TIGEREYE LABS INC.
General Terms and Conditions of Use
These General Terms and Conditions of Use (these “Terms”) apply to Your account with TigerEye Labs Inc. (“TIGEREYE” or “Us” or “We” or “Our”) and to Our Services. These Terms constitute a binding contract between You and Us (the “Agreement”) and govern Your access to and use of Our services, including those offered through Our websites, events, communications (e.g., emails, phone calls, and texts) and mobile applications.
If You register for a free or paid trial or a “beta” test for one or more TIGEREYE Services, then the provisions of Section 8 of these Terms will govern, as applicable, that free or paid trial or “beta” test for those Services.
YOU MAY NOT ACCESS ANY TIGEREYE SERVICE IF YOU ARE A TIGEREYE COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF TIGEREYE.
These Terms were last updated on May 22, 2023. These Terms are effective between You and Us as of the Effective Date.
1. Acceptance
1.1. You can accept these Terms in several ways. You will have accepted these Terms if You:
1.1.1. execute an Order that references these Terms;
1.1.2. click a box indicating “I Accept” or some other similar indication of acceptance during online account registration or subscription process; or
1.1.3. You or any of Your authorized designees otherwise access or use any of the TIGEREYE Services.
By accepting these Terms, You confirm Your affirmative consent to be a party to this Agreement. If You do not agree, neither You nor any of Your designees have the right to access or use any TIGEREYE Services.
1.2. If You are entering into these Terms on behalf of a company or other legal entity (as an employee or contractor), You represent that You have the authority to bind that entity to these Terms. If You are not entering into these Terms on behalf of another legal entity, then You are doing so on behalf of yourself. In either case, the references in these Terms to “You” or “Your” shall refer either to You in Your individual capacity or to the company or other legal entity You represent. If You do not have such authority (or otherwise lack the capacity to enter into these Terms), or if You do not agree with these Terms, You must not accept these Terms and neither You nor any of Your designees may use or access any of the TIGEREYE Services.
1.3. Additional capitalized terms are defined in these Terms and in the “Definitions” section (Section 15) below.
2. Orders
2.1. Order Meaning. An “Order” means either (i) an order form or other document mutually accepted by the parties for the purchase of TIGEREYE Services (e.g., a TIGEREYE sales order form) that specifies the Services to be provided by TIGEREYE to You, the associated Fees, and other related details regarding the purchase of the TIGEREYE Services; or (ii) an online form accompanying a credit card-based transaction for the TIGEREYE Services.
2.2. Order Acceptance. TIGEREYE’s acceptance of an Order occurs on the earliest of the date that: (A) TIGEREYE countersigns the Order, as applicable; (B) TIGEREYE sends an email confirming Your purchase pursuant to an Order; or (C) TIGEREYE commences performance pursuant to an Order.
2.3. Order Contents. Each Order for TIGEREYE Services will have its own unique identifier and may contain other terms or conditions specific to that Order, which have been mutually agreed upon by TIGEREYE and You. Your purchase of access to and use of the TIGEREYE Services is on a subscription basis and shall be subject to the limitations and restrictions of the applicable Order and these Terms. You may purchase additional TIGEREYE Services or expand the scope of the TIGEREYE Services to which You have previously subscribed by submitting additional Orders, which TIGEREYE may then accept in its sole discretion. An Order may also contain details relating to Professional Services that You may request.
3. Our Responsibilities (Provision of the Services)
3.1. Your Access Rights to the Services. Subject to these Terms, including Your payment of all applicable Fees, TIGEREYE hereby grants You a non-exclusive, non-transferable, non-sublicensable, internal right, during the Subscription Term, to access one or more subscribed for Services through one or more authorized Customer Accounts. TIGEREYE may transmit a password key or other electronic correspondence containing access credentials to confirm that a Customer Account is authorized (“Authorization Information”) in order to permit You (and others You designate as Your Authorized Users) to access and use the Services. Subject to Your direction, TIGEREYE may serve as the Account Administrator for one or more of Your Customer Account(s) (and take actions at Your direction to manage Your Customer Account(s)) or You may designate one of Your employees or contractors to serve as the Account Administrator for the subscribed Services, in which case TIGEREYE will provide, if required, necessary Authorization Information to Your Account Administrator who will in turn authorize and otherwise manage Your Authorized Users and Your Customer Account(s). TIGEREYE will make the Services available to You consistent with the manner in which TIGEREYE makes such Services generally commercially available to users with the same subscription as You (including level, geography and other attributes).
3.2. Privacy. TIGEREYE is committed to protecting Your privacy and letting You know what TIGEREYE will do with Your personal information. TIGEREYE’s Privacy Statement www.tigereye.com/privacy sets forth (i) how TIGEREYE may collect, use, store and process personal information of or relating to You, and (ii) how You may request deletion of Your personal information. You acknowledge that You have read and understand Our Privacy Statement.
3.3. Security.
3.3.1. Security Protocols. Our Services will be provided using processes and safeguards that are designed to help maintain the security of Your Content. Please see Exhibit B for details regarding Our current security protocols.
3.3.2. Audits. From time to time for certain of Our Services, We may have external auditors prepare reports that relate to Our adherence to Our security controls. You may request a copy of these reports if the reports are applicable to a Service to which You subscribe, subject to Your agreement with Us on nondisclosure of and restrictions on use of these reports. We expect to make these types of reports available no more frequently than once annually.
3.4. Availability. TIGEREYE will use commercially reasonable efforts to: (i) maintain a Services uptime of at least 99.9%, excluding scheduled maintenance and downtime requested by You, measured on a calendar quarterly basis; (ii) prepare and implement a disaster recovery plan intended to restore service within twenty-four (24) hours after any interruption of the Services; and (iii) implement commercially reasonable measures designed to secure the Services against unauthorized access to or alteration of Your Content; provided that: (1) in no event does TIGEREYE have any obligation or liability to You with respect to any inability to access or use the Services by an Authorized User that has been terminated or suspended for any reason; and (2) You are solely responsible for maintaining the security and operability of Your systems and devices used to access the Services and ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of Your Content.
3.5. Content Monitoring. TIGEREYE may, but is under no obligation to review, monitor, verify, endorse, or inspect any of Your Content or Your use of the TIGEREYE Services (including the use of any Service by any of Your Authorized Users) to ensure compliance with these Terms or applicable laws. If We become aware of any possible violations of these Terms or applicable law, We may, in Our sole discretion, remove any questionable or violative Content or terminate Your, Your Account Administrator’s or your Authorized Users’ access to and use of a TIGEREYE Service.
4. Your Responsibilities (Use of the Services)
4.1. Services Account.
4.1.1. Subscribing and Logging Into a Customer Account. To subscribe to a TIGEREYE Service, You will need a Customer Account and You may be required to log into Your Customer Account to activate, access or use the applicable TIGEREYE Service.
4.1.2. Who Can Use Your Account. Only You (and Your Authorized Users and Account Administrator) may access or use a TIGEREYE Service through Your Customer Account.
4.1.3. You Are Responsible for Your Customer Account. You are responsible for anyone who obtains, accesses or uses a TIGEREYE Service through You or Your Customer Account (including Your Authorized Users and Account Administrator(s)).
4.1.4. Authorized User Terms or Accounts. In order to obtain, access or use a TIGEREYE Service and Your Customer Account within that Service, Your Authorized Users will be required to agree to applicable Service terms of use and may be required to set up individual passwords or accounts (but that requirement does not change or diminish Your responsibility for Your Authorized Users).
4.1.5. Account Administrator. You are responsible for the actions of Your Account Administrator, including when You request that TIGEREYE act as Your Account Administrator (provided that TIGEREYE acts in accordance with Your directions or instructions).
4.2. Authorized Users.
4.2.1. Number of Authorized Users. You have the right to designate up to the number of Authorized Users permitted by your subscription to an applicable TIGEREYE Service.
4.2.2. Requirements for Each Authorized User. Each of Your Authorized Users: (a) will be required to accept the TIGEREYE User Terms of Use located located at www.tigereye.com/userterms and (b) may be required to establish an individual password or account. Notwithstanding the foregoing, You are responsible for the security of Your Customer Account and all activity associated with Your Customer Account. As a result, You (i) must ensure that only Your Authorized Users use a TIGEREYE Service associated with Your Customer Account, and (ii) must secure and not share user IDs or passwords (except with Your Account Administrator). If You suspect unauthorized use of Your Customer Account, please contact security@tigereye.com. You are responsible for Your Authorized Users’ compliance with these Terms as though each of Your Authorized Users is You. You will ensure that all Your Customer Account information (including any information that You or Your Authorized Users provide in connection with Your registration for any Service) is, and continues to be, true and complete.
