Subscription Software Agreement
This Subscription Software Agreement (the “Subscription Software Agreement”) is entered into between Callyo 2009 Corp., with offices at 200 2nd Ave S., #143, St. Petersburg, FL 33701 (“Callyo”) and the entity set forth in the signature block below (“Customer”). Callyo and Customer will each be referred to herein as a “Party” and collectively as the “Parties”. This Agreement (as defined below) is effective as of the earlier of (a) the first purchase of Subscription Software or a Service from Callyo, and (b) the date of the last signature on the first Ordering Document (as defined below) between the Parties (the “Effective Date”).
If you are purchasing Subscription Software or Services on behalf of your employer or another entity, you warrant that: (a) you have authority to bind your employer or the applicable entity, as “Customer” to this Agreement; (b) you have read and understand this Agreement; and (c) on behalf of the Customer that you represent, you agree to this Agreement. If you do not have the legal authority to bind your employer or the applicable entity as Customer to this Agreement, please do not complete the purchase of Subscription Software or Services from Callyo.
1.1. Scope; Agreement Documents. This Subscription Software Agreement governs Customer’s purchase of cloud-based software as a service products and other software which is licensed to Customer by Callyo on a subscription basis (“Subscription Software”) and related services, which may be recurring or one-time (“Services”) provided by Callyo. Subscription Software and Services are collectively referred to as the “Software and Services”. Additional terms and conditions applicable to specific Software and Services are set forth in one or more addenda attached to this Subscription Software Agreement (each an “Addendum”, and collectively the “Addenda”). In addition, the Parties may agree upon statements of work, schedules, quotes, technical specifications, and other ordering documents setting forth the Software and Services to be purchased by Customer and provided by Callyo and additional rights and obligations of the Parties (the “Ordering Documents”). To the extent required by applicable procurement law, a proposal submitted by Callyo in response to a competitive procurement process will be included within the meaning of the term Ordering Documents. This Subscription Software Agreement, the Addenda, and any Ordering Documents collectively form the Parties’ “Agreement”.
1.2. Modifications. Callyo may modify this Agreement (including the Addenda) at any time after providing notice thereof to Customer on www.motorolasolutions.com/product-terms. Modifications are effective as of the date of publication, and if Customer does not agree to any such modifications, Customer must cease using the Software and Services.
1.3. Order of Precedence. Each Addendum will control with respect to conflicting terms in this Subscription Software Agreement, but only as applicable to the Software and Services described in such Addendum. Each Ordering Document will control with respect to conflicting terms in this Subscription Software Agreement or any Addenda, but only as applicable to the Software and Services described on such Ordering Document.
2. Subscription Software.
2.1. Delivery. During the applicable Subscription Term (as defined below), Callyo will provide to Customer the Subscription Software set forth in an Ordering Document, in accordance with the terms of the Agreement. Callyo will provide Customer advance notice (which may be provided electronically) of any planned downtime. Delivery will occur upon Customer’s receipt of credentials required for access to the Subscription Software or upon Callyo otherwise providing access to the Subscription Software. If agreed upon in an Ordering Document, Callyo will also provide Services related to such Subscription Software.
2.2. Modifications. Callyo may modify the Subscription Software, recurring Services and any related systems so long as their functionality (as described in the applicable Ordering Document) is not materially degraded. Documentation (as defined below) for the Subscription Software may be updated to reflect such modifications. For clarity, new features or enhancements that are added to any Subscription Software or Services may be subject to additional Fees.
2.3. User Credentials. If applicable, Callyo will provide Customer with administrative user credentials for the Subscription Software, and Customer will ensure such administrative user credentials are accessed and used only by Customer’s employees with training on their proper use. Customer will protect, and will cause its Authorized Users to protect, the confidentiality and security of all user credentials, including any administrative user credentials, and maintain user credential validity, including by updating passwords. Customer will be liable for any use of the Subscription Software through such user credential (including through any administrative user credentials), including any changes made to the Subscription Software or issues or user impact arising therefrom. To the extent Callyo provides Services to Customer in order to help resolve issues resulting from changes made to the Subscription Software through user credentials, including through any administrative user credentials, or issues otherwise created by Authorized Users, such Services will be billed to Customer on a time and materials basis, and Customer will pay all invoices in accordance with the payment terms below.
2.4. Beta Services. If Callyo makes any beta version of a software application (“Beta Service”) available to Customer, Customer may choose to use such Beta Service at its own discretion, provided, however, that Customer will use the Beta Service solely for purposes of Customer’s evaluation of such Beta Service, and for no other purpose. Customer acknowledges and agrees that all Beta Services are offered “as-is” and without any representations or warranties or other commitments or protections from Callyo. Callyo will determine the duration of the evaluation period for any Beta Service, in its sole discretion, and Callyo may discontinue any Beta Service at any time. Customer acknowledges that Beta Services, by their nature, have not been fully tested and may contain defects or deficiencies.
2.5. Customer Obligations. Customer will ensure that information Customer provides to Callyo in connection with receipt of Software and Services are accurate and complete in all material respects. Customer will make timely decisions and obtain any required management approvals that are reasonably necessary for Callyo to provide the Software and Services and perform its other duties under this Agreement. Unless the applicable Ordering Document states otherwise, Callyo may rely upon and is not required to evaluate, confirm, reject, modify, or provide advice concerning any assumptions or Customer information, decisions, or approvals described in this Section. If any assumptions in the Ordering Documents or information provided by Customer prove to be incorrect, or if Customer fails to perform any of its obligations under this Agreement, Callyo’s ability to perform its obligations may be impacted and changes to the Agreement, including the scope, Fees, and performance schedule may be required.
2.6. Documentation. Software and Services may be delivered with documentation for the equipment, software, or data that specifies technical and performance features, capabilities, users, or operation, including training manuals, and other deliverables, such as reports, specifications, designs, plans, drawings, analytics, or other information (collectively, “Documentation”). Documentation is and will be owned by Callyo, unless otherwise expressly agreed in an Addendum or Ordering Document that certain Documentation will be owned by Customer. Callyo hereby grants Customer a limited, royalty-free, worldwide, non-exclusive license to use the Documentation solely for its internal business purposes in connection with the Software and Services.
2.7. Authorized Users. Customer will ensure its employees and Authorized Users comply with the terms of this Agreement and will be liable for all acts and omissions of its employees and Authorized Users. Customer is responsible for the secure management of Authorized Users’ names, passwords and login credentials for access to Software and Services. “Authorized Users” are Customer’s employees, full-time contractors engaged for the purpose of supporting the Software and Services that are not competitors of Callyo, and the entities (if any) specified in an Ordering Document or otherwise approved by Callyo in writing (email from an authorized Callyo signatory accepted), which may include affiliates or other Customer agencies.
2.8. Support of Downloaded Clients. If Customer purchases any Subscription Software that requires a client installed locally on Customer-Provided Equipment, Customer will be responsible for downloading and installing the current version of such client, as it may be updated from time to time. Callyo will use reasonable efforts to continue supporting any version of a client for forty-five (45) days following its release, but Callyo may update the current version of its client at any time, including for bug fixes, product improvements, and feature updates, and Callyo makes no representations or warranties that any Subscription Software will support prior versions of a client.
