WEBSITE SERVICES AND CLOUD STORAGE
LICENSE AGREEMENT
This Website Services and Cloud Storage License Agreement (the Agreement) is a legal agreement between you (either an individual or on behalf of a single entity) and Digital Ally, Inc. ( Digital Ally) applicable to your use of the Website Services licensed in conjunction with your subscription to the VUVAULT.COM®, FleetVu-Manager, and/or the EVO Web programs, ( Program) which includes all Digital Ally software, firmware, and their associated printed and online documentation, any applications and utilities you select and use, and the hosting and all other services provided through Digital Ally™s Program Website operations ( Services).
ALL SERVICES ACCESSED THOUGH THIS WEBSITE ARE EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS OF THIS SEPARATE AGREEMENT, AS MAY BE PERIODICALLY UPDATED, AND YOUR TIMELY PAYMENT OF ALL APPLICABLE FEES FOR THE SERVICES AND THE UNITS IN ACCORDANCE WITH THE TERMS OF YOUR DIGITAL ALLY PROGRAM DOCUMENTS.
NO SIGNATURE IS NECESSARY TO BE BOUND TO THIS AGREEMENT. INSTEAD, BY CLICKING I ACCEPT ONLINE, OR BY USING ANY OF THE SERVICES OFFERED BY, LICENSED, LEASED OR PURCHASED FROM, OR DISTRIBUTED OR ADMINISTERED BY, DIGITAL ALLY, INC., YOU (ON BEHALF OF YOURSELF, OR AS AN AUTHORIZED REPRESENTATIVE OF ANOTHER INDIVIDUAL OR ENTITY) HEREBY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH DIGITAL ALLY REGARDING THE USE OF THE SERVICES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
THE EFFECTIVE DATE OF THIS AGREEMENT IS THE EARLIER OF THE DATE ON WHICH YOU ACCEPT THIS AGREEMENT BY CLICKING ON THE I ACCEPT BUTTON ONLINE, OR THE DATE THAT YOU OTHERWISE BEGIN USING THE SERVICES.
IN THE EVENT OF ANY CONFLICT BETWEEN THIS AGREEMENT AND ANY PROVISION(S) OF ANY ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO YOUR PURCHASE OR LEASE OF GOODS AND SERVICES FROM US, THE LATTER TERMS SHALL GOVERN, AND THIS AGREEMENT SHALL NOT BE CONSTRUED TO ALTER SUCH ADDITIONAL TERMS AND CONDITIONS.
In this Agreement, you and Digital Ally are sometimes referred to individually as a Party and collectively as the Parties. The terms you, your, yours, and Customer refer to the customer using the Services, including your employees, agents, any person or entity you represent, or any person or entity you permit or allow to use the Services. The terms we, us, our or words of similar import refer to Digital Ally, the licensor. The term Website refers to any and all Digital Ally websites that you access and use.
Digital Ally reserves all rights not expressly granted to you in this License Agreement. The Services are protected by copyright and other intellectual property laws and treaties. Digital Ally owns the title, copyright, and other intellectual property rights in the Services. The Services are licensed, not sold.
1. GRANT OF LICENSE TO ACCESS AND USE THE SERVICES. During the term of this Agreement and subject to the terms and conditions herein, we hereby grant to you a limited, non-exclusive, non-transferable, non-sub-licensable license to access your Website Account and to use the Services that you have selected and paid for ( License) as part of the Program.
2. OWNERSHIP OF THE SERVICES PROVIDED BY DIGITAL ALLY. The Services, and all content, information and services provided by us on the Website, including, but not limited to, trademarks and logos, designs, text, graphics, videos, sounds, images, software, and other website materials or other asset provided under this License and Agreement, and all modifications and enhancements thereof ( Digital Ally Materials), are the intellectual property of Digital Ally, its successors, assigns, licensors, or other vendors. The Digital Ally Materials are protected by United States and foreign intellectual property laws. Except as stated herein, none of the Digital Ally Materials may be copied, reproduced, or distributed in any form without our prior written permission. You warrant that you will not infringe upon or violate, and will take appropriate steps and precautions for the protection of, the Digital Ally Materials, Services and related intellectual property rights of Digital Ally referred to in this Section 2. Any suggestions, comments, improvements, ideas or other feedback submitted by you regarding our products and services (collectively, Feedback), shall be, and are hereby deemed to be, our sole property, and you irrevocably assign all right, title and interest in and to the Feedback to us. We will have no obligation to use, return or preserve any Feedback, or to treat any Feedback as confidential. We will exclusively own any improvements or modifications to the Services based on or derived from any Feedback, including all intellectual property rights therein.
