ONLINE PORTAL TERMS AND CONDITIONS
Last updated: June 12, 2019
THESE ONLINE PORTAL TERMS AND CONDITIONS (THIS "AGREEMENT") GOVERN YOUR USE OF THE SERVICES (AS DEFINED BELOW) MADE AVAILABLE TO YOU UNDER THIS AGREEMENT. THIS AGREEMENT IS A BINDING LEGAL CONTRACT BETWEEN THE ENTITY ON WHOSE BEHALF YOU ENTER INTO THIS AGREEMENT ("YOU" AND "YOUR) AND FLIR INTELLIGENT TRANSPORTATION SYSTEMS BVBA ("FLIR" "WE," OR "US").
Capitalized terms herein used which are not herein defined shall have the respective meanings ascribed to them in Section 21.
a. Pursuant to the Order, FLIR provides intelligent transportation and congestion management systems which include certain features and functionalities (the "Services") that are available through an online portal accessed over the Internet at de.acyclica.com (the "Portal"). During the term, FLIR will make the newest version of the Portal (including any changes, modifications and enhancements available to the Customer), provided such modification of the Services can reasonably be expected to be acceptable for you taking your interests into account. FLIR will reasonably notify you of any change to the Services prior to the date of such change.
b. The Portal is delivered by FLIR at the interface between the data centre, where the Portal is hosted and the Internet ("Handover Point"). Customer is solely responsible for obtaining, at its cost and expense, Internet connectivity from the Handover Point and the necessary hardware and software to access and use the Services and to allow the Portal Equipment Internet connectivity.
PERMISSION TO USE.
Subject to Customer's continued compliance with the terms of this Agreement, FLIR hereby grants to Customer a non-exclusive, revocable, non-sublicensable, non-transferable subscription for Customer's Users' access and use of the Services, in accordance with the Documentation and solely for Customer's internal business purposes in association with Portal Equipment. FLIR and its licensors reserve all rights not expressly granted to Customer in this Agreement.
b. Subject to the terms and conditions of this Agreement, FLIR grants Customer a nonexclusive, revocable, non-sublicensable, non-transferable right to use the API, and the API Key that may be generated, activated and provided to Customer by FLIR, solely to access the API, in all cases, solely (a) for Customer's internal business purposes of interacting with Portal Equipment, and (b) solely in accordance with any applicable FLIR documentation. The API is FLIR's Confidential Information (defined below). Customer shall not share or disclose the API to any third party. Customer shall use their own designated API Key for all calls to the API made by Customer.
LICENSE RESTRICTIONS AND LIMITATION OF USE.
Except as expressly permitted under this Agreement, Customer shall not, and shall not assist or encourage any third party to, (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party access to or use of the Services or API in any way; (ii) interfere with or disrupt the integrity or performance of the Services or API in any manner; (iii) attempt to gain unauthorized access to the Services or its related systems or networks; (iv) remove, alter, or obscure any proprietary notices (including copyright notices) of FLIR or its licensors contained within the Documentation or displayed in connection with the Services (including API); (v) modify or make derivative works based upon the Services or API; (vi) itself, or permit others, to duplicate, copy, translate, disassemble, decompile, reverse engineer or remanufacture the API or software associated with the Services in whole or in part or otherwise attempt to derive the source code of either of the foregoing; (vii) reverse engineer or access the Services or API in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services; (viii) otherwise use the Services or the API except as expressly allowed under this Agreement, (ix) use the Services to store or transmit any Customer Data that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware, (x) jeopardize the security of your user account or anyone else's user account (such as allowing someone else to log in to the Services as you), (xi) interfere with the proper working of the Services (including by placing an unreasonable load on the Services infrastructure), (xii) work around any technical or security restrictions or limitations in the Services, or (xiii) use any Internet-based features in any way that could interfere with others' use of them or to try to gain access to or use any service, data, account, or network in an unauthorized manner. Customer shall not allow access to the Services by anyone other than a User, and if Customer desires to allow access to the Services by anyone other than an employee, Customer shall request access from FLIR.