2.9. Export Control. Customer, its employees, and any other Authorized Users will not access or use the Software and Services in any jurisdiction in which the provision of such Software and Services is prohibited under applicable laws or regulations (a “Prohibited Jurisdiction”), and Customer will not provide access to the Software and Services to any government, entity, or individual located in a Prohibited Jurisdiction. Customer represents and warrants that (a) it and its Authorized Users are not named on any U.S. government list of persons prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) it and its Authorized Users are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) Customer will not permit its Authorized Users to access or use the Subscription Software or Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) Customer and its Authorized Users will comply with all applicable laws regarding the transmission of technical data exported from the U.S. and the country in which Customer, its employees, and the Authorized Users are located.
3. Term and Termination.
3.1. Subscription Terms. The duration of Customer’s subscription to the first Subscription Software and any recurring Services ordered under this Subscription Software Agreement (or the first Subscription Software or recurring Service, if multiple are ordered at once) will commence upon delivery of such Subscription Software (and recurring Services, if applicable) and will continue for a twelve (12) month period or such longer period identified in an Ordering Document (the “Initial Subscription Period). Following the Initial Subscription Period, Customer’s subscription to the Subscription Software and any recurring Services will automatically renew for additional twelve (12) month periods (each, a “Renewal Subscription Year”), unless either Party notifies the other Party of its intent not to renew at least thirty (30) days before the conclusion of the then-current Subscription Term. (The Initial Subscription Period and each Renewal Subscription Year will each be referred to herein as a “Subscription Term”.) Callyo may increase Fees prior to any Renewal Subscription Year. In such case, Callyo will notify Customer of such proposed increase no later than thirty (30) days prior to commencement of such Renewal Subscription Year. Unless otherwise specified in the applicable Ordering Document, if Customer orders any additional Subscription Software or recurring Services under this Subscription Software Agreement during an in-process Subscription Term, the subscription for each new Subscription Software or recurring Service will (a) commence upon delivery of such Subscription Software or Service, and continue until the conclusion of Customer’s then-current Subscription Term (a “Partial Subscription Year”), and (b) automatically renew for Renewal Subscription Years thereafter, unless either Party notifies the other Party of its intent not to renew at least thirty (30) days before the conclusion of the then-current Subscription Term. Thus, unless otherwise specified in the applicable Ordering Document, the Subscription Terms for all Subscription Software and recurring Services hereunder will be synchronized.
3.2. Term. The term of this Subscription Software Agreement (“Term”) will commence on the Effective Date and continue until the expiration or termination of all Subscription Terms under this Subscription Software Agreement, unless this Subscription Software Agreement is earlier terminated in accordance with the terms herein.
3.3.1. For Default. Either Party may terminate the Agreement or the applicable Addendum or Ordering Document if the other Party breaches a material obligation under the Agreement and does not cure such breach within thirty (30) days after receipt of notice of the breach or fails to produce a cure plan within such period of time. Notwithstanding the foregoing, Callyo may terminate the Agreement (or any Addendum or Ordering Documents hereunder), or suspend delivery of Subscription Software or Services, immediately upon notice to Customer if (a) Customer breaches Section 10.3 – Subscription Software License, Section 10.4 – End User Licenses, or Section 10.5 – Customer Restrictions of this Subscription Software Agreement, or any other provision related to Subscription Software license scope or restrictions set forth in an Addendum or Ordering Document, or (b) it determines that Customer’s use of the Subscription Software poses, or may pose, a security or other risk or adverse impact to any Subscription Software, Callyo, Callyo’s systems, or any third party (including other Callyo customers). Customer acknowledges that Callyo made a considerable investment of resources in the development, marketing, and distribution of the Subscription Software and Documentation, and that Customer’s breach of the Agreement will result in irreparable harm to Callyo for which monetary damages would be inadequate. If Customer breaches this Agreement, in addition to termination, Callyo will be entitled to all available remedies at law or in equity (including immediate injunctive relief).
3.3.2. Addenda; Ordering Documents. Each Addendum and Ordering Document may be separately terminable as set forth therein.
3.3.3. Wind Down of Subscription Software. Callyo may terminate any Ordering Document and Subscription Term, in whole or in part, in the event Callyo plans to cease offering the applicable Subscription Software or Service to customers.
3.4. Suspension of Services. Callyo may terminate or suspend any Software and Services under an Ordering Document if Callyo determines: (a) the related Subscription Software license has expired or has terminated for any reason; (b) the applicable Subscription Software is being used on a hardware platform, operating system, or version not approved by Callyo; (c) Customer fails to make any payments when due; or (d) Customer fails to comply with any of its other obligations or otherwise delays Callyo’s ability to perform.
3.5. Effect of Termination or Expiration. Upon termination for any reason or expiration of this Subscription Software Agreement, an Addendum, or an Ordering Document, Customer and the Authorized Users will stop use of any Subscription Software and return or destroy (at Callyo’s option) all Callyo Confidential Information in their possession or control and, as applicable, provide proof of such destruction. If Customer has any outstanding payment obligations under this Agreement, Callyo may accelerate and declare all such obligations of Customer immediately due and payable by Customer. Notwithstanding the reason for termination or expiration, Customer must pay Callyo for Software and Services already delivered. Customer has a duty to mitigate any damages under this Agreement, including in the event of default by Callyo and Customer’s termination of this Agreement.
4. Payment and Invoicing.
4.1. Fees. Unless otherwise provided in an Ordering Document, Customer will prepay an annual subscription fee for each Subscription Software and recurring Service, and pay any fees specified for other Services provided hereunder in accordance with the applicable Addendum or Ordering Document (the “Fees”), before the commencement of each Subscription Term. For any Partial Subscription Year, the applicable annual subscription Fee will be prorated based on the number of months in the Partial Subscription Year. The annual subscription Fee for Subscription Software and recurring Services may include certain one-time Fees, such as start-up fees, license fees, or other fees set forth in an Ordering Document. Callyo will have the right to suspend the Subscription Software and any recurring Services if Customer fails to make any payments when due. Fees may be changed by Callyo at any time, except that Callyo will not change the applicable Fees during a Subscription Term.
4.2. Taxes. The Fees do not include any excise, sales, lease, use, property, or other taxes, assessments, duties, or regulatory charges or contribution requirements (collectively, “Taxes”), all of which will be paid by Customer, except as exempt by law, unless otherwise specified in an Ordering Document. If Callyo is required to pay any Taxes, Customer will reimburse Callyo for such Taxes (including any interest and penalties) within thirty (30) days after Customer’s receipt of an invoice therefore. Callyo will be solely responsible for reporting taxes on its income and net worth.
4.3. Invoicing; Payment. Customer will pay Fees upon the earlier of (a) thirty (30) days prior to the commencement of the applicable Subscription Term, and (b) within thirty (30) days of the applicable invoice date, or as otherwise specified in the applicable Addendum or Ordering Document. Late payments will be subject to interest charges at the maximum rate permitted by law, commencing upon the due date. Callyo may invoice electronically via email, and Customer agrees to receive invoices via email at the email address set forth in an Ordering Document. Customer acknowledges and agrees that a purchase order or other notice to proceed is not required for payment for Software and Services.