3. OWNERSHIP OF CUSTOMER INFORMATION. Customer Information is the content which you transmit to your account on the Program Website ( Website Account), including the audio and video transmissions and meta data recorded by you on our event recording hardware ( Units). Customer Information is your exclusive property, including any related intellectual property rights. You are solely responsible for (i) the development, maintenance, use, and retention of your Customer Information in contracting for and using the Services during the Term; (ii) preserving and backing up Customer Information during and beyond the Term; (iii) complying with the terms of this Agreement and all applicable laws, including copyright laws and import and export control laws and regulations, (iv) any claims relating to your Customer Information and its use, including claims by third parties; and (v) for insuring that you or your licensors own all right, title, and interest in and to the Customer Information. We may use, access, and retain Customer Information in order to provide the Services to you and enforce the terms of this Agreement, and you grant to us all authority we require to perform this Agreement and provide you with the Services. This authority includes, for example, to arrange for you to store your Customer Information in a cloud based system, copy Customer Information for backup purposes, organize Customer Information for you, including to enable you to access your Customer Information in different formats, and to access Customer Information to provide technical support. The Digital Ally Privacy Policy provides more information on how we collect and use data we receive on the Website, which you can view on the Program website. Customer Information compiled by us from rendering the Services will be retained as long as a legitimate business need exists to do so, in our sole discretion.
4. ADMINISTRATOR; AUTHORIZED USERS. You agree to authorize a Primary Administrator to oversee this Agreement and the use of this License, and will provide the name and contact information for the Primary Administrator to us to further communications between you and us, and you agree to update the name and contact information of the Primary Administrator promptly should such information change. Subject to the Program options that you have selected and paid for in your Subscription ( Options), you may authorize other individuals in your employ or retained by you as independent contractors (collectively, with Primary Administrator, Authorized Users) to use the License issued to you under this Agreement, provided that you agree to be responsible for the Authorized Users’ compliance with this Agreement. If you are required to take any action, or prohibited from taking any action, under this Agreement, such requirements or prohibitions equally apply to all Authorized Users. Other than as expressly permitted by this Agreement, you may not transfer or sublicense the License to any third party, in whole or in part, in any form, whether modified or not.
5. LICENSE RESTRICTIONS. You agree not engage in any of the following prohibited acts: (i) willfully tamper with the security of any of the Services; (ii) log into an unauthorized server or a third party’s Website Account without authorization; (iii) attempt to probe, scan or test the vulnerability of any of the Services or to breach our website security or authentication measures without proper authorization from us; (iv) willfully render unusable any part of the Services; (v) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of any of the Services; (vi) modify, translate, or create derivative works based on any of the Services; (vii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit any of the Services, or make any Services available to a third party other than as contemplated in this Agreement; (viii) publish or disclose to third parties any evaluation of the Services without Digital Ally’s prior written consent; (ix) remove, modify, or obscure any copyright, trademark, patent or other proprietary notice that appears on the Website; (x) supply untruthful or inaccurate information to us; (xi) send to, or store in, your Website Account, Customer Information containing any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; (xii) use the Services except as permitted by this Agreement; (xiii) use the Services for any unlawful purpose or in violation of any applicable law; or (xiv) use the Services in conjunction with other services, software, cloud storage providers, or hardware that are not provided, or approved in writing, by us. The software and related technology incorporated into the Program are subject to applicable United States export laws and regulations. You must comply with all applicable United States and international export laws and regulations with respect to such software and related technology. Without limitation, you may not export, re-export or otherwise transfer such software or related technology, without a United States government license: (a) to any person or entity on any United States export control list; (b) to any country subject to United States sanctions; or (c) for any prohibited end use. You agree to immediately report to us, and to use your best efforts to promptly stop, any violation of the terms and conditions set forth in this Section 5.
