right to use Upgrades or additional copies separately.
2.5. Interoperability of Software. If required by law and upon Your request, Intelex will provide You with the information needed to achieve interoperability between the Software and another independently created program, provided You agree to any additional terms reasonably required by Intelex. You will treat such information as Confidential Information.
2.6. Subscription Renewal. Usage Rights in Software acquired on a subscription basis will automatically renew for the renewal period indicated on the order You or Your Intelex Partner placed with Intelex (“Renewal Term”) unless: (a) You notify Your Approved Source in writing at least 45 days before the end of Your then-current Usage Term of Your intention not to renew; or (b) You or Your Intelex Partner elect not to auto-renew at the time of the initial order placed with Intelex. Your Approved Source will notify You reasonably in advance of any Renewal Term if there are fee changes. The new fees will apply for the upcoming Renewal Term unless You or Your Intelex Partner promptly notify Intelex in writing, before the renewal date, that You do not accept the fee changes. In that case, Your subscription will terminate at the end of the current Usage Term.
Section 3. Additional Conditions of Use
3.1. Software Generally. Unless expressly agreed in writing by Intelex, You may not (a) transfer, sell, sublicense, monetize or make the functionality of any Software available to any third party; (b) remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks; (c) reverse engineer, decompile, decrypt, disassemble, modify, or make derivative works of the Software; or (d) use Intelex Content other than as part of Your permitted use of the Software.
If You or Your Approved Source prepaid a fee for Your use of the Software that becomes EOL before the expiration of Your then-current Usage Term, Intelex will use commercially reasonable efforts to transition You to a substantially similar Software. If Intelex does not have substantially similar Software, then Intelex will credit You or Your Approved Source any unused portion of the prepaid fee for the Software that has been declared EOL (“EOL Credit”). The EOL Credit will be calculated from the last date the applicable Software is available to the last date of the applicable Usage Term. Such credit can be applied towards the future purchase of Intelex products.
3.2. Protecting Account Access. You will keep all account information up to date, use reasonable means to protect Your account information, passwords, and other login credentials, and promptly notify Intelex of any known or suspected unauthorized use of or access to Your account.
3.4. Open Source Software. Open source software not owned by Intelex is subject to separate license terms as set out at www.Intelexvision.com/legal/opensource . The applicable open source software licences will not materially or adversely affect Your ability to exercise Usage Rights in applicable Software.
Section 4. Fees
To the extent permitted by law, orders for the Software are non-cancellable. Fees for Your use of Software are set out in Your purchase terms with Your Approved Source. If You use Software beyond Your Entitlement (“Overage”), the Approved Source may invoice You, and You agree to pay, for such Overage.
Section 5. Confidential Information and Use of Data
5.1. Confidentiality. Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party, except for its employees, Affiliates, and contractors who have a need to know (“Permitted Recipients”). Recipient: (a) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient’s obligations under this EULA, and (b) is liable for any breach of this Section by its Permitted Recipients. Such nondisclosure obligations will not apply to information that: (i) is known by Recipient without confidentiality obligations; (ii) is or has become public knowledge through no fault of Recipient; or (iii) is independently developed by Recipient. Recipient may disclose Discloser’s Confidential Information if required under a regulation, law or court order provided that Recipient provides prior notice to Discloser (to the extent legally permissible) and reasonably cooperates, at Discloser’s expense, regarding protective actions pursued by Discloser. Upon the reasonable request of Discloser, Recipient will either return, delete or destroy all Confidential Information of Discloser and certify the same.
5.2. How We Use Data. Intelex will access, process and use data in connection with Your use of the Software in accordance with applicable privacy and data protection laws. For further detail, please visit www.intelexvision.com/legal/privacy .
5.3. Notice and Consent. To the extent Your use of the Software requires it, You are responsible for providing notice to, and obtaining consents from, individuals regarding the collection, processing, transfer and storage of their data through Your use of the Software.
Section 6. Ownership
Except where agreed in writing, nothing in this EULA transfers ownership in, or grants any license to, any intellectual property rights. You retain any ownership of Your content and Intelex retains ownership of the Software and Intelex Content. Intelex may use any feedback You provide in connection with Your use of the Software as part of its business operations.
Section 7. Indemnification
7.1. Claims. Intelex will defend any third-party claim against You that Your valid use of Software under Your Entitlement infringes a third party's patent, copyright or registered trademark (the “IP Claim”). Intelex will indemnify You against the final judgment entered by a court of competent jurisdiction or any settlements arising out of an IP Claim, provided that You: (a) promptly notify Intelex in writing of the IP Claim; (b) fully cooperate with Intelex in the defence of the IP Claim; and (c) grant Intelex the right to exclusively control the defence and settlement of the IP Claim, and any subsequent appeal. Intelex will have no obligation to reimburse You for attorney fees and costs incurred prior to Intelex's receipt of notification of the IP Claim. You, at Your own expense, may retain Your own legal representation.