4.4. License True-Up. Callyo will have the right to conduct an audit of total user licenses credentialed by Customer for any Subscription Software during a Subscription Term, and Customer will cooperate with such audit. If Callyo determines that Customer’s usage of the Subscription Software during the applicable Subscription Term exceeded the total number of licenses purchased by Customer, Callyo may invoice Customer for the additional licenses used by Customer, pro-rated for each additional license from the date such license was activated, and Customer will pay such invoice in accordance with the payment terms in this Section 4 – Payment and Invoicing.
5. Customer-Provided Equipment; Non-Callyo Content.
5.1. Customer-Provided Equipment. Certain components, including equipment and software, not provided by Callyo may be required for use of the Software and Services (“Customer-Provided Equipment”). Customer will be responsible, at its sole cost and expense, for providing and maintaining the Customer-Provided Equipment in good working order. Customer represents and warrants that it has all rights in Customer-Provided Equipment to permit Callyo to access and use the applicable Customer-Provided Equipment to provide the Software and Services under this Agreement, and such access and use will not violate any laws or infringe any third-party rights (including intellectual property rights). Customer (and not Callyo) will be fully liable for Customer-Provided Equipment, and Customer will immediately notify Callyo of any Customer-Provided Equipment damage, loss, change, or theft that may impact Callyo’s ability to provide the Software and Services under this Agreement, and Customer acknowledges that any such events may cause a change in the Fees or performance schedule under the applicable Ordering Document.
5.2. Non-Callyo Content. In certain instances, Customer may be permitted to access, use, or integrate Customer or third-party software, services, content, and data that is not provided by Callyo (collectively, “Non-Callyo Content”) with or through the Software and Services. If Customer accesses, uses, or integrates any Non-Callyo Content with the Software and Services, Customer will first obtain all necessary rights and licenses to permit Customer’s and its Authorized Users’ use of the Non-Callyo Content in connection with the Software and Services. Customer will also obtain the necessary rights for Callyo to use such Non-Callyo Content in connection with providing the Software and Services, including the right for Callyo to access, store, and process such Non-Callyo Content (e.g., in connection with the Subscription Software), and to otherwise enable interoperation with the Software and Services. Customer represents and warrants that it will obtain the foregoing rights and licenses prior to accessing, using, or integrating the applicable Non-Callyo Content with the Software and Services, and that Customer and its Authorized Users will comply with any terms and conditions applicable to such Non-Callyo Content. If any Non-Callyo Content require access to Customer Data (as defined below), Customer hereby authorizes Callyo to allow the provider of such Non-Callyo Content to access Customer Data, in connection with the interoperation of such Non-Callyo Content with the Software and Services. Customer acknowledges and agrees that Callyo is not responsible for, and makes no representations or warranties with respect to, the Non-Callyo Content (including any disclosure, modification, or deletion of Customer Data resulting from use of Non-Callyo Content or failure to properly interoperate with the Software and Services). If Customer receives notice that any Non-Callyo Content must be removed, modified, or disabled within the Software and Services, Customer will promptly do so. Callyo will have the right to disable or remove Non-Callyo Content if Callyo believes a violation of law, third-party rights, or Callyo’s policies is likely to occur, or if such Non-Callyo Content poses or may pose a security or other risk or adverse impact to the Software and Services, Callyo, Callyo’s systems, or any third party (including other Callyo customers). Nothing in this Section will limit the exclusions set forth in Section 7.1 – Intellectual Property Infringement.
6. Representations and Warranties.
6.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) it has the right to enter into the Agreement and perform its obligations hereunder, and (b) the Agreement will be binding on such Party.
6.2. WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, SOFTWARE AND SERVICES PURCHASED HEREUNDER ARE PROVIDED “AS IS” AND WITH ALL FAULTS. WARRANTIES SET FORTH IN THE AGREEMENT ARE THE COMPLETE WARRANTIES FOR THE SOFTWARE AND SERVICES AND CALLYO DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND QUALITY. CALLYO DOES NOT REPRESENT OR WARRANT THAT USE OF THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF SECURITY VULNERABILITIES, OR THAT THEY WILL MEET CUSTOMER’S PARTICULAR REQUIREMENTS.
7.1. Intellectual Property Infringement. Callyo will defend Customer against any third-party claim alleging that a Callyo-developed Subscription Software (the “Infringing Product”) directly infringes a United States patent or copyright (“Infringement Claim”), and Callyo will pay all damages finally awarded against Customer by a court of competent jurisdiction for an Infringement Claim, or agreed to in writing by Callyo in settlement of an Infringement Claim. Callyo’s duties under this Section 7.1 – Intellectual Property Infringement are conditioned upon: (a) Customer promptly notifying Callyo in writing of the Infringement Claim; (b) Callyo having sole control of the defense of the suit and all negotiations for its settlement or compromise; and (c) Customer cooperating with Callyo and, if requested by Callyo, providing reasonable assistance in the defense of the Infringement Claim.
7.1.1. If an Infringement Claim occurs, or in Callyo’s opinion is likely to occur, Callyo may at its option and expense: (a) procure for Customer the right to continue using the Infringing Product; (b) replace or modify the Infringing Product so that it becomes non-infringing; or (c) grant Customer a pro-rated refund of any amounts pre-paid for the Infringing Product.
7.1.2. In addition to the other damages disclaimed under this Agreement, Callyo will have no duty to defend or indemnify Customer for any Infringement Claim that arises from or is based upon: (a) Customer Data, Customer-Provided Equipment, Non-Callyo Content, or third-party equipment, hardware, software, data, or other third-party materials; (b) the combination of the Subscription Software or Services with any products or materials not provided by Callyo; (c) any Subscription Software or Service designed, modified, or manufactured in accordance with Customer’s designs, specifications, guidelines or instructions; (d) a modification of the Subscription Software or Services by a party other than Callyo; (e) use of the Subscription Software or Services in a manner for which the Subscription Software or Service was not designed or that is inconsistent with the terms of this Agreement; or (f) the failure by Customer to use or install an update to the Subscription Software or Services that is intended to correct the claimed infringement. In no event will Callyo’s liability resulting from an Infringement Claim extend in any way to any payments due on a royalty basis, other than a reasonable royalty based upon revenue derived by Callyo from Customer from sales or license of the Infringing Product.
7.1.3. This Section 7.1 – Intellectual Property Infringement provides Customer’s sole and exclusive remedies and Callyo’s entire liability in the event of an Infringement Claim. For clarity, the rights and remedies provided in this Section are subject to, and limited by, the restrictions set forth in Section 8 – Limitation of Liability below.
7.2. Customer Indemnity. Customer will defend, indemnify, and hold Callyo and its subcontractors, subsidiaries and other affiliates harmless from and against any and all damages, losses, liabilities, and expenses (including reasonable fees and expenses of attorneys) arising from any actual or threatened third-party claim, demand, action, or proceeding arising from or related to (a) Customer-Provided Equipment, Customer Data, or Non-Callyo Content, including any claim, demand, action, or proceeding alleging that any such equipment, data, or materials (or the integration or use thereof with the Software and Services) infringes or misappropriates a third-party intellectual property or other right, violates applicable law, or breaches the Agreement, (b) Customer-Provided Equipment’s failure to meet the minimum requirements set forth in the applicable Documentation or match the applicable specifications provided to Callyo by Customer in connection with the Subscription Software or Services; (c) Customer’s (or its service providers, agents, employees, or Authorized User’s) negligence or willful misconduct; and (d) Customer’s or its Authorized User’s breach of this Agreement. This indemnity will not apply to the extent any such claim is caused by Callyo’s use of Customer-Provided Equipment, Customer Data, or Non-Callyo Content in violation of the Agreement. Callyo will give Customer prompt, written notice of any claim subject to the foregoing indemnity. Callyo will, at its own expense, cooperate with Customer in its defense or settlement of the claim.