6. SERVICE AVAILABILITY. Subject to the terms and conditions of this Agreement, we will use commercially reasonable efforts to provide the Services on a twenty-four (24) hour, seven (7) day a week basis. We may use third party vendors or service providers to assist us in providing the Services. From time to time, the Services may become unavailable for reasons that include (i) equipment malfunctions and failures; (ii) scheduled maintenance or needed repairs; (iii) interruption, limitation, or failure of telecommunication or digital transmission links, network problems or other similar interruptions (including bandwidth problems); or (iv) any force majeure or cause beyond our reasonable control. We reserve the right as we deem necessary in our sole discretion to modify or discontinue any part of the Services and to replace them with similar Services. You will not be entitled to any setoff, discount, refund or other credit as a result of the temporary unavailability, or discontinuation and replacement, of the Services.
7. SECURITY. We will use commercially reasonable efforts to protect your Website Account and Customer Information against unauthorized disclosure or access. We comply with all applicable laws, including those pertaining to security breach notification, and we will notify you of any known security breaches to your Website Account. You are responsible for maintaining the confidentiality of your account access information, including your user names and passwords, for use of the Services, and for establishing and maintaining appropriate security, protection and backup of your Customer Information. You agree to change that access information and notify us immediately regarding any possible misuse of your Website Account and the Services.
8. COMPLIANCE WITH LAWS. The Parties shall comply with all applicable federal, state, and local laws and regulations, including Criminal Justice Information Services standards and policies.
9. TECHNICAL SUPPORT. Technical support is available to customers with questions regarding the Services and their Website Account during regular business hours. Contact information and access hours for our customer support services are available on the Website.
10. SUBSCRIPTION FEES. The Program Services include a number of Options, including Cloud Storage Plans and data retention schedules customized for each customer ( Subscription). Pricing for the Subscription selected by, and customized for, you is set forth in the Program Documents, including your Subscription invoice, which are incorporated herein by this reference. You agree to make payments for the Services in accordance with this Agreement and your Subscription. All amounts payable under this Agreement are be paid in legal tender of the United States, without set off, deduction or demand. You will be responsible for all costs and expenses incurred by us in connection with the collection of unpaid amounts and fees, including court costs and reasonable attorneys™ fees. Any amount not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily from the date due until the date paid. Unless otherwise agreed upon in writing, and subject to all tax exemptions available to you, the fees, compensation and other amounts payable to us under this Agreement do not include any taxes, customs, duties, fees or other charges assessed or imposed by any governmental authority other than taxes imposed on or measured by our net income. You agree to pay or reimburse us for all such taxes and charges imposed on you with respect to the Services under this Agreement upon demand, or provide certificates or other evidence of exemption from such taxes.
11. CUSTOMER RETENTION PERIOD. During the Term, Customer Information will be stored in your Website Account for the period of time provided in the Cloud Storage Plan you select. Pursuant to such Cloud Storage Plan, Customer Information will be automatically deleted in accordance with that Cloud Storage Plan™s data retention schedule. For longer storage needs, unless additional storage capacity and/or retention time is purchased, it is a customers’ obligation to retain and preserve their Customer Information.