4.2.3. Authorized User Permissions. One or more TIGEREYE Services may allow You (directly or through an Account Administrator) to set role-based permissions and access rights to information within Your Customer Account for that Service for each Authorized User. You are solely responsible for setting any permissions or access rights and TIGEREYE takes no responsibility for and assumes no liability in respect of any information accessed by an Authorized User consistent with the permissions or access rights You provided, set, designated, or instructed. In the event that a TIGEREYE Service does not include any role-based permissions or access rights for Authorized Users, You should ensure that You only grant access to employees or contractors as Authorized Users that You desire to have access to the information and Content contained or made available for viewing within Your Customer Account for that Service.
4.3. Your Required Information. One or more of the TIGEREYE Services may require You to provide additional information to set up and access such Services, and You agree to provide that information. For example, for TIGEREYE to provide certain TIGEREYE Services, You will be required to grant TIGEREYE access to Your account information and a valid password or API token to certain external third-party software or services. You further represent and warrant that you have the rights and permissions to provide TIGEREYE with access rights to such external third-party software and services and any data contained therein.
4.4. Authorized Usage. You may access and use TIGEREYE Services solely (i) in accordance with the Documentation for the applicable TIGEREYE Service, (ii) for Your internal business purposes, in the form made accessible and/or provided by TIGEREYE, and (iii) within the scope of Your subscription. You may not access or use (or allow access to or use of) any TIGEREYE Service other than as authorized by these Terms, and any such access or use is unauthorized.
4.5. Usage Requirements. Use of TIGEREYE Services may require You to connect Your electronic devices to the internet (intermittently or on a regular basis) for a variety of reasons, including (i) to allow You to access the TIGEREYE Services, (ii) to validate Your subscription, and/or (iii) to make available Updates of Upgrades. You agree to such connection and to validation of Your subscription and to the automatic downloading and installation of Updates and Upgrades. The TIGEREYE Services do not include access to the internet or any other network or to any communications services or any hardware, software, storage, security or other resources necessary for accessing or using the TIGEREYE Services. You and Your other suppliers and service providers are responsible for acquiring all such items and for their reliability, security and performance.
4.6. Usage Restrictions. Except as expressly permitted by this Agreement, You will not, and will ensure that any Account Administrators and Authorized Users, do not: (i) access or attempt to access any TIGEREYE Service by any means other than the interface TIGEREYE provides or authorizes; (ii) reproduce, download, frame, mirror, modify, adapt, translate, or create derivative works of any TIGEREYE Service, any Documentation, or any portions thereof; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to discover, learn or study the structure or organization, underlying algorithms or other internals, the protocols, data structures or other externals, or the source code of the TIGEREYE Services, APIs, or any portion thereof (except as permitted under applicable law notwithstanding a contractual prohibition to the contrary); (iv) access or use any TIGEREYE Service in order to build any competing product or service; (v) license, sub-license, sell, rent, lease, transfer, assign, distribute, disclose, or otherwise make available all or any portion of any TIGEREYE Service to any third party, other than Account Administrators or Authorized Users, or use any TIGEREYE Service on a service bureau basis; (vi) access or use any portion of any TIGEREYE Service in violation of any law, regulation, or agreement with any third party; (vii) remove, obscure or alter any trademarks, brand names, or other proprietary notices appearing on or contained within any TIGEREYE Service or Documentation; (viii) conduct security, integrity, penetration, vulnerability or similar testing on any TIGEREYE Service or use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as robots) in conjunction with any TIGEREYE Service; (ix) attempt to gain any unauthorized access to any TIGEREYE Service or any portion thereof; or (x) access or use any TIGEREYE Service other than as expressly permitted by this Agreement. In addition, You will not (and will ensure that Your Account Administrators and Authorized Users do not):
4.7. Other Responsibilities. You will, and You will ensure all Your Authorized Users, abide by all applicable laws, treaties, ordinances and regulations in connection with accessing and using any TIGEREYE Service. You will be responsible and liable for the activities occurring on or resulting from any access to, use or misuse by an Authorized User, including any uploading, storing, creating, modifying, downloading, sharing, or erasing of any of Your Content or other information on any TIGEREYE Service. You shall be responsible for each Authorized User’s compliance with this Agreement and the TIGEREYE User Terms of Use. You agree that any act committed by Your Account Administrator or any Authorized User that would constitute a breach of any provision of this Agreement if committed by You shall be deemed a breach of such provision by You for purposes of any action between the parties. You represent and warrant that neither Your nor any of Your Authorized User’s access to and use of any TIGEREYE Service will violate any agreement between You and a third party or any applicable law.
4.8. Use of Third-Party Materials and Services. TIGEREYE may provide You with content, recommendations, query responses, data sets, summaries, documents, libraries, audio, links, data, applications and other software, services or similar material of a third party (collectively, “Third-Party Material/Services”) in connection with a TIGEREYE Service. Any such Third-Party Material/Services may be governed by different terms found in such Third-Party Material/Services, on a web page specified by TIGEREYE or in the Documentation for the TIGEREYE Service for which the Third-Party Materials/Services are provided (collectively, “Third-Party Terms”). If there are no Third-Party Terms, Your use of any Third-Party Materials/Services must be (i) limited to the same terms as the TIGEREYE Service for which You received the Third-Party Material/Services, and (ii) solely in connection with Your use of such TIGEREYE Service. You take sole responsibility for determining, obtaining and complying with all Third-Party Terms. TIGEREYE will have no responsibility for, and makes no representations and warranties regarding, (a) any Third-Party Material/Services or Your use of such Third-Party Material/Services, and (b) the Third-Party Terms or Your compliance with such Third-Party Terms.
4.9. Collaboration. A TIGEREYE Service may permit You to collaborate with others, including sharing Your Content or publishing Your Content—for example, to a forum or to other services. If You choose to share or publish Your Content (whether by collaboration on or sharing files, emailing, sharing a link, sharing files with other applications or services, posting in a forum or gallery or otherwise), then others (including, in some cases, the general public) may be able to use, sell, reproduce, modify, distribute, make available, display, transmit and communicate Your Content. Forums and galleries may be public, and submissions are generally public. Once You share or publish Your Content, suspending or terminating access will not delete or inhibit access to any of Your Content that was earlier copied, transferred or otherwise shared or published. If You do not want others to have any such access or any of those rights, do not use the sharing, publishing or other collaboration features of an applicable TIGEREYE Service and set Your permissions accordingly. In addition, a TIGEREYE Service may feature links to third parties that offer services, software or other materials that complement such TIGEREYE Service. Such links are provided as a convenience to You. TIGEREYE does not monitor or control what such third parties will do with Your Content. You are responsible for ensuring the appropriate level of access to Your Content by any third party. If You authorize any of Your information or Your Content to be shared with any third party, TIGEREYE may make available Your information or Your Content to such third party. In that event, notwithstanding any term or condition in these Terms to the contrary, TIGEREYE will have no responsibility or liability for the actions of such third party, and all governing terms and conditions, including those regarding privacy, are between You and such third party.
4.10. Authorization to Contact Others. As part of a TIGEREYE Service, You may wish to create and distribute requests for information, surveys and/or other communications to Your employees, consultants, contractors and other third parties. If You elect to use one of these features of an applicable TIGEREYE Service, You expressly grant us permission to contact such employees, consultants, contractor and other third parties directly via email or other means and to include the information collected from them into your Customer Account for the applicable TIGEREYE Service.
4.11. Acknowledgment of Existing Services. You agree that Your purchase of any TIGEREYE Service is not contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written public comments made by TIGEREYE with respect to future functionality or features.
5. Content
5.1. Ownership Generally. As a general rule, Your Content is owned by You and TIGEREYE’s Content is owned by TIGEREYE. More specifically:
5.1.1. Your Content. As between You and TIGEREYE, You exclusively own all rights, title and interest in and to all Your Content. This Agreement is not a sale and does not convey to TIGEREYE any rights of ownership in or related to any of Your Content. Except as otherwise provided in these Terms, Your name, logo and product names are trademarks of You, and no right or license is granted to TIGEREYE to use them. All rights to Your Content not expressly granted to TIGEREYE are reserved by You. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Your Content.