You will only permit the maximum number of Users identified on the Order, if any, to utilize a user name and password ("Account Information"). You will ensure the security and confidentiality of the Account Information utilized by your Users, and you are responsible for all activities performed in the Services with the Account Information of your Users. To use the Services, the Users must register for a user account using the user name and password and providing accurate and complete registration information. You will ensure that the Users do not permit any other person to use their account and Account Information. By creating an account, you represent and warrant that you are an authorized User. If you are an employer, you will ensure that all of your authorized Users comply with the terms of this Agreement, and you will be jointly and severally liable for all actions of Users related to their access or use of the Services, and any failure by such Users to comply with the terms of this Agreement will constitute a breach by Customer; further, you will promptly notify FLIR if you discover any possible misuse, loss, or disclosure of your Users' Account Information and you will ensure that all authorized Users will promptly notify FLIR accordingly. FLIR reserves the right to restrict who is eligible for an user account.
AVAILABILITY SERVICE LEVEL & SUPPORT.
a. Unless a different Services availability level is set forth in the Order or addendum hereto, FLIR aims to achieve an uptime of 99.5% per calendar year. The calculation of the uptime will not include any unavailability of Trial Services (as defined below) and unavailability due to (i) system maintenance and planned downtime (of which FLIR shall use reasonable efforts to give prior notice) and (ii) any unavailability caused by: (a) your software or hardware or Third Party Software (as defined below) or hardware; (b) any circumstances, which arise beyond the Handover Point , including but not limited to internet service provider and mobile carrier service availability; and (c) misuse of the Services or other violations of this Agreement by you.
b. Subject to and in accordance with the Support SLA attached as Exhibit A, during the Term FLIR shall maintain and support the FLIR Services.
UPDATES; AVAILABILITY OF FEATURES AND FUNCTIONS.
a. During the term, FLIR will make the newest version of the Services, or any portion of its features and functions (including any modification, deprecation or upgrade) available to the Customer, provided such modification of the Services can reasonably be expected to be acceptable for you taking your interests into account. FLIR will reasonably notify you of any change to the Services prior to the date of such change. Unless otherwise expressly and separately agreed to by FLIR, any modification of the Services will be subject to the terms of this Agreement. If you establish that a change made by FLIR pursuant to this Section has a materially adverse effect on your authorized use of the Services, you may notify FLIR in writing, and we may propose resolutions or work-arounds. If FLIR is unable to provide you with a resolution or work-around reasonably satisfactory to you, then notwithstanding anything to the contrary, you may terminate this Agreement upon written notice to FLIR.
b. FLIR may change, discontinue, or deprecate any APIs utilized for the Services, if any, from time to time but will continue supporting the previous version of any API changed, discontinued, or deprecated for twelve (12) months after the change, discontinuation, or deprecation unless supporting the previous version: (a) would pose a security or intellectual property issue; (b) is economically or technically burdensome; or (c) is rendered impossible or impractical as a result of a requirement of law or request from governmental entities.
c. This Agreement does not give you any right to use a newer version, new functions or new features of the Services. Such newer version, new function or new feature may be available to you only upon payment of additional fees. Certain features and functions of the Services may be made available based on specific configuration of products and may not be available to you without payment of additional fees.
The Services may require the installation of software (the "Software") to function (e.g., software embedded in our equipment at your location or on your equipment or systems). Software provided to you as part of the Services is provided under the end user license agreement included with such Software, provided that in either instance your use of the Software shall be solely for the purpose of enabling you to use and enjoy the benefit of the Services as permitted under this Agreement. The Software may periodically check for updates, which may become necessary to (a) prevent a security or intellectual property issue; or (b) comply with a requirement of law or request from governmental entities. These updates will be automatically installed on your equipment or systems without providing any additional notice or requiring any additional consent from you.
From time to time, we may offer you access to certain Services, and certain pre-release versions, features and functions of the Services, to you on a beta, trial, or evaluation basis (the "Trial Services"). Trial Services are provided to you free of charge, except as otherwise specified by us or as otherwise specified in your Order, and may only be used for your own internal testing and evaluation of such Trial Services. The Trial Services are not an official product of FLIR and have not been commercially released, may contain defects or other problems; and may not be fully functional. We may limit, suspend, or terminate your access to any portion of the Trial Services for any reason in our sole discretion. All restrictions, limitations, and obligations related to your access to and use of the Services set forth in this Agreement shall apply to your access and use of the Trial Services. The Trial Services are not the final version of the services and not intended for general commercial publication or use. Therefore, the parties agree that the Trial Services are subject to change without notice and the services may differ substantially upon commercial release. The Parties agree that the Trial Services may contain defects and are made available for the purpose of identifying such defects. In line with this purpose, the Trial Services are made available to you without any warranty. If you report a defect FLIR is not obliged to correct it. FLIR's liability shall be limited to intent and gross negligence; any liability under the German Product Liability Act shall remain unaffected.