8. Limitation of Liability.
8.1. DISCLAIMER OF CONSEQUENTIAL DAMAGES. EXCEPT FOR PERSONAL INJURY OR DEATH, CALLYO, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “CALLYO PARTIES”) WILL NOT BE LIABLE IN CONNECTION WITH THIS AGREEMENT (WHETHER UNDER CALLYO’S INDEMNITY OBLIGATIONS, A CAUSE OF ACTION FOR BREACH OF CONTRACT, UNDER TORT THEORY, OR OTHERWISE) FOR, ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR REVENUES, EVEN IF CALLYO HAS BEEN ADVISED BY CUSTOMER OR ANY THIRD PARTY OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND WHETHER OR NOT SUCH DAMAGES OR LOSSES ARE FORESEEABLE.
8.2. DIRECT DAMAGES. EXCEPT FOR PERSONAL INJURY OR DEATH, THE TOTAL AGGREGATE LIABILITY OF THE CALLYO PARTIES, WHETHER BASED ON A CLAIM IN CONTRACT OR IN TORT, LAW OR EQUITY, RELATING TO OR ARISING OUT OF THE AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID FOR THE SUBSCRIPTION SOFTWARE TO WHICH THE CLAIM IS RELATED DURING THE CONSECUTIVE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FROM WHICH THE FIRST CLAIM AROSE.
8.3. ADDITIONAL EXCLUSIONS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CALLYO WILL HAVE NO LIABILITY FOR DAMAGES ARISING OUT OF (A) CUSTOMER DATA, INCLUDING ITS TRANSMISSION TO CALLYO, OR ANY OTHER DATA AVAILABLE THROUGH THE SUBSCRIPTION SOFTWARE OR SERVICES; (B) CUSTOMER-PROVIDED EQUIPMENT, NON-CALLYO CONTENT, CUSTOMER’S SITES, OR THIRD-PARTY EQUIPMENT, HARDWARE, SOFTWARE, DATA, OR OTHER THIRD-PARTY MATERIALS, OR THE COMBINATION OF THE SUBSCRIPTION SOFTWARE OR SERVICES WITH ANY OF THE FOREGOING; (C) LOSS OF DATA OR HACKING; (D) MODIFICATION OF SUBSCRIPTION SOFTWARE OR SERVICES BY ANY PERSON OTHER THAN CALLYO; (E) RECOMMENDATIONS PROVIDED IN CONNECTION WITH OR BY THE SUBSCRIPTION SOFTWARE AND SERVICES; (F) DATA RECOVERY SERVICES OR DATABASE MODIFICATIONS; (G) INTERRUPTION OR FAILURE OF CONNECTIVITY, VULNERABILITIES, OR SECURITY EVENTS; (H) DISRUPTION OF OR DAMAGE TO CUSTOMER’S OR THIRD PARTIES’ SYSTEMS, EQUIPMENT, OR DATA, INCLUDING DENIAL OF ACCESS TO USERS, OR SHUTDOWN OF SYSTEMS CAUSED BY INTRUSION DETECTION SOFTWARE OR HARDWARE; (I) AVAILABILITY OR ACCURACY OF ANY DATA AVAILABLE THROUGH THE SUBSCRIPTION SOFTWARE OR SERVICES, OR INTERPRETATION, USE, OR MISUSE THEREOF; (J) TRACKING AND LOCATION-BASED SERVICES; (K) BETA SERVICES; OR (L) CUSTOMER’S OR ANY AUTHORIZED USER’S BREACH OF THIS AGREEMENT OR MISUSE OF THE SUBSCRIPTION SOFTWARE OR SERVICES.
8.4. Voluntary Remedies. Callyo is not obligated to remedy, repair, replace, or refund the purchase price for the disclaimed issues in Section 8.3 – Additional Exclusions above, but if Callyo agrees to provide Services to help resolve such issues, Customer will reimburse Callyo for its reasonable time and expenses, including by paying Callyo any Fees set forth in an Ordering Document for such Services, if applicable.
8.5. Statute of Limitations. Customer may not bring any claims against a Callyo Party in connection with this Agreement or the Software and Services more than one (1) year after the date of accrual of the cause of action.
9.1. Confidential Information. “Confidential Information” means any and all non-public information provided by one Party (“Discloser”) to the other (“Recipient”) that is disclosed under this Agreement in oral, written, graphic, machine recognizable, or sample form, being clearly designated, labeled or marked as confidential or its equivalent or that a reasonable businessperson would consider non-public and confidential by its nature. With respect to Callyo, Confidential Information will also include Software and Services, and Documentation, as well as any other information relating to the Software and Services. The nature and existence of this Agreement are considered Confidential Information of the Parties. In order to be considered Confidential Information, information that is disclosed orally must be identified as confidential at the time of disclosure and confirmed by Discloser by submitting a written document to Recipient within thirty (30) days after such disclosure. The written document must contain a summary of the Confidential Information disclosed with enough specificity for identification purpose and must be labeled or marked as confidential or its equivalent.
9.2. Obligations of Confidentiality. During the Term and for a period of three (3) years from the expiration or termination of this Agreement, Recipient will (a) not disclose Confidential Information to any third party, except as expressly permitted in this Section 9 – Confidentiality; (b) restrict disclosure of Confidential Information to only those employees (including, employees of any wholly owned subsidiary, a parent company, any other wholly owned subsidiaries of the same parent company), agents or consultants who must access the Confidential Information for the purpose of, and who are bound by confidentiality terms substantially similar to those in, this Agreement; (c) not copy, reproduce, reverse engineer, de-compile or disassemble any Confidential Information; (d) use the same degree of care as for its own information of like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information; (e) promptly notify Discloser upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement; and (f) only use the Confidential Information as needed to fulfill its obligations and secure its rights under this Agreement.
9.3. Exceptions. Recipient is not obligated to maintain as confidential any information that Recipient can demonstrate by documentation (a) is publicly available at the time of disclosure or becomes available to the public without breach of this Agreement; (b) is lawfully obtained from a third party without a duty of confidentiality to Discloser; (c) is otherwise lawfully known to Recipient prior to such disclosure without a duty of confidentiality to Discloser; or (d) is independently developed by Recipient without the use of, or reference to, any of Discloser’s Confidential Information or any breach of this Agreement. Additionally, Recipient may disclose Confidential Information to the extent required by law, including a judicial or legislative order or proceeding.
9.4. Ownership of Confidential Information. All Confidential Information is and will remain the property of Discloser and will not be copied or reproduced without the express written permission of Discloser (including as permitted herein). Within ten (10) days of receipt of Discloser’s written request, Recipient will return or destroy all Confidential Information to Discloser along with all copies and portions thereof, or certify in writing that all such Confidential Information has been destroyed. However, Recipient may retain (a) one (1) archival copy of the Confidential Information for use only in case of a dispute concerning this Agreement and (b) Confidential Information that has been automatically stored in accordance with Recipient’s standard backup or recordkeeping procedures, provided, however that Recipient will remain subject to the obligations of this Agreement with respect to any Confidential Information retained subject to clauses (a) or (b). No license, express or implied, in the Confidential Information is granted to the Recipient other than to use the Confidential Information in the manner and to the extent authorized by this Agreement. Discloser represents and warrants that it is authorized to disclose any Confidential Information it discloses pursuant to this Agreement.