5.1.2. TIGEREYE Content. As between TIGEREYE and You, TIGEREYE exclusively owns all rights, title and interest in and to all TIGEREYE Services, any Content provided by TIGEREYE within a TIGEREYE Service and any Documentation (including all rights therein, and all derivatives, translations, modifications and enhancements thereof). This Agreement is not a sale and does not convey to You any rights of ownership in or related to any TIGEREYE Service, TIGEREYE Content or Documentation. Except as otherwise provided herein, the TIGEREYE name, logo and product names are trademarks of TIGEREYE, and no right or license is granted to You to use them. All rights not expressly granted to You are reserved by TIGEREYE. TIGEREYE shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all of TIGEREYE’s Content.
5.2. Content Use and Licenses.
5.2.1. Your Authorized Use of TIGEREYE Content. In connection with providing a TIGEREYE Service to You, TIGEREYE may provide certain Content to You and You are expressly authorized by TIGEREYE to use TIGEREYE Content within the TIGEREYE Service.
5.2.2. TIGEREYE’s Authorized Use of Your Content. In order for You (and Your Authorized Users) to access and use certain TIGEREYE Services, You (or Your Authorized Users) may wish to link, upload, enter or otherwise provide Your Content. If You do link, upload, enter or otherwise provide Your Content, You hereby grant to TIGEREYE a royalty-free, fully-paid, non-exclusive, non-transferable, non-sublicensable, worldwide right and license to reproduce, distribute, use, process, exploit, transfer and store Your Content solely for the purposes of providing the TIGEREYE Services and otherwise performing TIGEREYE’s obligations under this Agreement and any other activities expressly agreed to by You in writing. Examples of TIGEREYE’s uses for Your Content may include, without limitation: (i) storing, caching and/or backing-up Your Content on TIGEREYE’s servers or on servers of third party service providers acting on TIGEREYE’s behalf; (ii) sharing Your Content and otherwise making Your Content available to Your Authorized Users, and permitting certain designated Authorized Users to modify, erase, copy, download, and share Your Content in accordance with any applicable access privileges; (iii) providing the TIGEREYE Services; and (iv) screening for objectionable information transmitted or shared by an Authorized User within a TIGEREYE Service.
5.2.3. Use Exceptions. In addition to those uses and rights specified in Section 5.2.2 above, TIGEREYE may use Your Content: (i) at Your request, or with Your consent—for example, when providing You with support or addressing a technical issue or other request from You; (ii) in connection with providing and improving a TIGEREYE Service (including maintaining, securing, updating or otherwise modifying TIGEREYE Services); (iii) in connection with legal-related obligations, enforcement, investigations or proceedings (for example, in response to a valid subpoena); and/or (iv) if Your Content has been processed by TIGEREYE in such a way that the data subject is not identifiable and that the information has been aggregated or made generic so that it is not attributable to any specific data subject.
5.2.4. Your Content Reps and Warranties. You represent, warrant, and covenant that: (i) You (or the applicable Authorized User) has and will continue to have all necessary rights to create, post, submit, upload, store, share, and distribute Your Content; (ii) You have all necessary rights to reproduce and download any Content downloaded or copied from a TIGEREYE Service; (iii) the uploading, creating, storing, modifying, erasing, copying, downloading, or sharing of any Content by or on Your behalf does not violate any agreements between You (or Your Authorized Users) and any third party; and (iv) Your Content will not: (a) infringe or violate intellectual property rights of any third party; (b) promote, solicit, or comprise objectionable, inappropriate or unlawful content or activity; or (c) contain any harmful computer code that may damage, detrimentally interfere with any system, data, personal information, or property of another.
5.2.5. Your License to Your Authorized Users. You hereby grant Your Authorized Users a non-exclusive, non-transferable, non-sublicensable right and license to modify, erase, copy, download, share, and otherwise access and use Your Content as permitted by the functionality of the applicable TIGEREYE Service and in accordance with any applicable access privileges.
5.2.6. Third Party Content. Certain TIGEREYE Services may make available Third Party Content to You and Your Authorized Users. In the event the Third Party Content is made available based on your relationship with the Third Party, then you represent, warrant and covenant that you have the right to share such Third Party Content with TIGEREYE and to allow TIGEREYE to make such Third Party Content available to You and Your Authorized Users within the TIGEREYE Service. If, however, the Third Party Content is made available by us and you do not have a contractual relationship with the Third Party, then our ability to make such content available to You and Your Authorized Users will be governed by the applicable Third-Party Terms, if any. In the absence of any such Third-Party Terms, Your use must be (i) limited to the same terms as the TIGEREYE Service for which You received the Third-Party Content, and (ii) solely in connection with Your use of such TIGEREYE Service.
5.2.7. Content Review. In general, TIGEREYE does not screen or review Content that is posted to any TIGEREYE Service or website or otherwise made available to TIGEREYE. TIGEREYE reserves the right, however, to screen and review Your Content, and may block or remove content for any reason, including because it is not in compliance with these Terms (for example, illegal, offensive or phishing-related postings or spam). You (a) are responsible for all of Your Content and for ensuring that Your Content and its use with any TIGEREYE Service complies with all applicable laws and regulations and these Terms, and (b) warrant that Your Content will not infringe or misappropriate any intellectual property or proprietary rights of any person or violate any applicable laws or regulations. TIGEREYE recommends that You secure and protect Your Content by using appropriate encryption and security technology. You acknowledge that online services may suffer occasional disruptions or outages, and You may not be able to retrieve Your Content as a result. TIGEREYE recommends that You regularly backup Your Content to Your own storage. You are at all times responsible for storing and maintaining any such backup copies of Your Content.
6. IP Ownership and Feedback
6.1. IP Ownership. You acknowledge that, with the exception of any of Your Content, TIGEREYE owns and retains all rights, title and interest, including all IP Rights, in and to the TIGEREYE Services, APIs, Metrics, Documentation, and other information or material provided or made available by TIGEREYE to You, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information pertaining thereto or included therein and all intellectual property and proprietary rights of or related to any Professional Services, and nothing in this Agreement shall preclude or restrict TIGEREYE from using or exploiting any concepts, ideas, techniques or know-how of or related to the TIGEREYE Services or otherwise arising in connection with TIGEREYE’s provision of the TIGEREYE Services. The structure and organization, the underlying algorithms and other internals, the protocols, data structures and other externals, and the source code of the TIGEREYE Services and the APIs constitute proprietary and confidential information of TIGEREYE, and You will not disclose such information to third parties, or use such information for any purpose other than as required for ordinary-course access to and use of the TIGEREYE Services as set forth in these Terms, without TIGEREYE’s prior written consent. TIGEREYE may make available or provide access to other confidential and proprietary information (either marked as such or understood to be such under the circumstances). If You receive such information, You will not disclose it to any third party, or use such information for any purpose other than as required for access to and use of the TIGEREYE Services as set forth in these Terms, without TIGEREYE’s prior written consent. Other than as expressly set forth in this Agreement, no license or other rights in or to the TIGEREYE Services are granted to You hereunder and all such rights are hereby expressly reserved.
6.2. Feedback. You have no obligation to provide TIGEREYE with ideas for improvement, suggestions, or other feedback (collectively, “Feedback”). If, however, You provide any Feedback to TIGEREYE, even if such Feedback would otherwise be deemed to be Your Content, You hereby grant to TIGEREYE a non-exclusive, transferable, irrevocable, worldwide, royalty-free license (with rights to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose and otherwise exploit the Feedback and any TIGEREYE Services using the Feedback.
6.3. Anonymized/Aggregated Data. You agree that TIGEREYE may use and exploit, in any manner, on a worldwide, irrevocable, perpetual, royalty-free basis, any aggregated non-personally identifiable information related to any of Your Content in connection with any TIGEREYE products and services. To be clear, We never disclose aggregated and/or anonymized data to any third party in a manner that would identify You as the source of that information.
