TERMS OF SERVICE
Last Modified: July 17, 2018
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS MANDATORY BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Our Service
The OWAL Service provides a cloud video platform, which completely reimagines and enriches surveillance video in residential and commercial buildings, as well as assisted living facilities, by using artificial intelligence to convert previously squandered video into powerful, interpreted, behavioral data.
This is a contract between you and OWAL. You must read and agree to these terms before using the OWAL Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with OWAL, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement. If you are accessing or using the Service on behalf of, or for the benefit of, any entity, company or organization with which you are associated (the “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. The Service is not available to any Users previously removed from the Service by OWAL.
1.2 Limited License
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to access and use the Service as permitted by the features of the Service, solely for your and/or your Organization’s internal business purpose. OWAL reserves all rights not expressly granted herein in the Service and the OWAL Content (as defined below). OWAL may terminate this license at any time for any reason or no reason. In addition, OWAL reserves the right to discontinue any aspect of the Service at any time, including the right to discontinue the display of any User Data. You agree that any termination of your access to the Service or any account you may have or portion thereof may be affected without prior notice, and you agree that OWAL will not be liable to you or any third-party for such termination. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies OWAL may have at law or in equity.
1.3 User Accounts
Your account on the Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of User Accounts for different types of Users. If you open a User Account on behalf of an Organization, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to or integrating with OWAL through a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your User Account. You must notify OWAL immediately of any breach of security or unauthorized use of your User Account. OWAL will not be liable for any losses caused by any unauthorized use of your User Account.
You may control your User profile and how you interact with the Service by changing the settings in your settings page or by emailing us at support@OWAL.com. By providing OWAL your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your settings page or by emailing us at support@OWAL.com. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
You acknowledge and agree that OWAL may access, preserve and disclose your account information and related contents if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any User Data violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of OWAL, its users, or the public.
1.4 System Access
You may choose to allow OWAL to automatically retrieve data from your system(s) or third-party systems or services on your behalf. You hereby represent and warrant that you have the permission, authority, and rights to allow OWAL to so automatically access such system(s) and services and you hereby grant OWAL permission to access such system(s) and services and retrieve User Data therefrom by indicating the same within your account. OWAL disclaims any and all liability associated with accessing and retrieving User Data from such system(s) and services on your behalf. In order to connect the Service with any third-party service, you hereby authorize us to: (a) store your User Data relating to such service; (b) access such service using User Data you provide us; (c) use any materials you provide us in order to provide you the Service; (d) gather and export from such service any User Data reasonably necessary for us to provide the Service to you; and (e) otherwise take any action in connection with such service as is reasonably necessary for us to provide the Service to you. You agree that those third-party service providers are entitled to rely on the foregoing authorization granted by you. If at any time you do not have the right and authority to allow OWAL automatic access to such system(s), then you hereby agree to immediately disable such functionality within your User Accounts.
1.5 Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the OWAL servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that OWAL grants the operators of public search engines revocable permission to use spiders to copy publically available materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein
1.6 Support and Maintenance
Subject to the terms herein, OWAL will provide you with reasonable technical support services in accordance with its standard practice. OWAL will use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by OWAL or by third-party providers, or internet service provider failures or delays, or because of a Force Majeure Event (as defined below), but we will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. If you have any support related inquiries please contact us via the contact information provided below.
2. Restrictions and Responsibilities
2.1 License Restrictions
You will not, directly or indirectly: (a) copy (except as expressly provided herein), modify, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying structure, ideas, know-how or algorithms relevant to the Service, in whole or in part, or the Documentation or data related to the Service; (b) translate, or create derivative or other works based on the Service, if applicable (except to the extent expressly permitted in advance in writing by OWAL or authorized within the Service); (c) use the Service for the benefit of any third party or rent, lease, lend, sell, sublicense, assign, distribute, publish or otherwise make available the Service to any third party; (d) remove, alter, obscure, combine, supplement or otherwise change any proprietary notices or labels relating to the Service, including any Documentation; (e) use the Service or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any third party, or that violates any Applicable Laws; or (f) use the Service for purposes of: (i) benchmarking or competitive analysis of the Service or (ii) developing, using or providing a competing software product or service.