10. Proprietary Rights and Subscription Software License; Data; Feedback.
10.1. Data Definitions. The following terms will have the stated meanings: “Customer Contact Data” means data Callyo collects from Customer, its Authorized Users, and their end users for business contact purposes, including marketing, advertising, licensing and sales purposes; “Service Use Data” means data generated by Customer’s use of the Software and Services or by Callyo’s support of the Software and Services, including personal information, location, monitoring and recording activity, product performance and error information, activity logs and date and time of use; “Customer Data” means data, information, and content, including images, text, videos, documents, audio, telemetry and structured data base records, provided by, through, or on behalf of Customer, its Authorized Users, and their end users through the use of the Software and Services. Customer Data does not include Customer Contact Data, Service Use Data, or information from publicly available sources or other Third-Party Data or Callyo Data; “Third-Party Data” means information obtained by Callyo from publicly available sources or its third party content providers and made available to Customer through the Subscription Software or Services; “Callyo Data” means data owned or licensed by Callyo; “Feedback” means comments or information, in oral or written form, given to Callyo by Customer or Authorized Users, including their end users, in connection with or relating to the Subscription Software or Services; and “Process” or “Processing” means any operation or set of operations which is performed on personal information or on sets of personal information, whether or not by automated means, such as collection, recording, copying, analyzing, caching, organization, structuring, storage, adaptation, or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
10.2. Callyo Materials. Customer acknowledges that Callyo may use or provide Customer with access to software, tools, data, and other materials, including designs, utilities, models, methodologies, systems, and specifications, which Callyo has developed or licensed from third parties (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de-compilations, disassemblies, or derivative works of the foregoing, whether made by Callyo or another party) (collectively, “Callyo Materials”). The Software and Services, Callyo Data, Third-Party Data, and Documentation, are considered Callyo Materials. Except when Callyo has expressly transferred title or other interest to Customer by way of an Addendum or Ordering Document, the Callyo Materials are the property of Callyo or its licensors, and Callyo or its licensors retain all right, title and interest in and to the Callyo Materials (including, all rights in patents, copyrights, trademarks, trade names, trade secrets, know-how, other intellectual property and proprietary rights, and all associated goodwill and moral rights). For clarity, this Agreement does not grant to Customer any shared development rights in or to any Callyo Materials or other intellectual property, and Customer agrees to execute any documents and take any other actions reasonably requested by Callyo to effectuate the foregoing. Callyo and its licensors reserve all rights not expressly granted to Customer, and no rights, other than those expressly granted herein, are granted to Customer by implication, estoppel or otherwise. Customer will not modify, disassemble, reverse engineer, derive source code or create derivative works from, merge with other software, distribute, sublicense, sell, or export the Software and Services or other Callyo Materials, or permit any third party to do so.
10.3. Subscription Software License. Subject to Customer’s and its Authorized Users’ compliance with the Agreement (including payment terms), Callyo hereby grants Customer and its Authorized Users a limited, non-transferable, non-sublicenseable, and non-exclusive license to use the Subscription Software identified in an Ordering Document, and the associated Documentation, solely for Customer’s internal business purposes. The foregoing license grant will be limited to use in the territory and to the number of licenses set forth in an Ordering Document (if applicable), and will continue for the applicable Subscription Term. Customer may access, and use the Subscription Software only in Customer’s owned or controlled facilities, including any authorized mobile sites; provided, however, that Authorized Users using authorized mobile or handheld devices may also log into and access the Subscription Software remotely from any location. No custom development work will be performed under this Agreement.
10.4. End User Licenses. Notwithstanding any provision to the contrary in the Agreement, certain Subscription Software is governed by a separate license, EULA, or other agreement, including terms governing third-party software, such as open source software, included in the Subscription Software. Customer will comply, and ensure its Authorized Users comply, with such additional license agreements.
10.5. Customer Restrictions. Customers and Authorized Users will comply with the applicable Documentation and the copyright laws of the United States and all other relevant jurisdictions (including the copyright laws where Customer uses the Subscription Software) in connection with their use of the Subscription Software. Customer will not, and will not allow others, including the Authorized Users, to make the Subscription Software available for use by unauthorized third parties, including via a commercial rental or sharing arrangement; reverse engineer, disassemble, or reprogram software used to provide the Subscription Software or any portion thereof to a human-readable form; modify, create derivative works of, or merge the Subscription Software or software used to provide the Subscription Software with other software; copy, reproduce, distribute, lend, or lease the Subscription Software, software used to provide the Subscription Software, or Documentation for or to any third party; take any action that would cause the Subscription Software or Documentation to be placed in the public domain; use the Subscription Software to compete with Callyo; remove, alter, or obscure, any copyright or other notice; share user credentials (including among Authorized Users); use the Subscription Software to store or transmit malicious code; or attempt to gain unauthorized access to the Subscription Software or its related systems or networks.
10.6. Ownership of Customer Data. Customer retains all right, title and interest, including intellectual property rights, if any, in and to Customer Data. Callyo acquires no rights to Customer Data except those rights granted under this Agreement including the right to Process and use the Customer Data as set forth in Section 10.7 – Processing Customer Data below and in other applicable Addenda. The Parties agree that with regard to the Processing of personal information which may be part of Customer Data, Customer is the controller and Callyo is the processor, and may engage sub-processors pursuant to Section 10.7.3 – Sub-processors.
10.7. Processing Customer Data.
10.7.1. Callyo Use of Customer Data. To the extent permitted by law, Customer grants Callyo and its subcontractors a right to use Customer Data and a royalty-free, worldwide, non-exclusive license to use Customer Data (including to process, host, cache, store, reproduce, copy, modify, combine, analyze, create derivative works from such Customer Data and to communicate, transmit, and distribute such Customer Data to third parties engaged by Callyo) to (a) perform Services and provide the Subscription Software under the Agreement, (b) analyze the Customer Data to operate, maintain, manage, and improve Callyo products and services, and (c) create new products and services. Customer agrees that this Agreement, along with the Documentation, are Customer’s complete and final documented instructions to Callyo for the processing of Customer Data. Any additional or alternate instructions must be agreed to according to the Change Order process. Customer represents and warrants to Callyo that Customer’s instructions, including appointment of Callyo as a processor or sub-processor, have been authorized by the relevant controller.
10.7.2. Collection, Creation, Use of Customer Data. Customer further represents and warrants that the Customer Data, Customer’s collection, creation, and use of the Customer Data (including in connection with Callyo’s Software and Services), and Callyo’s use of such Customer Data in accordance with the Agreement, will not violate any laws or applicable privacy notices or infringe any third-party rights (including intellectual property and privacy rights). Customer also represents and warrants that the Customer Data will be accurate and complete, and that Customer has obtained all required consents, provided all necessary notices, and met any other applicable legal requirements with respect to collection and use (including Callyo’s and its subcontractors’ use) of the Customer Data as described in the Agreement.