7.2. Additional Remedies. If an IP Claim is made and prevents Your exercise of the Usage Rights, Intelex will either procure for You the right to continue using the Software or replace or modify the Software with functionality that is at least equivalent. Only if Intelex determines that these alternatives are not reasonably available, Intelex may terminate Your Usage Rights granted under this EULA upon written notice to You and will refund You a prorated portion of the fee You paid for the Software for the remainder of the unexpired Usage Term.
7.3. Exclusions. Intelex has no obligation with respect to any IP Claim based on: (a) compliance with any designs, specifications, or requirements You provide or a third party provides on Your behalf; (b) Your modification of any Software or modification by a third party; (c) the amount or duration of use made of the Software, revenue You earned, or services You offered; (d) combination, operation, or use of Software with non-Intelex products, software or business processes; (e) Your failure to modify or replace Software as required by Intelex; or (f) any Software provided on a no charge, beta or evaluation basis.
7.4. This Section 7 states Intelex’s entire obligation and Your exclusive remedy regarding any IP Claims against You.
7.5 Third-Party Products. You hereby unconditionally and irrevocably indemnify Intelex (including its Affiliates, officers, agents, directors and employees) and agree to hold them harmless from any and all all losses, damages, claims, awards, penalties, and/or costs, of whatsoever nature arising out of or pursuant to your use of any Third-Party Products (including product failures or inability to make full use of the products) and such indemnity shall extend to the reasonable costs that may be incurred by us in defending any action (or threatened action) against Intelex.
Section 8. Warranties and Representations
8.1. Performance. Intelex warrants that for a period of 1 (one) year from the Delivery Date or longer as stated in Documentation, the Software substantially complies with the Documentation.
8.2. Malicious Code. Intelex will use commercially reasonable efforts to deliver the Software free of Malicious Code.
8.3. Qualifications. Sections 8.1 and 8.2 do not apply if the Software or the equipment on which it is authorized for use: (a) has been altered, except by Intelex or its authorized representative; (b) has been subjected to abnormal physical conditions, accident or negligence, or installation or use inconsistent with this EULA or Intelex’s instructions; (c) is acquired on a no charge, beta or evaluation basis; (d) is not a Intelex-branded product or service; or (e) has not been provided by an Approved Source. Upon Your prompt written notification to the Approved Source during the warranty period of Intelex’s breach of this Section 8, Your sole and exclusive remedy (unless otherwise required by applicable law) is, at Intelex’s option, either (i) repair or replacement of the applicable Software or (ii) a refund of the license fees paid or due for the non-conforming Software excluding any amounts paid under a service level agreement/objective, if applicable.
8.4 Intelex makes no warranties or representations with respect to any Third-Party Products or third-party service providers.
8.5 Where Intelex provides a refund of license fees paid for Software, You must return or destroy all copies of the applicable Software. Except as expressly stated in this Section, to the extent allowed by applicable law, Intelex expressly disclaims all warranties and conditions of any kind, express or implied, including without limitation any warranty, condition or other implied term as to merchantability, fitness for a particular purpose or non-infringement, or that the Software will be secure, uninterrupted or error free. If You are a consumer, You may have legal rights in Your country of residence that prohibit the limitations set out in this Section from applying to You, and, where prohibited, they will not apply.
Section 9. Liability
9.1 Neither party will be liable for indirect, incidental, exemplary, special or consequential damages; loss or corruption of data or interruption or loss of business; or loss of revenues, profits, goodwill or anticipated sales or savings. The maximum aggregate liability of each party under this EULA is limited to (a) for claims solely arising from Software licensed on a perpetual basis, the fees received by Intelex for that Software; or (b) for all other claims, the fees received by Intelex for the applicable Software and attributable to the 12-month period immediately preceding the first event giving rise to such liability.
9.2 These limitations of liability do not apply to liability arising from (a) Your failure to pay all amounts due; or (b) Your breach of Sections 2.1 (License and Right to Use), 3.1 (Software Generally), or 12.8 (Export). This limitation of liability applies whether the claims are in warranty, contract, tort (including negligence), infringement, or otherwise, even if either party has been advised of the possibility of such damages. Nothing in this EULA limits or excludes any liability that cannot be limited or excluded under applicable law. This limitation of liability is cumulative and not per incident.