12. TERM; AUTOMATIC RENEWAL. The term of this Agreement ( Original Term) shall commence on the Effective Date and shall continue during the length of the Cloud Storage Plan you selected, unless earlier terminated pursuant to this Agreement. UNLESS THE PROGRAM DOCUMENTS PROVIDE OTHERWISE, THE CLOUD STORAGE PLAN YOU SELECT, AND THIS AGREEMENT, WILL AUTOMATICALLY RENEW AND WILL CONTINUE FOR THE SAME TERM OF YEARS AS THE EXPIRING CLOUD STORAGE PLAN (EACH AUTOMATIC RENEWAL, A RENEWAL TERM), UNLESS TERMINATED BY EITHER PARTY IN ACCORDANCE WITH THIS AGREEMENT. UPON AUTOMATIC RENEWAL, THE THEN CURRENT FEES AND PROVISIONS OF THIS AGREEMENT SHALL APPLY AND YOU AUTHORIZE US WITHOUT NOTICE TO COLLECT THE THEN APPLICABLE FEE AND TAXES FOR THE RENEWAL TERM, USING ANY CREDIT CARD WE HAVE ON RECORD FOR YOU. If your credit card expires or you have arranged another method of payment that has not been made in advance of the renewal date, your subscription or Services plan (including the Cloud Storage Plan) will not automatically be terminated. You will remain responsible for payment of all charges for the Renewal Term. As used in this Agreement, Term shall include the Original Term and all Renewal Terms. Either Party may cancel this Agreement by giving written notice to the other Party sixty (60) days prior to the end of a Term, in which case this Agreement and the Services will terminate at the end of that Term. If we have permitted you to access and use the Services for beta, evaluation, testing or demonstration purposes, or other circumstances for which we are not receiving a payment of a purchase price or license fee (each, a Provisional Use), the term of your license will, at our sole discretion, automatically terminate at the end of such Provisional Use period, or earlier, in our sole discretion, upon five (5) days written notice. If you are using this limited license for a Provisional Use, you warrant and agree to abide by all responsibilities and obligations of a customer set forth in this Agreement, other than the obligations your Provisional Use expressly limits in writing.
13. SUSPENSION OF SERVICES. If you have not paid all applicable fees for the Services in accordance with this Agreement, or the Units in accordance with the terms of a Digital Ally purchase order, if you become insolvent or make a general assignment for the benefit of creditors, or file (or has filed against you) a petition of bankruptcy or reorganization, or pursue any other remedy under any other law relating to relief for debtors, or in the event a trustee or receiver is appointed for your property or business, or if you breach this Agreement in a manner other than one which threatens the security or functionality of the Services, or which is listed in Section 5, we may provide you with written notice of such breach. If you do not make all outstanding payments then due, or otherwise cure the noticed breach, within fifteen (15) days of such notice, we may suspend your (including your Authorized Users™) access to your Website Account and to the Services, until all fees are paid in full, or the noticed breach is otherwise cured as determined in our sole discretion. If you are in breach of your obligations pursuant to Section 5 ( Section 5 Breach), or otherwise act in a manner which threatens the security or functionality of the Services, we may, in our sole discretion, immediately and without prior notice temporarily suspend your access to, and use of, the Website and Services (including use by your Authorized Users) until, in our sole discretion, the Section 5 Breach or the threat to the security or functionality of the Services or the Website are cured, and upon such cure, we will use reasonable efforts to re-establish the affected Services promptly. Suspension of Services will not relieve you of your payment obligations hereunder or entitle you to any credit to your account while the Services are suspended. The exercise of our rights under this Section 13 shall not be deemed to waive our right to terminate this Agreement based upon any such breaches, and we may further exercise all of our additional legal and equitable rights.
14. TERMINATION; EFFECT. This Agreement may be terminated: (i) by either Party on thirty (30) days written notice ( Notice Period) to the other Party following a material breach of the Agreement if the other Party fails to cure such breach within the Notice Period. Termination or expiration of this Agreement shall not relieve either Party of obligations that by their nature or terms survive termination or expiration; such as, by way of example and without limitation, the obligation to make all payments that have or will become due under this Agreement, and the confidentiality obligations in Section 16. Upon termination or expiration of this Agreement for any reason, you shall immediately cease use of the License and the Services, and at our expense, return to us all Confidential Information (including all copies thereof) then in your possession or custody or control, and certify in writing as to such action. With at least 60 days written notice, we may terminate this Agreement any time, in whole or in part, without cause, and such termination shall not constitute a default. In such event, we will be entitled to payment for the Services rendered to you up to the time of said termination, and we will return to you any advance payments made by you for the Services that will not be provided by us under this Agreement going forward. With at least 60 days written notice, you may terminate this Agreement any time, in whole or in part, without cause, and such termination shall not constitute a default, so long as you complete your payments due under this Agreement for the Services during the then current Term, including for your then current Cloud Storage Plan and Options, and also fulfill your surviving obligations hereunder.