7. Billing and Payment
7.1. Fees. You will pay all fees set forth in an Order, or as otherwise presented on a TIGEREYE Service, at the time of purchase (“Fees”). Fees may include, without limitation, fees for access to a TIGEREYE Service (“Subscription Fees”), and fees for Professional Services (“Professional Services Fees”). You agree to pay all Fees in accordance with the payment schedule set forth in any applicable Order. Professional Services Fees that are not set forth on the Order will be paid at TIGEREYE’s then prevailing time and materials rates. Usage of a TIGEREYE Service that exceeds Your authorized scope will be paid for by You at TIGEREYE’s then-current rates.
7.2. Payment. TIGEREYE will invoice You in accordance with the terms of the Order. Unless otherwise set forth in the applicable Order: (i) all Subscription Fees will be automatically charged for the applicable Initial Term and each applicable Renewal Term (unless canceled or terminated in a timely fashion in accordance with these Terms or the applicable provisions of the Order) upon the start of the such Initial Term and Renewal Terms; (ii) all Fees are due and payable in United States dollars; and (iii) if any Fees payable are to be invoiced to You, such Fees are due and payable net thirty (30) days after the invoice date, without deduction or setoff. You are responsible for providing complete and accurate credit card, billing and contact information to TIGEREYE and for notifying TIGEREYE of any changes to such information. All payments of Fees are non-cancelable and non-refundable.
7.3. Overdue Charges. Any unpaid Fees will accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. TIGEREYE may (i) accelerate any of Your unpaid Fee obligations under this Agreement so that all such obligations become immediately due and payable and (ii) upon five days’ notice to You, suspend access to and use of any TIGEREYE Service to You and any of Your Authorized Users until such amounts are paid in full. The foregoing will not apply respect to the portion of any unpaid amounts You are disputing in good faith; provided that You are cooperating in good faith with TIGEREYE to resolve such dispute.
7.4. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable against You and your Authorized Users by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If TIGEREYE has the legal obligation to pay or collect Taxes for which You are responsible under this Section 7, TIGEREYE will invoice You and You will pay that amount unless You provide TIGEREYE with a valid tax exemption certificate authorized by the appropriate taxing authority.
7.5. Payment Processing. If You place an Order or make a purchase through a TIGEREYE Service, or otherwise pay any Fees via credit card, TIGEREYE will process Your payment information using a third-party processor for payment services (e.g., card acceptance, merchant settlement and related services). You also hereby consent and authorize TIGEREYE to delegate the authorizations and to share information You provide to TIGEREYE with its third-party processor, to the extent required to provide payment services to You. TIGEREYE may be contacted directly for payments support by email at accounting@tigereye.com.
8. Trials and Beta Testing
8.1. Trial Versions of TIGEREYE Services. TIGEREYE may make available or deliver TIGEREYE Services (or features of a TIGEREYE Service) labeled or offered as “not for resale,” “free,” “evaluation,” “trial,” or another similar designation (collectively, “Trial Versions”). For any Trial Version:
8.1.1. You may download, install, access or use Trial Versions only during the period and for the purpose of the trial, as expressly permitted by TIGEREYE. Notwithstanding anything contained in these Terms or otherwise, (a) TIGEREYE makes no commitments with respect to Trial Versions regarding any features, functions, service levels or data and provides no warranties or indemnities of any kind with respect to Trial Versions; (b) Trial Versions may contain code that is not fully tested, including errors and faults that may cause total data loss or system failure; and (c) TIGEREYE reserves the right, without any further notice, to end any Trial Versions at any time.
8.1.2. ANY DATA OR CONTENT UPLOADED TO A TIGEREYE SERVICE, AND ANY CUSTOMIZATIONS MADE TO ANY CONTENT BY OR FOR YOU, DURING YOUR TRIAL WILL BE PERMANENTLY LOST UNLESS, UPON TERMINATION OR EXPIRATION OF A TRIAL, YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR EXPORT SUCH DATA WITHIN 30 DAYS OF THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER YOUR CONTENT UPLOADED, STORED OR CREATED ON A TIGEREYE SERVICE DURING THE TRIAL TO A SUBSCRIPTION TO A TIGEREYE SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. ACCORDINGLY, IF YOU PURCHASE A SUBSCRIPTION TO A TIGEREYE SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR CONTENT BEFORE THE END OF THE TRIAL PERIOD OR YOUR CONTENT WILL BE PERMANENTLY LOST.
8.2. Beta Testing. From time to time, TIGEREYE may offer a pre-release “Beta” testing opportunity to You of a new Service or feature of a Service, which may be labeled or offered as a “beta test”, “pre-release,” “unpaid pilot” or other similar designation (collectively, “Beta Tests” of “Beta Products”). You may choose to try such Beta Test at Your sole discretion. Beta Tests are intended for evaluation purposes only and not for production use. For any Beta Test:
8.2.1. Fees. TIGEREYE reserves the right to charge fees for use and access to the Beta Products or may provide the Beta Products for no charge. TIGEREYE reserves the right to start charging or revise fee amounts at any time, at its sole discretion, or after the Beta Products are made widely available and/or incorporated into another TIGEREYE Service.
8.2.2.Your Beta Access Rights and Restrictions. For the term of the Beta Test, TIGEREYE grants to You a limited, non-transferable, non-exclusive, revocable right to access and use the Beta Product(s) solely to test its functionality and provide Feedback to TIGEREYE. Nothing in this Section 8.3 obligates TIGEREYE to deliver or make available any copies of computer programs or code from the Beta Product(s) to You, whether in object code or source code form. You may not rent, lease, distribute, or resell the Beta Product(s), or use the Beta Product(s) as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Beta Product(s).
8.2.3.TIGEREYE Beta Rights. TIGEREYE reserves the right, in its sole discretion, to revoke access and use of the Beta Products at any time. Further, TIGEREYE reserves the right to enter (“assume into”) Your Beta Testing account as needed to (i) monitor or measure use of the Beta Product(s); (ii) validate certain features or functionality of the Beta Product(s); and (iii) to provide services or support necessary to maintain the Beta Product(s).
8.2.4.Feedback. Upon reasonable request by TIGEREYE, You agree to provide Feedback regarding the Beta Product(s). TIGEREYE may contact You and You agree to make available a reasonable amount of time to discuss the Beta Product(s) with TIGEREYE. TIGEREYE may without restriction or fee use, modify and incorporate Feedback into the Beta Product(s) and other TIGEREYE products and/or services without any restriction and without any payment.
8.2.5.Beta IP Rights. TIGEREYE maintains and retains all rights, title and interest in and to all its IP Rights and the limited rights granted to You for purposes of Beta Testing to access and use the Beta Product(s) does not convey any additional rights in the Beta Product(s), or in or to any IP Rights associated therewith. Subject only to the limited rights to access and use the Beta Product(s) as expressly provided herein, all rights, title and interest in and to the Beta Product(s) and all hardware, software and other components of or used to provide the Beta Product(s), including all related IP Rights, will remain with and belong exclusively to TIGEREYE.
8.2.6.Content Retention. Upon termination of the Beta Test, You will notify Your users that their access to the Beta Product(s) has terminated, and TIGEREYE may withhold, remove or discard any content, data, or other information that You or Your users post or upload into TIGEREYE’s system while using the Beta Product(s). Following termination or expiration of the Beta Test, TIGEREYE is not obligated to store, maintain or provide a copy of any content, data or other information that You or Your users made available or provided when using the Beta Product(s).
8.2.7.Confidentiality. You agree to keep the existence of the Beta Product(s) and Your participation in any Beta Test strictly confidential and treat such information as TIGEREYE’s confidential information.
8.2.8.Disclaimer of Warranties. THE BETA PRODUCT(S) ARE PROVIDED “AS IS”. TIGEREYE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE BETA PRODUCT(S), INCLUDING ANY REPRESENTATION THAT THE SERVICES THEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, TIGEREYE DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN RESPECT OF THE BETA PRODUCT(S). FOR THE AVOIDANCE OF DOUBT, ALL BETA PRODUCT(S) ARE PRERELEASE, ARE EXPECTED TO CONTAIN DEFECTS WHICH MAY BE MATERIAL, AND ARE NOT EXPECTED TO OPERATE AT THE LEVEL OF PERFORMANCE OR COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE PRODUCT OFFERING. BETA PRODUCT(S) MAY NOT OPERATE ACCURATELY AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO PUBLIC AVAILABILITY OR WITHDRAWN AT ANY TIME. ACCORDINGLY, ACCESS TO AND USE OF THE BETA PRODUCT(S) IS ENTIRELY AT YOUR OWN RISK. IN NO EVENT SHALL TIGEREYE BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE BETA PRODUCT(S), EVEN IF TIGEREYE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF ANY BETA PRODUCT.