9.3 Notwithstanding anything to the contrary in this EULA, Intelex shall never incur any liability to You or any third-party with respect to your use (or inability to use) of any Third-Party Product, including in respect of any Third-Party Product failures. You irrevocably agree that Your sole remedy in relation to any claims related to Third-Party Products shall be to claim directly from such Third-Party Product supplier. In the event that this clause 9.3 is held to be invalid, then in such instance you irrevocably agree that the maximum liability of Intelex shall be limited to the fees received by Intelex for the applicable Software and attributable to the 12-month period immediately preceding the first event giving rise to such liability.
Section 10. Termination and Suspension
10.1. Suspension. Intelex may immediately suspend Your Usage Rights if You breach Sections 2.1 (License and Right to Use), 3.1 (Software Generally), or 12.8 (Export).
10.2. Termination. If a party materially breaches this EULA and does not cure that breach within 30 days after receipt of written notice of the breach, the non-breaching party may terminate this EULA for cause. Intelex may immediately terminate this EULA if You breach Sections 2.1 (License and Right to Use), 3.1 (Software Generally), or 12.8 (Export). Upon termination of the EULA, You must stop using the Software and destroy any copies of Software and Confidential Information within Your control. If this EULA is terminated due to Intelex’s material breach, Intelex will refund You or Your Approved Source, the prorated portion of fees You have prepaid for the Usage Rights beyond the date of termination. Upon Intelex’s termination of this EULA for Your material breach, You will pay Intelex or the Approved Source any unpaid fees through to the end of the then-current Usage Term. If You continue to use or access any Software after termination, Intelex or the Approved Source may invoice You, and You agree to pay, for such continued use.
Section 11. Verification
During the Usage Term and for a period of 12 months after its expiry or termination, You will take reasonable steps to maintain complete and accurate records of Your use of the Software sufficient to verify compliance with this EULA (“Verification Records”). Upon reasonable advance notice, and no more than once per 12-month period, You will, within 30 days from Intelex’s notice, allow Intelex and its auditors access to the Verification Records and any applicable books, systems (including Intelex product(s) or other equipment), and accounts during Your normal business hours. If the verification process discloses underpayment of fees: (a) You will pay such fees; and (b) You will also pay the reasonable cost of the audit if the fees owed to Intelex as a result exceed the amounts You paid for Your Usage Rights by more than 5%.
Section 12. General Provisions
12.1. Survival. Sections 4, 5, 6, 8, 9, 10, 11 and 12 survive termination or expiration of this EULA.
12.2. Third Party Beneficiaries. Unless it expressly states otherwise, this EULA does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this EULA.
12.3. Assignment and Subcontracting. Except as set out below, neither party may assign or novate this EULA in whole or in part without the other party’s express prior written consent. Intelex may (a) by written notice to You, assign or novate this EULA in whole or in part to an Affiliate of Intelex, or otherwise as part of a sale or transfer of any part of its business; or (b) subcontract any performance associated with the Software to third parties, provided that such subcontract does not relieve Intelex of any of its obligations under this EULA.
12.4. Intelex Partner Transactions. If You purchase Software from a Intelex Partner, the terms of this EULA apply to Your use of that Software and prevail over any inconsistent provisions in Your agreement with the Intelex Partner.
12.5. Modifications to the EULA. Intelex may change this EULA or any of its components by updating this EULA on www.intelexvision.com/legal/EULA . Changes to the EULA apply to any Entitlements acquired or renewed after the date of modification.
12.6. Compliance with Laws. Each party will comply with all laws and regulations applicable to their respective obligations under this EULA. Intelex may restrict the availability of the Software in any particular location or modify or discontinue features to comply with applicable laws and regulations.
12.7 If You use the Software in a location with local laws requiring a designated entity to be responsible for collection of data about individual end users and transfer of data outside of that jurisdiction (e.g. Russia and China), You acknowledge that You are the entity responsible for complying with such laws.
12.8. Export. Intelex’s Software, products, technology and services (collectively the “Intelex Products”) are subject to. export control and sanctions laws of England and Wales and the European Union. You acknowledge and agree to the applicability of and Your compliance with those laws, and You will not receive, use, transfer, export or re-export any Intelex Products in a way that would cause Intelex to violate those laws. You also agree to obtain any required licenses or authorizations.
12.9. Governing Law and Jurisdiction. This EULA, and any disputes or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England and Wales. Each party hereby irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this EULA r its subject matter or formation.
12.10 Without prejudice to any other rights or remedies that each party may have, each party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this EULA by the other party. Accordingly, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of Intelex’s intellectual property or proprietary rights.