2.2 Compliance with Laws
You represent, covenant, and warrant that you will use the Service only in compliance with all Applicable Laws.
You will be responsible for obtaining and maintaining, at your own expense, any and all equipment and ancillary services needed to connect to, access or otherwise use the Services, including, internet connections, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, the “Equipment”). You will also be responsible for maintaining the security of the Equipment, your User Accounts, passwords (including administrative and user passwords) and files, and for all uses of all User Accounts or the Equipment with or without your knowledge or consent. You understand that communications may traverse an unencrypted public internet connection and that use of the internet provides the opportunity for unauthorized third parties to illegally gain access to your data. Accordingly, OWAL does not guarantee the privacy, security or authenticity of any information transmitted over or stored in any system connected to the internet.
You will take all commercially reasonable measures to safeguard the Service and all Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
3. User Data
3.1 Use of User Data
By providing or submitting User Data to OWAL or to the Service, storing User Data on the Service, and/or permitting OWAL to collect and/or store User Data from your system(s) or third-party systems or services on your behalf through the Service, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the User Data required for OWAL and its subcontractors and service providers to (a) provide the Service to you, including without limitation, to capture, maintain, observe, study, and process the User Data in connection with OWAL’s provision of Services to you; (b) compile aggregated statistics for internal use and for marketing use, provided that no such marketing use shall include any information that can identify you or any of your employees, clients, building visitors, tenants, residents, subcontractors, or members (collectively, the “End Users”) and use User Data for the purposes of analyzing, improving, informing, and developing the Service, and any of our other products and services, including without limitation, any enhancements or improvements thereto.
3.2 Aggregated Anonymous Data
Notwithstanding anything set forth in this Agreement, OWAL is the sole and exclusive owner of the Aggregated Anonymous Data and any and all Intellectual Property Rights contained therein and related thereto. To the extent, if any, that this Agreement does not provide OWAL with full ownership, right, title and interest in and to the Aggregated Anonymous Data, you hereby irrevocably transfer, convey, and assign to OWAL (with full warranty of title and free from all encumbrances) any and all of you interest in and right and title to the Aggregated Anonymous Data and all related Intellectual Property Rights contained therein and related thereto, including without limitation, all right to and interest in all causes of action throughout the world, either in law or in equity for past, present, or future infringement based on the Intellectual Property Rights. You retain no rights to use or to convey to third parties the right to use the Aggregated Anonymous Data, and agree not to challenge the validity of OWAL’s ownership of the Aggregated Anonymous Data. Any such assignment includes all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like.
3.3 Your Responsibilities of User Data
3.4 Security Incidents
In the event that User Data is disclosed to or accessed by an unauthorized party (a “Security Incident”), OWAL will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident; and if such incident triggers any third party notice requirements under applicable laws, you agree that as the owner of the User Data, you will be responsible for the timing, content, cost and method of any such notice and compliance with such laws[; provided that if the Security Incident involved Sensitive Identity Data which is in the sole possession and control of OWAL, as the owner of the Customer Data, you will be responsible for the timing, content and method of any such notice and compliance with such laws and OWAL shall be responsible for, and shall reimburse you for, all legally-required notification-related costs].[A1]
3.5 No Responsibility for Backups
OWAL will not be responsible for any backup, recovery or other steps required to ensure that User Data is recoverable in the case of data loss. You are solely responsible for backing up your User Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your User Data.
3.6 Rights to User Data
You own all right, title and interest (including all Intellectual Property Rights) in and to your User Data. Following your use of the Services, you may submit a written request to OWAL to remove from its systems any User Data consisting of Personal Information and following the receipt of such request, OWAL shall promptly delete any such Personal Information from its systems. OWAL shall provide to you a copy of your User Data promptly following your written request for such User Data.