THIRD PARTY SOFTWARE, PRODUCTS AND SERVICES.
To the extent any software licensed from third parties ("Third Party Software") is provided with or incorporated into the Services, you will comply with, and agree to be bound to, the terms and conditions of the applicable third party licenses associated with the Third Party Software, in addition to the terms and restrictions contained in this Agreement. All relevant licenses for the Third Party Software are provided within the Services or Software. The applicable third party terms and conditions are available at https://flir.acyclica.com/licenses.
DATA AND DATA PROTECTION.
a. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. As between Customer and FLIR, Customer owns all right, title and interest in and to the Customer Data. Customer grant to FLIR and its affiliates a non-exclusive, worldwide, sublicensable, perpetual, paid-up right and license to use the Customer Data to provide, maintain, protect, and improve the Services and to improve and develop FLIR products and services. Customer will secure and maintain all legally required consents and rights and have provided all legally required notices to provide the Customer Data to FLIR. Customer is solely responsible for all Customer Data including the creation or maintaining of backups and copies of all Customer Data and the accuracy, integrity, quality, legality, and appropriateness of the Customer Data.
b. The Customer will ensure Customer Data is sufficiently backed up. The Services provides Customer with controls and options that Customer may use to retrieve or delete Customer Data. FLIR shall not be responsible for the retrieval and deletion of Customer Data. In the event this Agreement is terminated, FLIR will make available to Customer a file of the Customer Data if requested by Customer within thirty (30) days of termination. FLIR will delete all Customer Data upon expiration of thirty (30) days as of its termination. If the agreement is terminated for cause by reason of a material breach, including any failure to pay outstanding fees, which has not been cured within ten (10) days as of notice of such breach, FLIR will delete all Customer Data immediately upon termination. Upon termination for cause resulting from an uncured breach, Customer's right to access or use Customer Data shall immediately cease, and FLIR shall have no obligation to maintain or forward any Customer Data.
c. In addition to any other restrictions set forth herein, Customer will not provide, post or transmit any Customer Data that infringe or violate any Intellectual Property Rights, publicity/privacy rights, law or regulation. FLIR may take remedial action, including immediate suspension of Customer's access to the Services, if Customer's configuration of the Services or Customer Data violates Section 10.
d. FLIR may use Congestion Data for internal business purpose.
e. Notwithstanding the other terms of this Section, FLIR may use or disclose Customer Data as FLIR believes in good faith to be necessary or appropriate: (i) under applicable law, including laws outside Customer's country of residence; (ii) to comply with legal process; (iii) to respond to lawful requests from public or government authorities; and (iv) to enforce this Agreement or allow FLIR to pursue available remedies or limit the damages that FLIR may sustain.
f. FLIR will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Where Customer's use of Services includes the processing of Personal Data (as defined in the data processing agreement at https://www.de.acyclica.com.com/dpa "DPA"), FLIR will process personal data, which the Customer provides to FLIR as part of the Customer Data, on behalf of the Customer and in accordance with the DPA agreed between the Customer or the entity on whose behalf you enter into the agreement, as applicable. The terms of the DPA are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, provided that Customer sends to firstname.lastname@example.org a copy of the DPA signed by Customer in accordance with the instructions therein. The DPA shall apply from the date that FLIR commences processing Personal Data on the Customer's behalf. Customer Data may be transferred to or stored and/or processed in the United States or other countries in which FLIR or FLIR's affiliates or subcontractors operate, provided that a transfer of Customer Data to a state which is not a member state of the EEA shall only occur if the specific conditions of Articles 44 et seq. GDPR have been fulfilled. For the purposes of the Standard Contractual Clauses, Customer and its applicable affiliates are each the data exporter, and Customer's acceptance of this Agreement, and an applicable affiliate's execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices. FLIR will process Customer Data in accordance with the requirements of this Agreement and applicable law regardless of where FLIR store or process the Customer Data.
FEES AND PAYMENT TERMS.
You will pay FLIR (or its distributor or reseller) all fees identified on or referenced in the Order(s) ("Fees") within thirty (30) days of the invoice date, unless a different period is specified in the applicable Order, and payments not made within such time period shall be subject to late charges equal to 9 percentage points above the basic rate of interest. The Fees are subject to VAT and all other taxes, duties, fees and other governmental charges, the Customer is obliged to pay.