15. CUSTOMER INFORMATION AT TERMINATION. For ninety (90) days following termination or expiration of this Agreement, as long as you are not in default of the Agreement at and/or following termination (the Retrieval Period), we will grant you, at no additional charge to you, access to your Website Account for information retrieval purposes only so that you may retrieve your Customer Information. Following the Retrieval Period, all Customer Information stored on our Program Website, including in your Website Account, will be deleted, unless a court order prevents the deletion. During the Retrieval Period, you may, for an additional charge, request professional services from us to assist you in such retrieval, subject to our mutually agreeing to terms to be negotiated at such time. The additional Retrieval Period and post-termination data retrieval assistance will not be available if you are in default of this Agreement at termination or upon expiration of the Agreement.
16. CONFIDENTIALITY. Each Party agrees to use commercially reasonable efforts to maintain the other Party™s Confidential Information in confidence and shall not use or disclose any portion of the other Party™s Confidential Information to third parties, except as expressly authorized by this Agreement or as reasonably necessary to perform this Agreement.
17. LIMITED WARRANTY. We warrant that, during the Term ( Warranty Period), the Digital Ally software licensed hereunder ( Software) will substantially conform to the applicable Program technical manuals, training materials, specifications or other documentation made available to you as part of the Program. To receive coverage under this Limited Warranty, you must contact our Product Support department at http://www.digitalallyinc.com/login.cfm (the “Digital Ally Support Website”) or by telephone at 1-800-440-4947 within the Warranty Period so that our technicians may have the opportunity to diagnose and troubleshoot the issue. If we thereafter determine that the Software is or may be defective within the Warranty Period under normal use, the Software will be repaired, replaced or upgraded ( Software Modifications), in our discretion, at our premises during the Warranty Period. You will be responsible for the installation of Software Modifications, at your expense. This warranty does not apply if the Software, Digital Ally product or any other equipment upon which the Software is authorized to be used: (i) has been altered, except by us or our authorized representative, (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by us, (iii) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (iv) is licensed for beta, evaluation, testing or demonstration purposes or other circumstances for which we are not receiving a payment of a purchase price or license fee; or (v) if you materially breach this Agreement. This Limited Warranty is your exclusive remedy with respect to the Software and Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 17, ALL EXPRESS AND IMPLIED WARRANTIES ARE DISCLAIMED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, DESIGN, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, AND WARRANTIES IMPLIED FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IF YOU MADE YOUR PURCHASE THROUGH A THIRD PARTY, WE ARE NOT RESPONSIBLE FOR THE REPRESENTATIONS OR WARRANTIES MADE BY SUCH THIRD PARTY.
18. HOSTING PROVIDERS™ WAIVER. Your Website Account is hosted by us through one or more third party service providers that provide, among other services, the Cloud Storage capacity and Website access used to provide the Services. You expressly understand that you are not a third party beneficiary of any agreement between us and our service providers. ANY RIGHTS OR REMEDIES YOU MAY HAVE WITH REGARD TO SUCH THIRD PARTY PROVIDERS™ PERFORMANCE ARE LIMITED TO THOSE RIGHTS EXTENDED TO YOU BY SUCH THIRD PARTY PROVIDERS AND YOU HEREBY WAIVE ALL CLAIMS AGAINST US ARISING FROM OR RELATING TO THIRD PARTY PROVIDER PERFORMANCE.
19. CUSTOMER PROVIDERS AND EQUIPMENT. You are responsible, at your cost, for providing and maintaining Internet access and all necessary telecommunications equipment, software and other materials necessary for accessing your Website Account, for properly creating, downloading, and maintaining Customer Information, and accessing and using the Services.