4. Customer Data
4.1 Customer Data Access
All Customer Data, which is not Sensitive Identity Data, collected by OWAL shall be accessible by you through the Service. Without limiting any of the foregoing and in addition thereto, OWAL shall collect, process, and use Sensitive Identity Data collected from visitors to your or your Organization’s premises solely for the purposes of providing the Identification Analysis functionality of the Service and as described in Section 3. Only the results of the Identification Analysis, and not the Sensitive Identity Data upon which the Identification Analysis if based, shall be accessible by you through the Service.
4.2 Your Responsibilities
You are solely responsible for ensuring providing notice and obtaining consents, if necessary, to your employees, customers, visitors and others who interact with the Service on your or your Organization’s premises and for compliance with all applicable laws, including laws relating to biometric data privacy in effect now and in the future. You shall also be responsible for maintaining the security of the Service, your User Account, passwords and files.
5. Our Proprietary Rights
The Service is owned and operated by OWAL. The visual interfaces, graphics, design, compilation, information, computer code, products, software, services, and all other elements of the Service provided by OWAL, but expressly excluding any of the foregoing owned or licensed by and submitted to or collected by the Service at the direction of Users (including without limitation User Data) (collectively, “Materials”) are protected by Intellectual Property Rights and other Applicable Laws, and are the property of OWAL and/or its subsidiaries or affiliated companies. All of OWAL’s, its affiliates’ and its third party licensors’ trademarks, service marks, and trade names are proprietary to OWAL or its affiliates and/or third-party licensors, as applicable. Except as expressly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Materials or the Intellectual Property Rights therein or thereto, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place OWAL under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, OWAL does not waive any rights to use similar or related ideas previously known to OWAL, or developed by its employees, or obtained from sources other than you.
6. Payment of Fees
You will pay OWAL the then applicable fees described in an Order Form, if any, for the Service described in any such Order Form and in accordance with the terms therein (the “Fees”). OWAL reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to you (which may be sent by email). If you believe that we have billed you incorrectly, you must contact us no later than fifteen (15) days after the closing date on the first billing statement in which the error or problem appeared. Upon receipt of such notice, we will review the circumstances and upon confirmation, will issue an adjustment or credit, as the circumstances warrant. We will have no obligation to issue any such adjustments or credits for notices received later than fifteen (15) days after the closing date on the first billing statement in which the error or problem appeared, and all invoices will then be deemed accurate and accepted. Inquiries should be directed to OWAL’s client support department at support@OWAL.com.
6.2 Billing and Taxes
OWAL may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by OWAL not later than thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and OWAL reserves the right to immediately suspend or terminate your access or use of Service without notice for any non-payment. You will be responsible for all taxes associated with Service other than U.S. taxes based on OWAL’s net income.
7. Security and Privacy
We have implemented commercially reasonable technical and organizational measures designed to secure your User Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your User Data for improper purposes. You understand that internet technologies have the inherent potential for disclosure. You acknowledge that you are under no obligation to provide Personal Information or other sensitive information in order to use the Service and that you provide any such information at your own risk.
8. Third-Party Links and Information
You agree to defend, indemnify and hold harmless OWAL and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (a) your use of and access to the Service, including any data or work transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties set forth herein; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any Applicable Laws, including, but not limited to, your or OWAL’s violation of the Illinois Biometric Information Privacy Act (“BIPA”), the Washington Biometric Privacy Law, the Texas Biometric Privacy Act, and all other applicable biometric privacy laws; (e) any claim or damages that arise as a result of any of your User Data and/or use thereof or any other data and/or use thereof that is submitted by you or collected by OWAL on your behalf via your User Account; (f) any other party’s access and use of the Service with your unique username, password or other appropriate security code; or (g) any End User’s behavior, or for any personal injury, death, property damage (including without limitation, to your or your Organization’s premises, or other harm or losses arising from or realting to to your use of the Services. OWAL will have the right to control the defense, settlement, adjustment or compromise of any such claims, actions or proceedings by using counsel selected by OWAL. OWAL will use reasonable efforts to notify you of any such claims, actions, or proceedings upon becoming aware of the same.