12.11. Notice. Any notice delivered by Intelex to You under this EULA will be delivered via email, regular mail or postings on www.intelexvision.com or www.isentryai.com . Notices to Intelex should be sent to Intelex Vision Ltd, Admirals Office, Main Gate Road, The Historic Dockyard, Catham, United Kingdom ME4 4TZ unless this EULA, applicable Product Specific Terms or an order specifically allows other means of notice.
12.11. Force Majeure. Except for payment obligations, neither party will be responsible for failure to perform its obligations due to an event or circumstances beyond its reasonable control.
12.12. No Waiver. Failure by either party to enforce any right under this EULA will not waive that right.
12.13. Severability. If any provision or part-provision of this EULA is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this EULA.
12.14. Entire agreement. This EULA is the complete agreement between the parties with respect to the subject matter of this EULA and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral).
12.15. Translations. Intelex may provide local language translations of this EULA in some locations. You agree that those translations are provided for informational purposes only and if there is any inconsistency, the English version of this EULA will prevail.
12.16. Order of Precedence. If there is any conflict between this EULA and any Product Specific Terms expressly referenced in this EULA, the order of precedence is: (a) such Product Specific Terms; (b) this EULA (excluding the Product Specific Terms and any Intelex policies); then (c) any applicable Intelex policy expressly referenced in this EULA.
12.17 No partnership or agency. Nothing in this EULA is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Section 13. Definitions
“Affiliate” means any corporation or company that directly or indirectly controls, or is controlled by, or is under common control with the relevant party, where “control” means to: (a) own more than 50% of the relevant party; or (b) be able to direct the affairs of the relevant party through any lawful means (e.g., a contract that allows control).
“Approved Source” means Intelex or a Intelex Partner.
“Authorized Third Parties” means Your Users, Your Affiliates, Your third-party service providers, and each of their respective Users permitted to access and use the Software on Your behalf as part of Your Entitlement.
“Confidential Information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this EULA, which is (a) conspicuously marked as confidential or, if verbally disclosed, is summarized in writing to the Recipient within 14 days and marked as confidential; or (b) is information which by its nature should reasonably be considered confidential whether disclosed in writing or verbally.
“Delivery Date” means the date agreed in Your Entitlement, or where no date is agreed: (a) where Usage Rights in Software are granted for Software, the earlier of the date Software is made available for download or installation, or the date that Intelex ships the tangible media containing the Software.
“Documentation” means the technical specifications and usage materials officially published by Intelex specifying the functionalities and capabilities of the applicable Software.
“Entitlement” means the specific metrics, duration, and quantity of Software that You commit to acquire from an Approved Source through individual acquisitions or Your participation in a Intelex buying program.
“Intelex” “we” “our” or “us” means Intelex Vision Ltd. or its applicable Affiliate(s).
“Intelex Content” means any (a) content or data provided by Intelex to You as part of Your use of the Software and (b) content or data that the Software generates or derives in connection with Your use. Intelex Content includes geographic and domain information, rules, signatures, threat intelligence and data feeds and Intelex’s compilation of suspicious URLs.
“Intelex Partner” means a Intelex authorized reseller, distributor or systems integrator authorized by Intelex to sell Software.
“Malicious Code” means code that is designed or intended to disable or impede the normal operation of, or provide unauthorized access to, networks, systems, Software other than as intended by the Software (for example, as part of some of Intelex’s security products).
“Product Specific Terms” means additional product related terms applicable to the Software You acquire as set out at www.Intelexvision.com/legal/softwareterms .
“Software” means the iSentry Video-analysis Software Suite, which is composed of: an Unusual Behaviour module, based on an unbiased and unsupervised self-learning algorithm that learns the normal behaviour patterns of objects captured on a CCTV feed, generating alerts on detected unusual behaviour; a TREX (Threat Detection and Extraction) module, aimed at perimeter and area intrusion detection; a Deep Learning Object and Behaviour classification module; an automated AI Rules and Logic Engine Module for contextualization and additional optional modules such as facial recognitionincluding all Upgrades, firmware and applicable Documentation related thereto.
“Third-Party Products” means any products or services other than the Software whether they are used directly or indirectly in relation to the Software, including any products or services that are provided by an Approved Source.
“Upgrades” means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software.
“Usage Term” means the period commencing on the Delivery Date and continuing until expiration or termination of the Entitlement, during which period You have the right to use the applicable Software.
“User” means the individuals (including contractors or employees) permitted to access and use the Software on Your behalf as part of Your Entitlement.
“You” means the individual or legal entity purchasing the Software.