20. INDEMNITY
20.1 Indemnity By Digital Ally. We agree, at our own expense, to defend or, at our option, to settle, any action brought against you to the extent it is based on a claim that the Services directly infringe any United States patent, copyright or trademark of a third party, and we will indemnify and hold you harmless from and against any losses, damages, and expenses (including reasonable attorneys™ fees) that are attributable to such action and are assessed against you in a final judgment. We shall have the foregoing obligation to you only if you provides us with a promptly delivered written request for indemnification and defense in such action and provides all available assistance and authority reasonably necessary for us to defend such action. In such defense and indemnification, we will have sole control and authority over the defense and settlement thereof; and we will not be responsible to, and will not compensate you for, any attorneys™ fees or other expenses or costs incurred before you request indemnification and defense. If any Services becomes, or in our opinion are likely to become, the subject of an infringement claim or action, we may, at our option and in our sole discretion either procure, at no cost to you, the right for you to continue using the Services, or replace or modify the Services to render them non-infringing, provided there is no material loss of functionality. If in our reasonable opinion, the aforementioned options are not commercially viable options, we may in our sole discretion terminate any of the Services or the Agreement. The preceding remedy provision states our sole obligation and your exclusive remedy in the event any claim or action for infringement is commenced or is likely to be commenced. This indemnification obligation will not apply to (i) any action caused by the use of the Services not in accordance with the terms of this Agreement; (ii) modifications to the Services by a person or entity other than us or our third party licensors; (iii) where the Services are combined with processes or materials not supplied under this Agreement by us, or (iv) where you continue an allegedly infringing activity after being notified thereof.
20.2 Indemnification By Customer. Except for claims covered by our indemnification obligation in Section 20.1, you agree to defend, indemnify and hold us and our officers, directors, shareholders, employees, suppliers and re-sellers, their agents, licensees, licensors, and subcontractors ( Indemnified Party(ies)) harmless from and against all losses, damages and expenses, including reasonable attorneys™ fees, in connection with any claims against the Indemnified Parties in any way arising out of or related to: (i) your negligent or willful acts or omissions in using the Services,; (ii) a violation by you of this Agreement, including engaging in any prohibited conduct hereunder; or (iii) any claim that you or your Authorized Users used the Services improperly, illegally, or for unauthorized or illegal monitoring. You will have the foregoing indemnification obligation only if an Indemnified Party provides you with a promptly delivered written request for indemnification and defense in such action and provides all available assistance and authority reasonably necessary for you to defend such action.
21. LIMITATION OF LIABILITY
WE WILL HAVE NO LIABILITY WHATSOEVER AS A RESULT OF THE UNIT(S) BEING LOCATED IN AN AREA NOT COVERED BY APPROPRIATE WIRELESS COVERAGE; IF THE UNIT(S) FAIL TO ESTABLISH A CONNECTION WITH WIRELESS SERVICES; IF SERVICES ARE DISABLED DUE TO ANY NETWORK OR STORAGE PROVIDER RELATED ISSUES; FOR THIRD PARTY DATA BREACHES; IF YOUR CUSTOMER INFORMATION IS CORRUPTED PRIOR TO, OR DOES NOT DOWNLOAD; OR FOR LOSS OF, OR DAMAGE TO, ANY CUSTOMER INFORMATION. THE CLOUD STORAGE PLAN, THE SERVICES AND ALL INFORMATION, CONTENT, MATERIALS, AND SERVICES INCLUDED ON, OR OTHERWISE MADE AVAILABLE TO YOU THROUGH, THE WEBSITE ARE PROVIDED BY US ON AN AS IS AND AS AVAILABLE BASIS.