10. No Warranty
The Service is provided on an “as is” and “as available” basis. Use of the Service is at your own risk. To the maximum extent permitted by Applicable Laws, the Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from OWAL or through the Service will create any warranty not expressly stated herein. Without limiting the foregoing, OWAL, its subsidiaries, its affiliates, and its licensors do not warrant that the content or Materials displayed on the Site, including without limitation, any and all analytics or behavioral data derived from User Data, are accurate, reliable, complete, error-free or correct; that the Service will meet your requirements; that the Service will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Service is free of viruses or other harmful components. You understand and agree that you download or otherwise obtain third party or User Data, Materials, or content through the use of the Service at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any of the foregoing. OWAL will not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store or maintain any third-party or User Data.
You acknowledge that OWAL accepts no responsibility or liability for User Data, and makes no warranty with respect to such User Data or any data or analytics derived therefrom. In particular, without limiting the generality of the foregoing, OWAL makes no warranty that such User Data or any data or analytics derived therefrom will be free of any virus, worm, trojan horse, easter egg, time bomb, cancelbot, or other destructive or malicious code or programs. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against OWAL with respect to any User Data or any data or analytics derived therefrom.
Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this agreement will not apply to the extent prohibited by Applicable Laws.
11. Limitation of Liability
Under no circumstances, including, but not limited to, negligence, will OWAL or its affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation losses or liability resulting from loss of data, loss of revenue, anticipated profits, or loss of business opportunity) that result from your use or your inability to use the information or materials on the Service, or any other interactions with OWAL, even if OWAL or a OWAL authorized representative has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, OWAL’s liability will be limited to the fullest extent permitted by applicable law. OWAL is not responsible for any User’s or End User’s behavior, or for any personal injury, death, property damage (including without limitation, to User’s or User’s Organization’s premises), or other harm or losses arising from or relating to their use of the Service.
In no event will OWAL’s or its affiliates’, contractors’, employees’, agents’, or third-party partners’, licensor’s, or suppliers’ total liability to you for all damages, losses, and causes of action arising out of or relating to this Agreemnet or your use of the Service, including without limitation your interactions with other users or any personal injury, loss of life, or property damages (whether in contract, tort including negligence, warranty, or otherwise) exceed one hundred dollars ($100.00).
You acknowledge and agree that OWAL has offered its products and services, set its prices, and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the disclaimers of warranty and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the disclaimers of warranty and the limitations of liability set forth herein form an essential basis of the bargain between you and OWAL.
12. Location of the Service
The Service is controlled and operated from facilities in the United States. OWAL makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all Applicable Laws of the United States, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States. By using the Service, you are consenting to have your personal data transferred to and processed in the United States.
13. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
13.1 Governing Law
You agree that: (i) the Service shall be deemed solely based in New York; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York County, New York State for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York County, New York State is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM OWAL.
YOU AND OWAL AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THIS AGREEMENT SHALL BE FINAL AND BINDING ARBITRATION.
Either OWAL or you may demand that any dispute between OWAL and you about or involving your use of the Service or Portal must be settled by arbitration utilizing the Commercial Arbitration Rules of the American Arbitration Association (AAA) in New York, New York, USA, provided that the foregoing shall not prevent OWAL from seeking injunctive relief in a court of competent jurisdiction. If you are using the Service for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Judgment on the award may be entered in any court of competent jurisdiction.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND OWAL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Nothing in this Section shall be deemed as preventing OWAL from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights.
14.1 Force Majeure. Neither you nor OWAL will have liability under this Agreement if you or OWAL (as applicable) is prevented from, or delayed in, performing its obligations under this Agreement, or from carrying on its business, by a Force Majeure Event. The party whose performance is prevented, hindered or delayed by a Force Majeure Event will promptly notify the other party of such an event describing in reasonable detail the nature of the Force Majeure Event and its expected duration.