8.2.9.No Obligation to Release Beta Product. TIGEREYE may choose not to generally release any Beta Product or convert any Beta Product into a product offering and TIGEREYE reserves the right, without any further notice, to end any Beta Test at any time.
8.2.10. No Liability. TIGEREYE has no liability for any harm or damage arising out of or in connection with Your use of a Beta Product during a Beta Test.
9. Confidentiality
9.1. Use; Maintenance. You or TIGEREYE (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”) in connection with these Terms. The Receiving Party will use the same degree of care as to the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and will (i) use the Confidential Information of the Disclosing Party only in connection with the TIGEREYE Services, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to the Confidential Information of the Disclosing Party to those of its employees, consultants, contractors, service providers, professional advisors and other individuals who need such access for purposes related to a TIGEREYE Service and who are subject to confidentiality obligations with the Receiving Party no less stringent than those in these Terms. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so. The Receiving Party will give the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and take reasonable steps to limit such disclosure. TIGEREYE may also disclose Your Confidential Information to comply with any governmental or regulatory body request (including subpoenas or court orders), as part of a legal proceeding involving TIGEREYE, or at Your request. If disclosure is made at Your request, You may be responsible for the costs of compiling and providing access to Your Confidential Information. In no event will any unauthorized third party access to any of TIGEREYE’s systems or applications constitute a breach by TIGEREYE of this Section 9.
10. Term; Termination; Suspension
10.1. Term. This Agreement commences on the Effective Date, and, unless otherwise terminated, continues indefinitely until all Orders made pursuant to this Agreement have expired or have been terminated.
10.2. Term of Subscriptions. Unless otherwise set forth in the applicable Order, the term of each subscription to an applicable TIGEREYE Service shall be one (1) year (the “Initial Term”), and, upon expiration of the then current term, each subscription to an applicable TIGEREYE Service will renew only in the event both Parties execute a new Order (in which case, subject to the new Order, the “Renewal Term” and all Renewal Terms together with the Initial Term, the “Subscription Term”).
10.3. Termination. Either party may terminate this Agreement for cause: (i) if the other party is in material breach of this Agreement and such breach is not cured within thirty (30) days following such other party’s receipt of written notice of such breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4. Refund or Payment Upon Termination. If this Agreement is terminated by You in accordance with Section 10.3, TIGEREYE will refund You for any prepaid Fees for services not rendered. If this Agreement is terminated by TIGEREYE in accordance with Section 10.3, You will pay any unpaid Fees covering the remainder of the Term of each Order outstanding at the time of such termination. In no event will termination relieve You of Your obligation to pay any Fees payable to TIGEREYE for any period prior to the effective date of termination.
10.5. Data Portability; Retention Policy. Upon Your request made within thirty (30) days after the effective date of termination or expiration of this Agreement, TIGEREYE will make Your Content available to You for export or download. After that 30-day period, TIGEREYE will have no obligation to maintain or provide Your Content and may delete or destroy all copies of Your Content on TIGEREYE’s systems or otherwise in TIGEREYE’s possession or control, unless legally prohibited.
10.6. Effect of Termination; Survival. Upon expiration or termination of this Agreement: (i) all Orders; (ii) all subscriptions granted by TIGEREYE under this Agreement; and (iii) TIGEREYE’s obligation to provide (and Your and all Your Authorized Users’ rights to access and use) any TIGEREYE Services will terminate. Upon expiration or termination of a subscription to a TIGEREYE Service for any reason, Your rights with respect to that TIGEREYE Service will end. At that time, You will stop all access to and use of that TIGEREYE Service (including all access and use by Your Authorized Users). Sections 5, 6, 7, and 9 through 14 will survive any such expiration or termination of this Agreement.
10.7. Suspension. If TIGEREYE believes in good faith that Your Content or Your conduct or failure to act (including the conduct or failure of Your Authorized Users) may (i) pose a security risk or otherwise adversely impact a TIGEREYE Service, systems or other users; (ii) constitute or enable tampering with, removing, disabling or otherwise limiting the effectiveness of any technical protections (including any mechanisms for managing, monitoring, controlling or analyzing the installation of, access or, or use of any TIGEREYE Service or protections of TIGEREYE’s IP Rights); (iii) subject TIGEREYE, any reseller or any other user to liability; or (iv) not comply with these Terms, including failure to pay any amounts owing with respect to any TIGEREYE Service, TIGEREYE has the right, but not the obligation, to immediately disable or suspend Your (and Your Authorized Users’) access to and use of any TIGEREYE Service and access to and use of Your Content. Unless TIGEREYE reasonably determines that immediate action is prudent, TIGEREYE will seek to notify You of the planned disabling or suspension before it takes effect.
11. WARRANTIES; DISCLAIMERS
11.1. Limited Warranty. TIGEREYE warrants that, for any paid subscription, as of the date on which the subscribed-for TIGEREYE Service is made available to You and for thirty (30) days thereafter or, if the subscription period is shorter, such shorter period (the “Warranty Period”), the applicable TIGEREYE Service will provide the general features and functions described in the end-user Documentation for the Offering. TIGEREYE’s entire obligation and liability, and Your sole and exclusive remedy, for TIGEREYE’s breach of this limited warranty will be for TIGEREYE, at its option, (i) to attempt reasonably to remedy the breach or (ii) to refund amounts received for the affected subscription and terminate such subscription. You must bring any warranty claim for any TIGEREYE Service within its applicable Warranty Period.
11.2. Disclaimer. EXCEPT AS EXPRESSLY WARRANTED HEREIN, TIGEREYE DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO ANY TIGEREYE SERVICES AND TIGEREYE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS RELATED THERETO. THE TIGEREYE SERVICES MAY BE SUBJECT TO, AND TIGEREYE IS NOT RESPONSIBLE FOR, LIMITATIONS, RISKS, AND OTHER PROBLEMS INHERENT IN ELECTRONIC COMMUNICATIONS, AND, EXCEPT AS EXPRESSLY WARRANTED HEREIN, TIGEREYE DOES NOT REPRESENT OR WARRANT THAT THE TIGEREYE SERVICES OR ANY USER CONTENT WILL BE OR REMAIN AVAILABLE, TRUE, COMPLETE, ACCURATE OR ERROR FREE. TIGEREYE DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR ASSURANCES WITH RESPECT TO ANY USER CONTENT OR ANY INTERCEPTION OR ACCESS OR USE OF ANY INFORMATION, INCLUDING YOUR CONTENT BY ANY USER, AND TIGEREYE IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED ACTS RESULTING IN LOSS OF OR DAMAGE TO YOUR CONTENT OR OTHER PROPERTY IN CONNECTION WITH YOUR OR ONE OF YOUR AUTHORIZED USER’S USE OF THE TIGEREYE SERVICES.
11.3. TIGEREYE Services are Tools. The TIGEREYE Services are tools and are intended only to assist You with Your analysis, estimation, evaluation, projections, testing and other activities and are not a substitute for Your professional judgment or Your own independent analysis, estimation, evaluation, projections, testing or other activities. TIGEREYE will not be responsible or liable in any manner whatsoever for the results obtained through use of the TIGEREYE Services. You are responsible for Your (including Your Authorized Users’) use of the TIGEREYE Services and any results produced by the TIGEREYE Services. You further acknowledge that the TIGEREYE Services may not achieve the results You desire within Your analysis, estimation, evaluation, projections, testing and other constraints.
11.4. TIGEREYE Services are Not Designed to Store Sensitive Personal Information. The data storage functionality associated with the TIGEREYE Services is NOT suitable for the storage of Social Security numbers, credit or debit card numbers, financial account numbers, driver’s license numbers, medical information or health insurance information; data about personal characteristics or other personal information, such as race or ethnic origin, religion or philosophical beliefs, political affiliation or opinions, genetic or biometric data, sexual orientation or trade union membership; or other information that may expose, or pose a risk of harm to, an individual if improperly disclosed or used (collectively, “Sensitive Personal Information”). Except as expressly required by TIGEREYE (for example, a credit card number used to purchase a subscription), You will not upload or otherwise make available to TIGEREYE any Sensitive Personal Information, including any files containing Sensitive Personal Information, in connection with Your use of any TIGEREYE Service.