UNDER NO CIRCUMSTANCES SHALL WE OR OUR AFFILIATES, AGENTS, SUBCONTRACTORS, LICENSORS OR RE-SELLERS (COLLECTIVELY, AGENTS) BE LIABLE FOR ANY OF THE FOLLOWING: (I) THE LOSS OF SIGNALS FROM ANY GPS SATELLITE, THE LOSS OF SIGNALS FROM ANY MOBILE NETWORK CELL OR PROVIDER, THE LOSS OF TELEPHONE SYSTEM SIGNALS, THE LOSS OF INTERNET CONNECTIVITY, THE LOSS OF OR FAILURE OF THE CLOUD STORAGE SYSTEM, THE INABILITY OF CUSTOMER TO USE THE SERVICES FOR ANY REASON (INCLUDING DISCONTINUATION OF THE SERVICES, DISCONTINUATION OF CUSTOMER™S ACCESS TO THE SERVICES, AND SERVICE INTERRUPTIONS OF ANY SORT; (II) THIRD PARTY CLAIMS OTHER THAN THOSE IDENTIFIED IN SECTION 20.1; (III) DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, RELIANCE, OR COVER DAMAGES (INCLUDING LOST PROFITS, LOST SAVINGS, AND LOSSES OF GOODWILL, USE, AND DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (IV) ACTIONS OR CONDUCT OF CUSTOMER OR ITS AUTHORIZED USERS (V) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE, ANY OF CUSTOMER™S CONTENT OR OTHER DATA,; OR (VI) ANY OTHER FACTORS OUTSIDE OF OUR CONTROL. IN NO EVENT WILL WE OR OUR AGENT™S, TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, AND OTHER CONTRACT OR TORT CLAIMS), EXCEED THE FEES PAID BY YOU TO US FOR THE SERVICES UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EARLIEST EVENT GIVING RISE TO THE DAMAGES.
22. DEFINITIONS
22.1 Cloud Storage means data storage where the digital data is stored in logical pools, the physical storage spans across multiple servers (and often locations), and the physical environment is typically owned and managed by a hosting company.
22.2 Cloud Storage Plan means any one of the options offered by us as part of the Program wherein a certain data may be maintained, managed, and made available to customers on the Website for a specified period.
22.3 Confidential Information means non-public information that a Party provides and reasonably considers to be of a confidential, proprietary or trade secret nature, including trade secrets, know how, inventions, techniques, research, designs, methods, compilations, processes, plans, programs, procedures, schematics, software source documents, data, customer lists, customer and supplier information, financial statements, projections and other financial information, and engineering, sales and marketing plans, whether in tangible or intangible form, and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically, or in writing. Confidential Information shall not include Non-Confidential Information as defined below.
22.4 Internet means the global computer network comprised of interconnected networks using standard protocols including TCP/IP.
22.5 Non-Confidential Information means information which: (i) is, as of the time of its disclosure or thereafter becomes part of the public domain through no fault of the receiving Party; (ii) can be demonstrated by credible evidence: (a) as rightfully known to the receiving Party prior to the time of its disclosure, or (b) to have been independently developed by the receiving Party; (iii) is subsequently learned from a third party not under a confidentiality obligation to the disclosing Party; or, (iv) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving Party has provided prompt written notice and assistance to the disclosing Party prior to such disclosure so that the disclosing Party may seek a protective order or other appropriate remedy to protect against disclosure.
22.6 Program Documents includes all of Digital Ally™s sales invoices, purchase orders, quotations, the limited warranty accompanying the Units, the Terms of Sale accompanying your Digital Ally purchases, this License, the Website Terms of Use, and any special conditions agreed to in writing and signed by you and us.
22.7 Server means the Cloud server or servers as designated by us from time to time through which we provides the Program Services in accordance with this Agreement.
22.8 Any capitalized terms used in this Agreement as defined terms that are not defined herein shall have the meanings given them in the Program Documents.
23. GENERAL
23.1 Interpretation. Any pronoun used in this Agreement shall include the corresponding masculine, feminine and neutered forms. The words include, includes, and including shall be deemed to be followed by the phrase without limitation. The words herein, hereof, hereto, hereunder, and similar terms shall refer to this Agreement, unless the context otherwise requires. The references to Exhibits, Sections, Subsections, or Articles are references to the Exhibits, Sections, Subsections or Articles of this Agreement, unless the context otherwise requires. This Agreement shall be deemed to be drafted equally by both Parties and shall not be subject to any rule requiring that it be construed against any drafter. The Website Terms of Use, our Privacy Policy, any Exhibits, and all documents referenced in this Agreement are incorporated herein by this reference.