In addition to any other rights granted to FLIR under applicable law and/or this Agreement, FLIR may suspend your access to or use of the Services, in whole or in part, immediately without notice to you, if FLIR determines that: (a) you are in breach of this Agreement with respect to any material term or condition, allowing FLIR to terminate this Agreement for cause with immediate effect ; (b) amounts, which equal at least one full monthly payment and owed by you remain past due; (c) it is reasonably necessary to prevent unauthorized access to the Services; or (d) you or your authorized Users' access or use of the Services: (i) poses a security risk to the Services or any third party; (ii) may adversely impact the Services or the systems related thereto; (iii) may subject us or a third party to any liability; or (iv) may be fraudulent or prohibited by applicable law, rule, or regulation. You will remain responsible for all Fees for the use of the portions of the Services not suspended.
TERM AND TERMINATION.
a. The term of this Agreement shall commence on the date set forth in the Order and shall continue for the duration set forth in the applicable Order ("Initial Term"). The term shall renew for additional one year terms ("Additional Term") unless terminated by either party at the end of the Initial Term or the respective Additional Period in line with the following provisions.
b. Either party may terminate this Agreement upon written notice if the other party (a) is in default with respect to any material term or condition of this Agreement and such failure or default continues unremedied for a period of thirty (30) days following written notice of such failure or default; (b) shall formally declare bankruptcy, insolvency, reorganization, liquidation, or receivership; or (c) shall have instigated against it bankruptcy, insolvency, reorganization, liquidation, or receivership proceedings, and shall fail to remove itself from such proceedings within ten (10) days from the date of institution of such proceedings. FLIR may terminate this Agreement upon written notice to Customer in the event Customer ceases use of the Services or Portal Equipment.
c. In the event of any termination of this Agreement, any amounts owed to FLIR under this Agreement before such termination or expiration will be immediately due and payable.
d. Upon termination or expiration of this Agreement for any reason, all rights and licenses granted by FLIR to Customer hereunder and/or thereunder will immediately cease to exist and Customer must (a) discontinue all use of the Services and API; and (b) at FLIR's request, return to FLIR or dispose of (as instructed by FLIR), at Customer's expense, all copies of Documentation in Customer's possession or control.
e. Sections 3, 10, 11, 13, 14, 16, 17, 18, 19 and 20, together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.
a. Services. Except for the limited license and use rights and other terms expressly set forth in this Agreement, FLIR and its licensors reserve all right, title, and interest (including all Intellectual Property Rights) in and to the Services and API. All trademarks, logos, and service marks ("Marks") displayed on the Services are the property of FLIR or of their respective owners. You are not permitted to use any of the Marks without the applicable prior written consent of FLIR or such respective owners.
b. Feedback. Any suggestions, information, comments, or other feedback provided by your authorized Users to FLIR regarding the Services or any other products or services provided by FLIR (including, without limitation, with respect to modifications, enhancements, improvements, and other changes to the Services or other products or services provided by FLIR) (collectively, “Feedback”) is voluntary, and you will ensure that your authorized Users grant to FLIR an irrevocable, non-exclusive, perpetual, world-wide, royalty-free, transferrable license to use (and authorize others to use) any Feedback without restriction.
In addition to any applicable supplemental terms set forth in an Order, the following limitations apply to the Services:
The Services are intended to be accessed and used for non-time-critical information. THE SERVICES ARE NOT INTENDED TO PROVIDE ANY EMERGENCY, EMERGENCY NOTIFICATION, MISSION CRITICAL, OR SAFETY RELATED FUNCTIONALITY, AND YOU WILL NOT USE THE SERVICES IN SUCH MANNER. If you use the Services in any of the prohibited applications identified in this Section you will indemnify, defend and hold FLIR harmless from and against any and all claims, damages, fines, sanctions, losses, costs, expenses, and liabilities arising out of or in connection with such use.