12. LIMITATION OF LIABILITY
12.1. Limitations. IN NO EVENT WILL TIGEREYE, ITS SUPPLIERS OR LICENSORS, OR YOU, BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE A TIGEREYE SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF TIGEREYE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS OTHERWISE SPECIFIED IN THESE TERMS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO AN ORDER OR THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES FOR THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS ACCRUED OR ACCRUING UNDER THIS AGREEMENT.
12.2. Limitations Subject to Applicable Laws. The limitations on liability in these Terms will apply to the maximum extent permitted by applicable law to any damages or other liability, however caused and regardless of the theory of liability, whether based on contract, tort (including negligence and strict liability), indemnification, recourse, statute or otherwise, even if TIGEREYE has been advised of the possibility of the liability and regardless of whether the limited remedies in these Terms fail of their essential purpose. TIGEREYE does not seek to limit Your warranties, Your other rights and remedies, or the liability of TIGEREYE for damages or losses to the extent the limits are not permitted by applicable law (such as statutory warranties, conditions, remedies or liabilities that cannot be excluded by applicable law). Nothing in these Terms restricts the effect of warranties, the liability of TIGEREYE for damages or losses or other terms that cannot be excluded or otherwise modified under applicable law notwithstanding a contractual restriction to the contrary. These Terms give You specific legal rights, and You may also have other legal rights, which vary from jurisdiction to jurisdiction. For example, some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to You.
12.3. Limitations Central to Agreement. You acknowledge that the amounts payable for the TIGEREYE Services are based in part on and reflective of the disclaimers of warranties and limitations on liability in these Terms and that such disclaimers and limitations are an essential element of the bargain between You and TIGEREYE.
12.4. Exceptions. Nothing in these Terms purports to restrict or exclude TIGEREYE’s liability for (i) death or personal injury caused by TIGEREYE’s willful intent or gross negligence or (ii) Your damages or losses caused by TIGEREYE’s fraud.
13. Indemnification
13.1. By TIGEREYE. Subject to Section 13.3, TIGEREYE shall: (a) defend Customer, its officers, directors, and employees against any third party suit, claim, or demand (each a “Claim”) that alleges the applicable TIGEREYE Service used in accordance with this Agreement and the applicable Order infringe any issued patent, copyright, trademark or misappropriate any trade secret of, such third party; and (b) pay any court-ordered award of damages or settlement amount which may include any expense, liability, loss, damage, costs or reasonable attorneys’ fees, each to the extent payable to a third party, to the extent arising from such Claims. Notwithstanding the foregoing, if TIGEREYE reasonably believes that Your use of any portion of the applicable TIGEREYE Service is likely to be enjoined by reason of any Claims then TIGEREYE may, at its expense and in its sole discretion: (i) procure for You the right to continue using the applicable TIGEREYE Service; (ii) replace the same with other products having substantially equivalent functions that are not subject to any Claims of infringement; or (iii) modify the applicable TIGEREYE Service so that there is no longer any infringement, provided that such modification does not materially and adversely affect the functional capabilities of the applicable TIGEREYE Service as set out herein or in the applicable Order. If (i), (ii), and (iii) above are not available on commercially reasonable terms in TIGEREYE’s judgment, TIGEREYE may terminate the applicable TIGEREYE Service and refund to You the fees paid by You covering the remaining portion of the applicable Subscription Term for the applicable TIGEREYE Service after the date of termination. The foregoing indemnification obligation of TIGEREYE shall not apply: (1) if the applicable TIGEREYE Service is modified by any party other than TIGEREYE (or someone acting at TIGEREYE’s direction), but solely to the extent the alleged infringement is related to such modification; (2) if the applicable TIGEREYE Service is combined with other non-TIGEREYE products, applications, or processes not authorized in writing by TIGEREYE, but solely to the extent the alleged infringement is related to such combination; (3) to the extent the Claim arises in connection with any unauthorized use of the applicable TIGEREYE Service, or use that is not in compliance with any applicable laws, regulations, and/or Documentation; (4) to any third party products, processes or materials that are not provided by TIGEREYE; or (5) to any Claims arising as a result of Your Content. TIGEREYE’S MAXIMUM AGGREGATE LIABILITY ARISING UNDER THIS SECTION 13.1 SHALL BE AN AMOUNT EQUAL TO TWO TIMES THE FEES PAID BY YOU FOR THE 12 MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM. THIS SECTION 13.1 STATES THE ENTIRE LIABILITY OF TIGEREYE, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY TIGEREYE, THE TIGEREYE SERVICES, OR ANY PART THEREOF.
13.2. By You. Subject to Section 13.3, You shall: (a) defend TIGEREYE, its officers, directors, and employees against any Claim that arises from Your Content; and (b) pay any court-ordered award of damages or settlement amount which may include any expense, liability, loss, damage, costs, or reasonable attorneys’ fees, each to the extent payable to a third party, to the extent arising from such Claims. Your indemnification obligation shall not apply: (1) if Your Content is modified by TIGEREYE or by any party under TIGEREYE’s control, without Your authorization but solely to the extent the Claim is caused by such modification or (2) if the Claim arises as a result of any use or disclosure of the Your Content by TIGEREYE not contemplated by this Agreement.
13.3. Process. Each party’s indemnity obligations are subject to the following: (i) the indemnified party shall promptly notify the indemnifier in writing of any Claims (provided, however, that the failure to give prompt written notice shall not limit the rights to indemnification except to the extent that the indemnifier is materially prejudiced by such failure); (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to any Claims (provided that the indemnifier may not settle any Claims that require the indemnified party to admit any civil or criminal liability or incur any financial obligation without the indemnified party’s consent, which consent shall not be unreasonably withheld); and (iii) the indemnified party shall cooperate fully to the extent necessary at the indemnifier’s cost in such defense and settlement.
14. General
14.1. Modifications to the TIGEREYE Services. TIGEREYE may update the content, functionality, and user interfaces of the TIGEREYE Services from time to time. Although TIGEREYE may substitute substantially equivalent features, TIGEREYE will not materially reduce the functionality of a given TIGEREYE Service. Notwithstanding anything herein to the contrary, TIGEREYE may exercise planned obsolescence for any features, functionality or availability of an TIGEREYE Service and Your purchases are not contingent on the delivery of any future functionality or features regardless of any oral or written public comments made by TIGEREYE regarding future functionality or features.
14.2. Modifications to these Terms. To the maximum extent permitted by applicable law, TIGEREYE reserves the right from time to time to (and You acknowledge that TIGEREYE may) modify these Terms. TIGEREYE will endeavor to notify You of any material modification to the Terms that may have a materially adverse effect on You (“Modification Notice”), and You will then have an opportunity to review such modification. Except as otherwise expressly set forth in these Terms, if any such modification has a material adverse effect on You and You do not agree to the modification, You may reject the modification by notifying TIGEREYE of the rejection within 30 days of the Modification Notice. If You reject a modification under these circumstances, (i) Your access to and use of any TIGEREYE Service affected by the modification will continue to be governed by the terms in effect immediately before the modification (except to the extent the modification was made for security, privacy or legal compliance reasons) until (a) the end of the then-current period for the subscription of the applicable TIGEREYE Service, if applicable; and (ii) Your rights to such TIGEREYE Service will then terminate. In the event of such a termination by You, TIGEREYE (or an applicable reseller) will refund the prorated portion of any prepaid fees applicable to the remaining term of Your subscription for the affected TIGEREYE Service after the effective date of termination. Such date will be the end of the term of such TIGEREYE Service. If the subscription is renewed or extended, it will be under the then-current Terms. Notices by You or TIGEREYE will be provided as set forth below, except that You may also provide Your notice of rejection (within the 30-day period described above) to the email address, or in any other manner, specified in the Modification Notice. Notwithstanding the forgoing, modifications to the Privacy Statement or other policies will be handled as described therein. You acknowledge that Your commitments with respect to the TIGEREYE Services are not contingent on delivery of future features or functionality (or oral or written statements about future features or functionality).
14.3. Publicity. During the Subscription Term, You grant TIGEREYE the right to identify You as a customer of the applicable TIGEREYE Service, including using Your logo, solely in marketing materials and on TIGEREYE’s website. Neither party shall issue any press release regarding this Agreement without the prior written consent of the other party.