10.7.3. Sub-processors. Customer agrees that Callyo may engage sub-processors who in turn may engage additional sub-processors to Process personal data in accordance with this Agreement. When engaging sub-processors, Callyo will enter into agreements with the sub-processors to bind them to data processing obligations to the extent required by law.
10.8. Data Retention and Deletion. Except for anonymized Customer Data, as described above, or as otherwise provided under the Agreement, Callyo will delete all Customer Data following termination or expiration of this Subscription Software Agreement or the applicable Addendum or Ordering Document, with such deletion to occur no later than ninety (90) days following the applicable date of termination or expiration, unless otherwise required to comply with applicable law. Any requests for the exportation or download of Customer Data must be made by Customer to Callyo in writing before expiration or termination, subject to Section 14.9 – Notices. Callyo will have no obligation to retain such Customer Data beyond expiration or termination unless the Customer has purchased extended storage from Callyo through a mutually executed Ordering Document.
10.9. Service Use Data. Customer understands and agrees that Callyo may collect and use Service Use Data for its own purposes, including the uses described below. Callyo may use Service Use Data to (a) operate, maintain, manage, and improve existing and create new products and services, (b) test products and services, (c) to aggregate Service Use Data and combine it with that of other users, and (d) to use anonymized or aggregated data for marketing, research or other business purposes. Service Use Data may be disclosed to third parties. It is Customer’s responsibility to notify Authorized Users of Callyo’s collection and use of Service Use Data and to obtain any required consents, provide all necessary notices, and meet any other applicable legal requirements with respect to such collection and use, and Customer represents and warrants to Callyo that it has complied and will continue to comply with this Section.
10.10. Third-Party Data and Callyo Data. Callyo Data and Third-Party Data may be available to Customer through the Software and Services. Customer and its Authorized Users may use Callyo Data and Third-Party Data as permitted by Callyo and the applicable Third-Party Data provider, as described in the applicable Addendum. Unless expressly permitted in the applicable Addendum, Customer will not, and will ensure its Authorized Users will not: (a) use the Callyo Data or Third-Party Data for any purpose other than Customer’s internal business purposes; (b) disclose the data to third parties; (c) “white label” such data or otherwise misrepresent its source or ownership, or resell, distribute, sublicense, or commercially exploit the data in any manner; (d) use such data in violation of applicable laws; (e) remove, obscure, alter, or falsify any marks or proprietary rights notices indicating the source, origin, or ownership of the data; or (f) modify such data or combine it with Customer Data or other data or use the data to build databases. Additional restrictions may be set forth in the applicable Addendum. Any rights granted to Customer or Authorized Users with respect to Callyo Data or Third-Party Data will immediately terminate upon termination or expiration of the applicable Addendum, Ordering Document, or this Subscription Software Agreement. Further, Callyo or the applicable Third-Party Data provider may suspend, change, or terminate Customer’s or any Authorized User’s access to Callyo Data or Third-Party Data if Callyo or such Third-Party Data provider believes Customer’s or the Authorized User’s use of the data violates the Agreement, applicable law or Callyo’s agreement with the applicable Third-Party Data provider. Upon termination of Customer’s rights to use any Callyo Data or Third-Party Data, Customer and all Authorized Users will immediately discontinue use of such data, delete all copies of such data, and certify such deletion to Callyo. Notwithstanding any provision of the Agreement to the contrary, Callyo will have no liability for Third-Party Data or Callyo Data available through the Software and Services. Callyo and its Third-Party Data providers reserve all rights in and to Callyo Data and Third-Party Data not expressly granted in an Addendum or Ordering Document.
10.11. Feedback. Any Feedback provided by Customer is entirely voluntary, and will not create any confidentiality obligation for Callyo, even if designated as confidential by Customer. Callyo may use, reproduce, license, and otherwise distribute and exploit the Feedback without any obligation or payment to Customer or Authorized Users and Customer represents and warrants that it has obtained all necessary rights and consents to grant Callyo the foregoing rights.
10.12. Improvements; Software and Services. The Parties agree that, notwithstanding any provision of this Subscription Software Agreement or the Agreement to the contrary, all fixes, modifications and improvements to the services or products conceived of or made by or on behalf of Callyo that are based either in whole or in part on the Feedback, Customer Data, or Service Use Data (or otherwise) are the exclusive property of Callyo and all right, title and interest in and to such fixes, modifications or improvements will vest solely in Callyo. Customer agrees to execute any written documents necessary to assign any intellectual property or other rights it may have in such fixes, modifications or improvements to Callyo.
11. Callyo as a Controller or Joint Controller. In all instances where Callyo acts as a controller of data, it will comply with the applicable provisions of the Motorola Privacy Statement at https://www.motorolasolutions.com/en_us/about/privacy-policy.html#privacystatement, as may be updated from time to time. Callyo holds all Customer Contact Data as a controller and shall Process such Customer Contact Data in accordance with the Motorola Privacy Statement. In instances where Callyo is acting as a joint controller with Customer, the Parties will enter into a separate Addendum to the Agreement to allocate the respective roles as joint controllers.
12. Force Majeure; Delays Caused by Customer.
12.1. Force Majeure. Except for Customer’s payment obligations hereunder, neither Party will be responsible for nonperformance or delayed performance due to events outside of its reasonable control. If performance will be significantly delayed, the affected Party will provide notice to the other Party, and the Parties will agree (in writing) upon a reasonable extension to any applicable performance schedule.
12.2. Delays Caused by Customer. Callyo’s performance of the Software and Services will be excused for delays caused by Customer or its Authorized Users or subcontractors, or by failure of any assumptions set forth in this Agreement (including in any Addendum or Ordering Document). In the event of a delay under this Section 12.2 – Delays Caused by Customer, (a) Customer will continue to pay the Fees as required hereunder, (b) the Parties will agree (in writing) upon a reasonable extension to any applicable performance schedule, and (c) Customer will compensate Callyo for its out-of-pocket costs incurred due to the delay (including those incurred by Callyo’s affiliates, vendors, and subcontractors).
13. Disputes. The Parties will use the following procedure to resolve any disputes relating to or arising out of this Agreement (each, a “Dispute”):
13.1. Governing Law. All matters relating to or arising out of the Agreement are governed by the laws of the State of Illinois, unless Customer is the United States Government (or an agency thereof), in which case all matters relating to or arising out of the Agreement will be governed by the laws of the State in which the Software and Services are provided. The terms of the U.N. Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply.
13.2. Negotiation; Mediation. Either Party may initiate dispute resolution procedures by sending a notice of Dispute (“Notice of Dispute”) to the other Party. The Parties will attempt to resolve the Dispute promptly through good faith negotiations, including timely escalation of the Dispute to executives who have authority to settle the Dispute (and who are at a higher level of management than the persons with direct responsibility for the matter). If a Dispute is not resolved through negotiation, either Party may initiate mediation by sending a notice of mediation (“Notice of Mediation”) to the other Party. The Parties will choose an independent mediator within thirty (30) days of such Notice of Mediation. Neither Party may unreasonably withhold consent to the selection of a mediator, but if the Parties are unable to agree upon a mediator, either Party may request that the American Arbitration Association nominate a mediator. Each Party will bear its own costs of mediation, but the Parties will share the cost of the mediator equally. Each Party will participate in the mediation in good faith and will be represented at the mediation by a business executive with authority to settle the Dispute. All in person meetings under this Section 13.2 – Negotiation; Mediation will take place in Chicago, Illinois, and all communication relating to the Dispute resolution will be maintained in strict confidence by the Parties. Notwithstanding the foregoing, any Dispute arising from or relating to Callyo’s intellectual property rights will not be subject to negotiation or mediation in accordance with this Section, but instead will be decided by a court of competent jurisdiction, in accordance with Section 13.3 – Litigation, Venue, Jurisdiction below.