LIMITED WARRANTY; DISCLAIMER.
a. FLIR warrants that the Services will perform substantially in conformance with its Documentation throughout the Term and only to the extent that FLIR can influence it. In particular, FLIR has no influence on the functionality of the access possibility via public networks. Section 536a para. 2 and Section 536a para. 1 of the German Civil Code (BGB) are excluded to the extend they provide for strict liability. Otherwise, the statutory warranty provisions shall apply.
b. Any warranty provided by FLIR with respect to any Portal Equipment shall be set forth in a separate agreement between Customer and either FLIR or a FLIR distributor.
a. Customer will defend, indemnify and hold harmless FLIR and its affiliated companies and each of their respective officers, directors, employees and agents from and against any claims, liabilities, losses, damages, judgments, awards, fines, penalties, costs and expenses (including reasonable attorneys' fees and defense costs) which may be sustained or suffered by any of them arising out of or based upon (a) Customer's access to and use of the Services, API, Portal Equipment; and/or (b) Customer's breach of its obligations, representations and/or warranties under this Agreement; provided, however, Customer shall have no indemnity obligations under this Section 17 to the extent any such claim results from FLIR's gross negligence or willful misconduct.
b. FLIR will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Services as provided infringes any U.S. patents or any copyrights or misappropriates any trade secrets of a third party, and FLIR will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If the Services become, or in FLIR's opinion is likely to become, the subject of an infringement claim, FLIR may, at its option and expense, either (i) procure for Customer the right to continue using the Services, (ii) replace or modify the Services so that it becomes non-infringing, or (iii) terminate this Agreement upon written notice to Customer and refund Customer any Fees pre-paid by Customer for the use of the Services as of the effective date of termination. Notwithstanding the foregoing, FLIR will have no obligation under this Section 17 or otherwise with respect to any infringement claim based upon (a) any use of The Services not in accordance with this Agreement or the Documentation or for purposes not intended by FLIR, (b) any use of The Services in combination with other products, equipment or software not intended by FLIR to be used with The Services, (c) any Customer Data, (d) any modification of the Services by any person other than FLIR or its authorized agents or subcontractors, or (e) if the infringement caused by the Customer. THIS SECTION 17 STATES FLIR'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS. It does not apply for claims in relation to death or injury to body or health or which were caused intentionally or grossly negligent.
c. In connection with the indemnification obligations under this Section 17, the party to be indemnified (the "Indemnified Party") shall give the indemnifying party (the "Indemnifying Party") prompt written notice of any covered claim, allow the Indemnifying Party to control the defense and settlement of the claim, and cooperate with the Indemnifying Party, at the Indemnifying Party's reasonable request and expense, in defending or settling the claim. Notwithstanding the foregoing, the Indemnified Party shall have the right to participate in (but not control) the defense of any such claim with counsel of its choice and at its own expense.
LIMITATION OF LIABILITY.
a. Nothing in this Agreement will exclude or limit any party's liability: (i) for losses arising out of death or injury to body or health resulting from the negligent breach of duty of any party or their servants, agents or employees; (ii) for gross negligence or willful misconduct of any party, their servants, agents or employees; (iii) for fraud or fraudulent misrepresentation (arglistig verschwiegene Mängel); or (iv) unauthorized disclosure of Customer Data that results from a breach of FLIR's obligations under this Agreement.
b. Subject to Section 18.a, the total combined liability of each party under or in connection with this Agreement is, in each case, limited (i) per incident of breach to fees paid by the Customer over the period of twelve (12) months prior to the incident or the equivalent to the fees payable for the period of twelve (12) months of service; and (ii) in any event limited in the aggregate to the total amount of fees paid by the Customer under this Agreement.
a. The party receiving Confidential Information ("Receiving Party") from the other party ("Disclosing Party") will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party's duty hereunder. The Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
b. The Receiving Party's obligations under this Section 19 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party's Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party's reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
c. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party's possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or upon the expiration or termination of this Agreement; provided, however, the Receiving Party may retain one (1) archival copy for record retention purposes and compliance with applicable law. Upon the request of the Disclosing Party, the Receiving Party will certify in a writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 19.
d. In the event of breach by the Receiving Party of its obligations hereunder, the Disclosing Party shall be indemnified by the Receiving Party from any direct loss or harm, including, without limitation, reasonable attorneys' fees, in connection with any such breach or enforcement of the Receiving Party's obligations hereunder or the unauthorized use or release of any Confidential Information. The Receiving Party will notify the Disclosing Party in writing immediately upon the occurrence of any such unauthorized release or other breach of which it is aware and shall use its best efforts to prevent any further unauthorized release or breach. Other remedies remain unaffected by this Section.
e. If the Receiving Party breaches its obligations hereunder, the Disclosing Party is entitled to a contractual penalty the amount of which shall be set by the Disclosing Party with reasonable discretion according to Section 315 German Civil Code and its appropriateness may be checked by a competent court. A contractual penalty paid shall be applied against any damage compensation claims that may exist. The contractual penalty shall be the minimum amount of damages.