14.2 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by OWAL without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
14.3 Notification Procedures and Changes to this Agreement. OWAL may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our Portal, as determined by OWAL in our sole discretion. OWAL reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement. OWAL is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. OWAL may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change this Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to this Agreement. Your continued use of the Service after any such change constitutes your acceptance of the new Agreement. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
14.4 Construction and Interpretation. “Affiliates” means a party’s affiliates existing from time to time. The captions, titles and headings are included in this Agreement for convenience and reference only and do not affect the construction or interpretation of this Agreement. The words “including, “includes,” or “include” or “e.g.” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance.
14.5 Independent Contractors. The parties are independent contractors, and nothing contained in this Agreement will be construed to constitute the parties as, partners, joint ventures, co-owners, employer/employee, or otherwise as participants in an agency or joint or common undertaking.
14.6 No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and OWAL’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
14.7 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with OWAL in connection with the Service, shall constitute the entire agreement between you and OWAL concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
14.8 Survival. Upon termination of this Agreement, any provision which, by its nature or express terms should survive, shall survive such termination or expiration, including, but not limited to, Sections 2 through 6, 9 through 11, 13 through 15.
15.1 “Aggregated Anonymous Data” means User Data which is aggregated with the data of other Users and is in no way (directly or indirectly) identifiable to (or enables the identification of) any User or any of its customers, employees or any other individual.
15.2 “Applicable Laws” means: (a) any and all laws, rules, statutes, regulations, ordinances, or subordinate legislation in force from time to time to which a party or its affiliates is subject, including, without limitation, the rules and regulations promulgated under Title V of the Gramm-Leach-Bliley Act of 1999, 15 U.S.C. 6801 to 6809 or any successor thereto, and the Federal Fair Housing Laws; (b) the common law as applicable to the parties from time to time; (c) any and all court orders, judgments, or decrees that are binding on a party or its affiliates; and (d) any and all directives, policies, rules, ordinances or orders that are binding on a party or its affiliates and that is made or given by a regulator, or other government or government agency, of, in the case of items (a) through (d) above, any country, or other national, federal, commonwealth, state, provincial, or local jurisdiction.
15.3 “Customer Data” means any and all data and information collected from visitors to your or your Organization’s premises through the Service.
15.4 “Documentation” means OWAL’s user manuals, handbooks, and installation guides relating to the Service that OWAL Jones provides or makes available to you which describe the functionality, components, features or requirements of the Service, including any aspect of the installation, configuration, integration, operation, or use of the Service.
15.5 “Force Majeure Event” means an act of God, act of governmental body or military authority, fire, explosion, flood, epidemic, riot or civil disturbance, war, sabotage, insurrections, blockades, embargoes, terrorism, viruses, cyber-attacks, floods, fire, storms, delays by suppliers or material shortages or other similar events that are beyond the reasonable control of the affected party.
15.6 "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
15.7 “Personal Information” means any and all personal or personally identifiable information and/or records of or regarding your or your affiliates' officers, directors, employees, investors, or any of the End Users.
15.8 “Sensitive Identity Data” means a biometric identifier derived from a photographic image, a driver’s license number, social security number, or other state-issued identifier, as well as identity data obtained from third party identity service providers, used by the Service to ascertain and confirm the identity of the visitor (“Identification Analysis”).
15.9 “User Data” means, collectively, any and all information and/or data provided or submitted to OWAL and/or the Service, stored on the Service, or collected by the Service from your or third party systems(s) or services on behalf of you and displayed in your User Account, in each case, relating to you, your End Users, or your business, including any and all Customer Data and other Personal Information relating to any of the foregoing.
[A1]OWAL: This is an option you can offer in the event you receive pushback on this section – here you would be responsible for breach notification costs associated with Sensitive Identity Data. Please note that these costs may be substantial, and you should obtain cyber-insurance for coverage.