14.4. Notices. All notices, requests, demands, waivers, consents and other communications hereunder will be in writing and will be served by personal service, certified or registered mail or confirmed electronic transmission and sent to the address of the receiving party as specified below and shall be deemed complete upon receipt. Any notices by You to TIGEREYE shall be sent by postal mail or delivery service to 2370 Market St, Suite 401, San Francisco, CA, 94114. Except as otherwise expressly stated in these Terms, any notices by TIGEREYE to You will be provided (i) by email to the registered email address associated with Your account, (ii) by posting to Your account, (iii) by posting within an applicable TIGEREYE Service (for example, through a sign-in notification), (iv) by postal mail or delivery service to the address associated with Your Customer Account, or (v) in any other manner deemed reasonable by TIGEREYE that involves specific notification to You. Notices from TIGEREYE to You will, (a) in the case of notices by email, be deemed to be received one day after being sent and (b) in the case of other notices, five days after being posted or sent. You hereby agree to service of process being effected on You by registered mail sent to the address set forth on Your Customer Information Form (or, if no Customer Information Form has been provided, Your last address known by TIGEREYE) if so permitted by applicable law.
14.5. Assignment. Neither party may assign this Agreement, by operation of law or otherwise, without the other party’s prior written approval; provided, however, that a party may assign its rights and obligations under this Agreement, without the approval of the other party, to: (a) an entity that acquires all or substantially all of the assets of the assigning party; or (b) any subsidiary or Affiliate of the assigning party or successor in a merger or acquisition (whether by operation of law or otherwise) involving the assigning party; provided, further that for any permitted assignment by a party, the assigning party will provide the non-assigning party with written notice of such assignment and that the party receiving the assignment assumes all of the performance obligations and liabilities of the assigning party. Any attempted assignment in violation of the foregoing will be null and void. Your payment obligations hereunder cannot be transferred to any third party without the assignment of this Agreement to such third party. Subject to TIGEREYE’s prior consent, You may assign this Agreement to one of Your Affiliates, in connection with the transfer of Your payment obligations, and You hereby consent to any such assignment.
14.6. Governing Law; Venue. This Agreement will be governed by California law, without regard to conflicts of law provisions. Neither the U.N. Convention of Contracts for the International Sale of Goods nor UCITA will apply. Any dispute arising out of or relating to this Agreement shall be exclusively brought in the state and federal courts located in San Francisco County, CA. Each party hereby consents to the exclusive jurisdiction and venue of such courts.
14.7. DMCA. TIGEREYE complies with the provisions of the Digital Millennium Copyright Act of 1998 (the “DMCA”) applicable to Internet service providers (17 U.S.C. §512, as amended). The DMCA provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If You have any intellectual property rights-related complaint about material posted on an TIGEREYE Service, please review our Copyright Policy attached hereto as Exhibit A.
14.8. Remedies. You acknowledge that aspects of each TIGEREYE Service contain TIGEREYE’s valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to TIGEREYE for which monetary damages would be inadequate, and that TIGEREYE seeking injunctive relief is an appropriate remedy in the event of a breach.
14.9. Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of an TIGEREYE Service. Neither party shall have any authority to contract for or bind the other party in any manner whatsoever.
14.10. Language. The English language version of these Terms will be the version used when interpreting or construing these Terms, and any notices or other communications in connection with these Terms will be provided in the English language. Any reference in these Terms to “days” are to calendar days unless otherwise specified. The words “including” and “for example” or “e.g.,” and words of similar import, are not limiting or exclusive and will be deemed followed by “without limitation,” whether or not such language is included. Section and other headings are for ease of reference only and are not to be used to interpret the meaning of any provision. Any rights and remedies provided for in these Terms are cumulative and are in addition to, and not in lieu of, any other rights and remedies available under applicable law.
14.11. Compliance. TIGEREYE has the right to verify (electronically or otherwise) Your access to, and use of any TIGEREYE Service, including access and use by Your Authorized Users. If TIGEREYE determines that Your access or use is not in conformity with these Terms, You will promptly remedy the noncompliance, which may include purchasing valid subscriptions to bring Your usage into compliance, and pay the reasonable costs of the verification. TIGEREYE reserves the right to seek any other remedies available at law or in equity.
14.12. Export Compliance. You acknowledge that aspects of the TIGEREYE Service may be subject to U.S. and foreign export and import restrictions. You will not and will not allow any export or re-export of any part of the TIGEREYE Service, or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations. You agree to the foregoing and warrant that You are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The TIGEREYE Services are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
14.13. Waiver; Amendment; Severability. A party’s failure to enforce any provision in this Agreement will not constitute a waiver unless in writing and signed by the party against which the waiver is asserted. No amendment hereof will be effective unless in writing and signed by both parties. If any provision of this Agreement is unenforceable, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible and the remaining provisions will continue in full force and effect.
14.14. Your Purchase Orders. These Terms will prevail over any inconsistent terms or conditions contained in, or referred to in, Your form purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. No addition to, variation of, exclusion or attempted exclusion of any of these Terms shall be binding on TIGEREYE unless in writing and signed by a duly authorized representative of TIGEREYE.
14.15. Local Use Decisions. TIGEREYE will not provide You with any legal advice regarding compliance with data privacy or other relevant laws, rules or regulations in the jurisdictions in which You access and use the TIGEREYE Services (“Laws”). The parties acknowledge and agree that not all features, functions and capabilities of the TIGEREYE Services may be used in all jurisdictions and You recognize that certain features, functions and capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local law, and in certain jurisdictions consents may need to be obtained from individuals submitting data via the TIGEREYE Services as to the intended purpose, storage, distribution, access and use of the data submitted (“Local Use Decisions”). You are responsible for Local Use Decisions and TIGEREYE disclaims all liability for Local Use Decisions.
14.16. Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including acts of God, earthquakes, fires, floods, pandemics, sanctions, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the internet or third party internet connections or infrastructure, power failures, acts of civil and military authorities and severe weather (“Force Majeure”). The affected party will give the other party prompt written notice (when possible) of the failure to perform and use its reasonable efforts to limit the resulting delay in its performance.
14.17. Entire Agreement. These Terms together with any Order and exhibits hereto (as well as the Additional Terms specified in Section 14.18 below, which are incorporated by reference) form the entire Agreement between You and TIGEREYE regarding the subject matter hereof. It supersedes all prior or contemporaneous negotiations or agreements between the parties regarding its subject matter. Any preprinted terms on any of Your purchase orders will have no effect on the terms of this Agreement and are hereby rejected. There are no third-party beneficiaries to this Agreement. For the avoidance of doubt, unless a user accepts these Terms, such user will not be deemed to be an Authorized User and will not be granted any rights under this Agreement.
14.18. Additional Terms; Order of Precedence. Your use of an applicable TIGEREYE Service is subject to the following additional terms, policies, rules, or guidelines (the “Additional Terms”): (A) Copyright Policy (Exhibit A); (B) Data Security Policy (Exhibit B); and (C) Privacy Statement. All Additional Terms are incorporated by this reference into, and made a part of, these Terms and form a part of the Agreement. In the event of a conflict between these Terms, any Orders and any Additional Terms, the order of precedence shall be as follows: (i) each Order; (ii) the Additional Terms; and (iii) these Terms.
15. Definitions
15.1. “Account Administrator” means (A) You if You are an individual or (B) if You are an entity, either (i) a designated employee, consultant or contractor or (ii) TIGEREYE (if you elect to use TIGEREYE as Your Account Administrator, TIGEREYE will do so in accordance with Your express directions or instructions and TIGEREYE will have no liability to You where it has followed your directions or instructions). In each case, the individual acting as Account Administrator will have the permission via the TIGEREYE Service to add and control access rights for Authorized Users that the Account Administrator designates.
15.2. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
15.3. “Authorized User” means a user of a TIGEREYE Service who is (A) authorized by the Account Administrator to access and use Your Customer Account under an applicable TIGEREYE Service paid for by You, (B) subject to and bound by these Terms, and (C) subject to and bound by the User Terms of Use. Authorized Users may be You if You are an individual and may be Your employees, consultants and contractors whom You have authorized to be users for Your benefit if You are an entity. You will be responsible for providing notice to, and obtaining agreement from, any such Authorized Users regarding the application of these Terms to their access to and use prior to their access and use.