a. Compliance with Laws
You will ensure your authorized Users' use of the Services and Software (as applicable) is in compliance with all foreign, federal, state and local laws, rules, and regulations applicable to your use. By signing this Agreement, you warrant that you have all necessary rights and permissions to enter into it and your doing so does not violate any foreign, federal, state and local laws, rules, and regulations applicable to your access or use of the Services. You will ensure that you have all necessary rights and permissions to use any Customer Data that you submit to or otherwise use in connection with the Services. Customer will defend, indemnify, and hold FLIR harmless from and against any breach of this Section.
b. Export Regulations.
The Services are licensed for use in the specific country authorized by FLIR. You may not export or import the Services to another country without FLIR's written permission and payment of any applicable country specific surcharges. You will fully comply with all relevant and applicable export and import laws and regulations of the United States and foreign nations in which the Services will be used ("Export/Import Laws") to ensure that neither the Services nor any direct product thereof are exported or imported, directly or indirectly, in violation of any Export/Import Laws; or are intended to be used for any purposes prohibited by the Export/Import Law. These laws include restrictions on destinations, end users, and end uses. You represent and warrant that you: (a) are not a citizen, national or resident of, nor under the control of, the government of Cuba, Iran, North Korea, Syria, Sudan, or any other country to which the United States or the European Union has prohibited export; (b) are not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor listed on the United States Department of Commerce Table of Denial Orders, nor any other United States Government exclusion lists; (c) are not under the control of or an agent for anyone on such lists or the entities listed above; (d) will not export or re-export any portion of the Services, directly, or indirectly, to the above-mentioned countries or to citizens, nationals, or residents of those countries or to persons on the above mentioned lists; and (e) will not use the Services for, and will not allow the Services to be used for, any purposes prohibited by United States or European Union law, including for the development, design, manufacture, or production of nuclear, chemical, or biological weapons of mass destruction. Customer will defend, indemnify, and hold FLIR harmless from and against any breach of this Section.
Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including the license rights granted to Customer hereunder) to any third party without FLIR's prior written consent, which consent shall not be unreasonably withheld or delayed. FLIR shall have the right to assign this Agreement to any other entities within the FLIR group of companies at any time. FLIR will notify the Customer of any assignment of the Agreement to any other person, firm or corporation other than entities within the FLIR group of companies and the Customer may only object to any such assignment on reasonable grounds. FLIR shall have the further right to subcontract any installation and/or services, including monitoring, which it may be required to perform hereunder.
All notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, electronic facsimile (fax), or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address for each party first set forth in the Order, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.
e. Relationship of Parties.
The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
f. Force Majeure.
Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party.
g. Governing Law and Venue.
This Agreement any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and interpreted in accordance with the laws of Germany. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The courts of Hamburg shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
Any waiver or failure to enforce any provision of this Agreement by FLIR on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
Customer hereby grants to FLIR the limited right to use Customer's name and marks in marketing and publicity materials listing Customer as a customer of FLIR; provided, however, any such use must be pre-approved by Customer, which approval shall not be unreasonably withheld or delayed.
The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to."
l. U.S. Government Rights.
The Services is a "commercial item" as that term is defined at 48 CFR 2.101 (October 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 CFR 12.212 (September 1995), and is provided to the U.S. Government only as a commercial end item. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Services with only those rights set forth herein.
m. Entire Agreement.
This Agreement and all Orders, including any attachments hereto and thereto, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. In the event of a conflict between this Agreement and an Order, the terms of this Agreement shall control.
"API" means collectively the FLIR application programming interface (API) provided or made available by FLIR for use in association with the Services including all updates, upgrades, enhancements and error corrections made generally available by FLIR in its sole discretion.
"API Key" means the unique string identifying Customer as a user of an API, assigned by FLIR to Customer in FLIR's discretion, to enable Customer to access and/or use such API. API Keys may be subject to activation, suspension and/or deactivation by FLIR to ensure usage consistent with this Agreement and all applicable requirements, and for any other reason in FLIR's discretion.