13.3. Litigation, Venue, Jurisdiction. If the Dispute has not been resolved by mediation within sixty (60) days from the Notice of Mediation, either Party may submit the Dispute exclusively to a court in Cook County, Illinois. Each Party expressly consents to the exclusive jurisdiction of such courts for resolution of any Dispute and to enforce the outcome of any mediation.
14.1. Compliance with Laws. Each Party will comply with applicable laws in connection with the performance of its obligations under this Agreement, including that Customer will ensure its and its Authorized Users’ use of the Software and Services complies with law (including privacy laws), and Customer will obtain any FCC and other licenses or authorizations (including licenses or authorizations required by foreign regulatory bodies) required for its and its Authorized Users’ use of the Software and Services. Callyo may, at its discretion, cease providing or otherwise modify Software and Services (or any terms related thereto in an Addendum or Ordering Document), in order to comply with any changes in applicable law.
14.2. Audit; Monitoring. Callyo will have the right to monitor and audit use of the Subscription Software, which may also include access by Callyo to Customer Data and Service Use Data. Customer will provide notice of such monitoring to its Authorized Users and obtain any required consents, including individual end users, and will cooperate with Callyo in any monitoring or audit. Customer will maintain during the Term, and for two (2) years thereafter, accurate records relating to the Subscription Software licenses granted under this Agreement to verify compliance with this Agreement. Callyo or a third party (“Auditor”) may inspect Customer’s and, as applicable, Authorized Users’ premises, books, and records. Callyo will pay expenses and costs of the Auditor, unless Customer is found to be in violation of the terms of the Agreement, in which case Customer will be responsible for such expenses and costs.
14.3. Assignment and Subcontracting. Neither Party may assign or otherwise transfer this Agreement without the prior written approval of the other Party. Callyo may assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement without consent (a) for financing purposes, (b) in connection with a merger, acquisition or sale of all or substantially all of its assets, (c) as part of a corporate reorganization, or (d) to a subsidiary corporation. Subject to the foregoing, this Agreement will be binding upon the Parties and their respective successors and assigns.
14.4. Waiver. A delay or omission by either Party to exercise any right under this Agreement will not be construed to be a waiver of such right. A waiver by either Party of any of the obligations to be performed by the other, or any breach thereof, will not be construed to be a waiver of any succeeding breach or of any other obligation. All waivers must be in writing and signed by the Party waiving its rights.
14.5. Severability. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, such provision will be deemed to be modified to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remaining provisions of this Agreement will not be affected, and each such provision will be valid and enforceable to the full extent permitted by applicable law.
14.6. Independent Contractors. Each Party will perform its duties under this Agreement as an independent contractor. The Parties and their personnel will not be considered to be employees or agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or be interpreted as a joint venture, partnership, or formal business organization of any kind.
14.7. Third-Party Beneficiaries. The Agreement is entered into solely between, and may be enforced only by, the Parties. Each Party intends that the Agreement will not benefit, or create any right or cause of action in or on behalf of, any entity other than the Parties. Notwithstanding the foregoing, a licensor or supplier of third-party software included in the Subscription Software will be a direct and intended third-party beneficiary of this Agreement.
14.8. Interpretation. The section headings in this Agreement are included only for convenience The words “including” and “include” will be deemed to be followed by the phrase “without limitation”. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either Party.
14.9. Notices. Notices required under this Agreement to be given by one Party to the other must be in writing and either personally delivered or sent to the address provided by the other Party by certified mail, return receipt requested and postage prepaid (or by a recognized courier service, such as FedEx, UPS, or DHL), and will be effective upon receipt.
14.10. Cumulative Remedies. Except as specifically stated in this Agreement, all remedies provided for in this Agreement will be cumulative and in addition to, and not in lieu of, any other remedies available to either Party at law, in equity, by contract, or otherwise. Except as specifically stated in this Agreement, the election by a Party of any remedy provided for in this Agreement or otherwise available to such Party will not preclude such Party from pursuing any other remedies available to such Party at law, in equity, by contract, or otherwise.
14.11. Survival. The following provisions will survive the expiration or termination of this Agreement for any reason: Section 2.5 – Customer Obligations; Section 3 – Term and Termination; Section 4 – Payment and Invoicing; Section 6.2 – Warranty Disclaimer; Section 7.2 – Customer Indemnity; Section 8 – Limitation of Liability; Section 9 – Confidentiality; Section 10 – Proprietary Rights and Subscription Software License; Data; Feedback; Section 12 – Force Majeure; Delays Caused by Customer; Section 13 – Disputes; and Section 14 – General.
14.12. Entire Agreement. This Agreement, including all Addenda and Ordering Documents, constitutes the entire agreement of the Parties regarding the subject matter hereto, and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement may be executed in multiple counterparts, and will have the same legal force and effect as if the Parties had executed it as a single document. The Parties may sign in writing or by electronic signature. An electronic signature, facsimile copy, or computer image of a signature, will be treated, and will have the same effect as an original signature, and will have the same effect, as an original signed copy of this document. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both Parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment, or other form will not be considered an amendment or modification or part of this Agreement, even if a representative of each Party signs such document.
The following additional terms will apply to the Subscription Software Agreement (“Agreement”) for Callyo’s CAPE solution (“CAPE”). If any term in this Addendum conflicts with a term in the main body of the Agreement, this Addendum will govern.
1. DRONE SOFTWARE AND SERVICES
1.1 CAPE is a cloud platform for unmanned aerial vehicles (“Drones” or “Drone Hardware”) that provides the ability for Authorized Users to remotely operate a flying Drone camera in real-time. The CAPE platform combines flight control and real time video streaming on Drones.
1.2 Access to CAPE is offered on an annual subscription basis, priced according to the tier of the CAPE solution to be deployed. Pricing is provided in the applicable Ordering Document.
1.3 Limitations. Customer may access and use CAPE solely for its own benefit and in accordance with the terms of this Addendum and the Agreement.
Customer will provide email addresses for users who need access to Software and Services. Callyo will establish user accounts and provide access to Software and Services for Authorized Users defined by Customer. Callyo will provide initial Software and Services setup and initial training to specified customer pilots on the usage of the solution.
Customer is responsible for all Drone Hardware, Drone operations, operating policies and procedures, internet connectivity and all IT equipment and infrastructure. Customer is also responsible for providing Drone pilots and ensuring all such pilots have appropriate Federal Aviation Administration (“FAA”) authorizations for all Drone operations. Customer is responsible for also obtaining any FAA Certificate of Authorizations (“CoA”) and regulatory approvals and waivers needed to ensure safe and FAA compliant Drone operations. Customer is responsible for selecting Drone pilots capable of operating Drone Hardware. Callyo will solely provide access to Software and Services that supplements Customer’s Drone operations.