15.4. “Confidential Information” means information not generally known to the public that is (i) made available or disclosed by a Disclosing Party to a Receiving Party in writing and (ii) designated by the Disclosing Party in writing as Confidential. Without limiting the foregoing, TIGEREYE Confidential Information also includes the non-public aspects of (X) any TIGEREYE Service and any related product or future product plans, technology and other technical information and (Y) business negotiations. Notwithstanding anything to the contrary herein, Confidential Information does not include (a) any information that (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party before receipt from the Disclosing Party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party as shown by the Receiving Party’s contemporaneous records; (3) is lawfully received by the Receiving Party from a third party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party; or (4) was independently developed by the Receiving Party without breach of an obligation owed to the Disclosing Party; (b) any of Your Content that You send to, or allow to be accessed by, a third party through a TIGEREYE Service; or (c) any Feedback.
15.5. “Content” means any content, including but not limited to, financial information, sales information, target market information, salesperson information, customer information, documents, annotations, notes and written or electronic works of authorship.
15.6. “Customer Account” means the password protected account for each paid subscription You have to a TIGEREYE Service, pursuant to which the Account Administrator grants access to Your Authorized Users.
15.7. “Documentation” means the online or printed instructions and instructional, informational, or support documentation TIGEREYE provides for use in connection with or regarding an TIGEREYE Service, currently made available upon request to support@tigereye.com.
15.8. “Effective Date” means: (i) in the case of a Trial or Beta Test, the date on which You sign up to use a TIGEREYE Service; (ii) in the case of Your initial purchase of a subscription to a TIGEREYE Service via an Order submitted electronically, the date You submit such Order; or (iii) in the case of Your initial purchase of a subscription to a TIGEREYE Service other than through an electronic submission (i.e., in writing), the effective date set forth on such Order or, in the absence of such date, the last date on which the Order is signed by a party.
15.9. “IP Rights” means all rights, title and interest in and to all patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
15.10. “Metrics” means data and other information regarding access to and use of any TIGEREYE Services (including Your and Your Authorized Users access and use) as well as other access and use data to third party services You have granted TIGEREYE rights to access and view. Metrics includes information regarding usage of features, functions, storage and indexes and information regarding usage, volume, type, storage and processing of Your Content (but not Your Content itself). If Metrics includes any personal information, treatment of such personal information will be pursuant to TIGEREYE’s Privacy Statement located at www.tigereye.com/privacy.
15.11. “Professional Services” means any implementation, configuration, and/or training, services to be provided by TIGEREYE to You in connection with Your subscription to an applicable TIGEREYE Service pursuant to an Order.
15.12. “Terms” (including “these Terms”) means these General Terms and Conditions of Use and the other terms referenced in these Terms, including the TIGEREYE Privacy Statement together with any other applicable terms.
15.13. “TIGEREYE Service(s)” means TIGEREYE’s SaaS-based services identified in an Order and any mobile application products or publicly accessible websites provided or made available by TIGEREYE.
15.14. “Third Party Content” means Content that originates from parties other than TIGEREYE or its users, which is made available in connection with a TIGEREYE Service.
15.15. “Updates” means security fixes, hot fixes, patches and other updates (including new features, new functions and other modifications released between Upgrades), if and when made available to You by TIGEREYE and determined by TIGEREYE to constitute an update.
15.16. “Upgrades” means new versions of a TIGEREYE Service, or add-ons to or additional products associated with an TIGEREYE Service, if and when made available to You by TIGEREYE and determined by TIGEREYE to constitute an upgrade.
15.17. “Your Content” means Content submitted or uploaded to any TIGEREYE Service by You or Your Authorized Users and Your specific output generated from the use of any TIGEREYE Service based on Your own raw data or information (it being understood and agreed that Your Content does not include any data or other information generated by TIGEREYE through any automated data analysis, processing or other normal operations of an TIGEREYE Service).
Exhibit A
Copyright Policy
We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on a TIGEREYE Service, you may contact our Designated Agent at the following address: Attn: Copyright Agent TIGEREYE Inc; Email: support@tigereye.com. Any notice alleging that materials hosted by or distributed through the TIGEREYE Services infringe intellectual property rights must include the following information:
Repeat Infringers. TIGEREYE will promptly terminate the access rights of Authorized Users that are determined by TIGEREYE to be repeat infringers and may terminate Customer Accounts if a given customer is determined by TIGEREYE to be a repeat infringer.
Exhibit B
Data Security Policy
TIGEREYE will exercise diligence efforts to comply with the data security requirements set forth below (the “Data Security Policy”), during the term of the Agreement. All terms not defined in this schedule shall have the definitions as set forth in the General Terms of Use.
1. Customer Data – Protection and Non-Disclosure. TIGEREYE shall safeguard Customer Content and any data or information stored on the TIGEREYE Services on Customer’s behalf (“Customer Data”) in accordance with this Data Security Policy (and the confidentiality obligations set forth in the Agreement, as applicable), and will not disclose, transfer or use any such information for any purpose other than as permitted in this Agreement or otherwise to perform its obligations under this Agreement.
2. System Protection & Recovery. TIGEREYE will protect its servers hosting Customer Data against outages using standard SaaS industry methods designed to prevent outages and minimize impacts during any unavoidable service interruptions, including: (i) instituting UPS protection, automatic backups, and fire suppression protection of its computer systems; and (ii) implementing and regularly testing a disaster recovery or business continuity plan for its facilities where Customer Data is stored.
3. Data Security. TIGEREYE will maintain the following basic security requirements during the term of the Agreement: (i) install and maintain a working network firewall to protect data accessible via the Internet; (ii) encrypt all data sent across open networks; (iii) keep security patches up-to-date; (iv) ensure up-to-date anti-virus software is used on all employee laptops; (v) ensure no manufacturer-supplied defaults for system passwords are used; (vi) mandate the use of “strong passwords” for all TIGEREYE employees accessing Customer Data in production environments; (vii) regularly test security systems and processes; (viii) maintain a policy that addresses information security for TIGEREYE employees and suppliers; (ix) restrict access to systems containing Customer Data; (x) restrict remote access to TigerEye’s internal network and employ remote access controls to verify the identity of users connecting; and (xi) protect on-site and off-site backups from unauthorized access during transit and storage.
4. Secure Data Transmission. TIGEREYE will use the following mechanisms for the protection of Customer Data transmission:
(i) XML/HTTP over SSL, with certificate-based authentication utilizing a 2048-bit (or larger) RSA public key, and 128-bit (or stronger) symmetric encryption;
(ii) digitally signed and encrypted S/MIME messages over HTTP or SMTP, using certificates with a 2048-bit (or larger) RSA public key, and 128-bit (or stronger) symmetric encryption;
(iii) digitally signed and encrypted PGP (Pretty Good Privacy) or GPG (Gnu Privacy Guard) messages over a variety of transports, with 2048-bit (or larger) RSA or DH/DSS public keys, and 128-bit (or stronger) symmetric encryption;
(iv) for all message-based encryption schemes employing digital signatures (including PGP and S/MIME), TIGEREYE will verify the digital signature of the message and reject messages with invalid signatures; and
(v) For all encryption schemes employing public key cryptography, TIGEREYE will maintain the confidentiality of the private component of the public-private key pair, and will promptly notify Customer in the event that the private key is compromised.
5. Security Incidents.
5.1. Security Incident Notification. TIGEREYE will inform Customer within 72 hours of detecting any unauthorized access, collection, acquisition, use, transmission, disclosure, corruption or loss of Customer Data, or breach of any environment: (i) containing Customer Data; or (ii) managed by TIGEREYE with controls substantially similar to those protecting Customer Data (each, a “Security Incident”).
5.2. Remediation. TIGEREYE will remedy any Security Incident in a timely manner and provide Customer written details regarding TIGEREYE’s internal investigation regarding any Security Incident.
5.3. Formal Notification. Other than as required by applicable law, TIGEREYE agrees not to notify any regulatory authority, nor any customer, on behalf of Customer unless Customer specifically requests in writing that TIGEREYE does so and Customer reserves the right to review and approve the form and content of any notification before it is provided to any party. TIGEREYE will cooperate and work together with Customer to formulate and execute a plan to rectify all confirmed Security Incidents.