"Confidential Information" means the terms and conditions of this Agreement and all information related to a party's business, financial affairs or operations, including information related to business plans, technology, source code, product or service development plans, pricing, techniques and methods, which is either marked or identified as confidential or which the receiving party knew or reasonably should have known, under the circumstances, was confidential. Without limiting the foregoing, the API shall be considered the Confidential Information of FLIR. For the avoidance of doubt, the term Confidential Information also includes ‘trade secrets' within the meaning of “trade secret” set forth in the EU Directive 2016/943 on protection of undisclosed know-how and business information (trade secrets) and/or the German Law on the Protection of Trade Secrets (Gesetz zum Schutz von Geschäftsgeheimnissen – “GeschGehG”) but is not limited to it. This Agreement shall not limit any statutory rights that may exist under the GeschGehG.
"Congestion Data" means any information or data collected by the Portal Equipment.
"Customer Data" means any data, information or material that Customer submits through the Services.
"Documentation" means the user manuals and other technical documentation made available by FLIR to Customer for the Services in either electronic, online help files or hard copy format.
"Intellectual Property Rights" means all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights.
"Order" means each ordering document that references this Agreement or the Services and is between you and FLIR (or one of FLIR's authorized distributors or resellers) pursuant to which Customer purchase a term-based right to use to the Services.
"Portal Equipment" means the physical equipment (but expressly excluding API), such as sensors, that Customer purchases from FLIR or a distributor of FLIR systems for in association with the Services.
"User(s)" means Customer's named employees who are authorized to use the Services by Customer.
Support. Subject to Customer's compliance with the terms of the Agreement, FLIR shall respond to support requests during Business Hours (as defined below), as provided in this SLA and the Agreement. Customer may submit support cases to FLIR through the following channels:
- E-mail: support.its@FLIR.com *
- Available within the FLIR Community
- Available from support.acyclica.com or directly from the FLIR Service under the 'Help' menu.
- Telephone (English only. FLIR may respond to requests in other languages on an as available basis.)
- US Toll Free: +1 800 404 2213
FLIR recommends telephone reporting for the quickest response, particularly on Severity 1 issues.
User self-help support is also available at support.acyclica.com where detailed FLIR Services information may be found.
As used herein "Business Hours" means Monday through Friday (excluding U.S. holidays) from 12:00 a.m. Mountain Time to 5_p.m. Mountain Time, which, depending on summer/winter time accommodations, generally equals 8 a.m. to 1 a.m. (next day) CET/CEST.
Customer may view outstanding cases and issues that are being worked on by FLIR support personnel, along with each case's history, by accessing a User's Community login under Case Portal section of Support where available.
Severity Level Determination: Customer shall reasonably recommend to FLIR an appropriate Severity Level designation based on the definitions in the next paragraph and included table. FLIR's initial response time shall be based on Customer's reported Severity Level. FLIR may validate Customer's Severity Level designation and shall notify Customer of a change in the Severity Level designation with justification for the change. The parties may escalate conflicts in Severity Level designation for resolution through consultation between the parties' management, during which time the parties shall continue to handle the support issue based on FLIR's Severity Level designation.
Severity Level Definitions & Target Response Times: The following response times apply for the first contact initiated by a FLIR support representative.
||Response Time (business Hours)
||Fatal. Critical error preventing any useful work from being done. Includes issues affecting all users and a complete loss of system availability where no workaround is available.
||Severe Impact. Persistent error affecting many users that prevents major functions from being performed or that severely degrades performance, with no reasonable workaround available.
||Degraded Impact. Error affecting some, but not all users, disabling only certain non-essential functions. Workaround available for short term, but not suitable for long term.
||Minimal Impact. Routine technical issues, errors affecting a small number of users, and other issues with no immediate impact on day-to-day operations, or where a reasonable workaround is available.
Scope. FLIR shall provide technical assistance in support of the FLIR Services as described in the Agreement and this Exhibit. FLIR is not responsible for configuring or diagnosing problems in any other part of the Customer's technical infrastructure.
Responsibilities. FLIR's ability to provide support depends on Customer's compliance with the Agreement, participation of knowledgeable Customer representatives that provide accurate and detailed information sufficient for FLIR to reproduce the reported error, and Customer's response to FLIR communications in a timely manner. FLIR is not obligated to provide support for issues related to network unavailability due to reasons beyond FLIR's control including emergency updates to address security, privacy, legal, regulatory, or third party hardware or software issues not reasonably foreseeable by FLIR or within FLIR's direct control.
FLIR reserves the right to update support policies from time to time, but only to the extent that the update does not materially and adversely diminish Customer's rights to support services as provided in this Exhibit.