3. ACCESSING THE SERVICES
3.1 Account Authorization. Callyo will establish the customer account (“Account”) and provide Customer with an administrative portal. Customer may access the Software and Services and administer permissions, including establishing Authorized Users authorized to access its Account. Access information for the Customer Account is its internal use only. Customer agrees not sell, transfer or sublicense the access information to any other entity or person, except that Customer may enable access by its agents and subcontractors performing work on its behalf. Customer is responsible for the security of its passwords, use of its Account and for all activities that occur under its Account. Callyo, its affiliates and suppliers specifically disclaim any and all responsibility for unauthorized access to Customer Account. Customer agrees to diligently monitor its Account, to restrict use by unauthorized persons. Customer accepts full responsibility for any unauthorized use of the Services. Customer shall notify Callyo immediately of any unauthorized use of its password(s) or any other breach of security.
3.2 Necessary Equipment and Software: The Software and Services is a cloud service provided over the internet. Customer must provide all equipment and software necessary to connect to the Software and Services. Customer is solely responsible for any fees, including Internet connection or mobile fees, that incur when accessing the Software and Services and transferring data.
3.3. Security, Availability and Backup: Callyo will implement reasonable and appropriate measures designed to help Customer secure content and data against accidental or unlawful loss, access or disclosure. Callyo procures cloud hosting services from reputable third party vendors (such as AWS and Google) and has no control over the methods they use for security and integrity of data on their servers. Callyo will use reasonable efforts to coordinate platform maintenance activities with such providers but is not responsible for service interruptions or breach or other loss of data caused due to such third party providers. Customer is responsible for properly configuring and using the Software and Subscription Service and otherwise taking appropriate action to secure, protect and backup accounts and content in a manner that will provide appropriate security and protection, which might include use of encryption to protect content and routinely archiving content and data. Callyo does not provide an archiving service and only agrees that it will not intentionally delete any content or data prior to termination of this Addendum. Callyo expressly disclaims all other obligations with respect to storage. Callyo may reserve the right to delete any data stored in the system, such as video or pictures that are over 30 calendar days old.
4. DATA STORAGE
The Software and Services is not intended to be used as a video storage solution. Callyo does not provide an archiving service for Drone photo and video data, flight information, or any other information. Callyo expressly disclaims any and all obligations with respect to storage. Callyo reserves the right to delete any data stored in the solution, such as video or pictures that are over thirty (30) calendar days old.
5. DATA RETRIEVAL
Callyo will leverage different types of storage to optimize the Software and Services, as determined by Callyo’s sole discretion. For multimedia data, such as videos, pictures, audio files, Callyo will, in its sole discretion, determine the type of storage medium used to store the content. The type of storage and medium selected by Callyo will determine the data retrieval speed.
Callyo will periodically perform maintenance of the Software and Services. Users may experience an interruption in service during such maintenance efforts.
7. NETWORK / INTERNET / OTHER REQUIREMENTS
7.1 The Software and Services requires the availability of appropriate network and internet connections. If any of the below items apply, additional deployment services may be needed to enable a successful deployment. Such additional deployment services will be provided for an additional fee.
· Customer's internet is through private IT strict firewall policies, not able to install software on PC's
· Customer requires multiple upload locations through different internet providers at each site
· Customer has slow internet (<20MBps or higher for 4k video upload)
· Customer doesn't have Wi-Fi
· Customer doesn't use Google Chrome or uses conflicting Google Chrome extensions
· Customer requires multiple upload locations
· Customer has multicast disabled on their wireless network
· Customer wants to utilize MAC address filtering
7.2 The following are not supported:
· Wi-Fi AP's do not support 802.11AC
· Customer AP does not support DNS-SD, and/or the Apple Bonjour suite
8.1 Termination of Software and Services by Callyo. Callyo has the right to suspend or terminate use of the Software and Services at any time if it determines in its sole discretion that Customer or its Users are in violation of the terms of this Addendum or if necessary to avoid a violation of applicable law. Callyo will use reasonable efforts to notify Customer of its determination. In suspending or terminating the Software and Services, Callyo reserves and does not waive any rights or remedies available to it under this Addendum or at law. Callyo shall not be liable to Customer or any third-party for any termination of Customer Account.
8.2 Termination of Software and Services by Customer. Customer may terminate the Agreement at any time by (a) notifying Callyo and (b) closing your Account. Your notice should be sent, in writing, to the following Callyo address: Attn: Callyo 2009 Corp., 200 2nd Ave S., #143, St. Petersburg, FL 33701.
8.3 Effect of Termination. Termination by Customer for convenience during a subscription term does not entitle Customer to a refund of fees. Upon termination of the Software and Services, Customer will be prevented from further access and use of the portal and passwords, files, and all information associated with or inside the Account will be deleted.
9. REMEDIES FOR VIOLATIONS
If Callyo becomes aware of any possible violations of this Addendum, Callyo reserves the right to investigate such violations. If, as a result of the investigation, Callyo believes that unlawful activity has occurred, Callyo reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Callyo is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Software and Services to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Agreement; (3) respond to requests for customer assistance; (4) protect the rights, property or personal safety of Callyo, its employees, subcontractors, agents, or the public, or (5) in connection with all enforcement actions or to government officials, as Callyo in its sole discretion believes to be necessary or appropriate.
10. DRONE OPERATION INDEMNITY
To the extent permitted by applicable law, Customer shall defend, indemnify and hold harmless Callyo from all liability, expense, judgment, suit, or cause of action, which may accrue against Callyo for damages arising from or related to personal injury, property damage or loss of life caused by Customer’s Drone Hardware during Customer’s Drone operations.
11. DJI’S DATA COLLECTON TERMS AND CONDTIONS
If Customer has requested the interface of CAPE with DJI’s Drones, Customer agrees to DJI’s Software Development Kit (“SDK”) data collection terms and conditions provided below:
11.3 For sake of clarity and not by way of limitation, the Analytics Data and Warranty Logs information may be used by DJI for any lawful purposes, including without limitation for use in research or improving its SDK or products and determining warranty eligibility and product reliability. The Warranty Logs are stored locally on a device running the Application (e.g., mobile device) and Customer hereby consents to make the Warranty Logs available to DJI to support any warranty claims regarding the SDK.
11.4 Customer represents and warrants that it will provide clear and conspicuous notice to each User and obtain any legally required consents for DJI to collect, use, or otherwise process information as set forth in this Section.
11.5 CALLYO DISCLAIMS ANY LIABILITY FOR DJI’S COLLECTION, USE, TRANSFER, AND ANY OTHER PROCESSING OF CUSTOMER’S INFORMATION. CUSTOMER ACKNOWLEDGES AND AGREES THAT CALLYO DOES NOT HAVE CONTROL AND SHALL HAVE NO LIABILITY REGARDING THE INFORMATION THAT MAY BE COLLECTED BY DJI’S SDK AND HOW SUCH DATA MAY BE USED BY DJI AND/OR THIRD PARTIES RECEIVING SUCH INFORMATION FROM DJI. CUSTOMER WILL INDEMNIFY AND HOLD CALLYO HARMLESS FOR CUSTOMER’S FAILURE TO PROVIDE NOTICE AND OBTAIN THE NECESSARY CONSENTS AS PROVIDED IN THIS SECTION.