23.2 Notices. All notices, requests, demand or other communications shall be given in writing and shall be effective when received, which receipt shall be established as follows: (i) on the date of delivery when delivered personally or by a courier service (as conclusively evidenced by a report from such service); (ii) on the date actually delivered if deposited in U.S. certified mail, return receipt requested; or (iii) on the date of telecopy if successfully telecopied (as conclusively evidenced by a transmission report from the sender’s telecopy machine indicating error-free transmission), to the Parties at the addresses as follows: if to you, at the address recorded in the Program Documents and if to us, to Digital Ally, Inc., 9705 Loiret Blvd., Lenexa, KS 66219 , unless a Party requests in writing that another address or facsimile number be used for notice purposes. Notwithstanding any other provision of this Section 23.2, we may, in our sole discretion, decide to deliver any documents or notices related to this Agreement to your Website Account by electronic means, and you hereby consents to receive such documents by electronic delivery. Notices sent by electronic means will be effective upon our electronic transmission of such notice.
23.3 Assignment and Delegation. You may not assign, transfer, or sell any of your rights, or delegate any of your responsibilities under this Agreement without our prior written consent. All assignments of rights by you are prohibited by this Section 23.3, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. We may assign this Agreement, and any or all of our rights, interests, or obligations hereunder, to our affiliates, our successors in connection with the transfer or sale of all or substantially all of our business related to this Agreement, or in the event of a merger, consolidation, change in control, corporate reorganization, sale of a division, or similar transaction (each, a Permitted Assign and collectively, Permitted Assigns), provided, however, that any Permitted Assigns shall assume all of our obligations under this Agreement. Any purported assignment of rights or delegation of performance in violation of this Section 23.3 is void. Subject to the preceding provisions, this Agreement shall be binding upon and inure to the benefit of the Parties, their successors and assigns.
23.4 Amendment. WE MAY FROM TIME TO TIME MODIFY THIS AGREEMENT IN OUR SOLE DISCRETION BY POSTING THE REVISED TERMS ON THE WEBSITE OR BY OTHERWISE DELIVERING NOTICE TO YOU, BUT ANY INCREASE IN FEES WILL NOT AFFECT THE COST OF YOUR SERVICES PLAN DURING THE TERM. YOU AGREE THAT YOU WILL REGULARLY CHECK THE WEBSITE FOR CHANGES TO THIS AGREEMENT. YOUR CONTINUED USE OF THE SERVICES AFTER ANY AMENDMENT EVIDENCES YOUR AGREEMENT TO BE BOUND BY THE TERMS OF EACH AMENDMENT.
23.5 Waiver, Remedies, and Severability. If any provision of this Agreement is deemed illegal or otherwise unenforceable, that provision shall be severed and the remainder of this Agreement shall remain in full force and effect if the essential provisions of this Agreement for each Party remain valid, legal and enforceable. The waiver of any breach, right, or election of any remedy in one instance, by either Party, shall not affect, nor constitute a waiver of, any breach, rights or remedies in another instance. A waiver shall be effective only if made in writing and signed by an authorized representative of the Party against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no act, omission or course of dealing between the Parties operates as a waiver or estoppel of any right, remedy or condition.
23.6 Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Kansas without regard to its choice of law principles. Any action arising from or relating to this Agreement must be brought in the District Court of Johnson County, Kansas (and its appellate courts) or in the U.S. District Court for the District of Kansas (and its appellate courts), and the Parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, such courts. The Parties agree that any action arising from or relating to this Agreement will be governed by the Kansas version of the Uniform Commercial Code.
23.7 Limitations on Time to File Claim. Any cause of action or claim you may have arising out of or relating to this Agreement, including the License, the Services, and the Website and Website content, must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
23.8 Jury Trial Waiver. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
23.9 No Third-Party Beneficiaries. There are no third-party beneficiaries of any kind to this Agreement.
23.10 Force Majeure. Neither Party shall be liable for any delay in performance or failure to perform, in whole or in part when due to labor dispute, strike, war or act of war (whether an actual declaration is made or not), insurrection, riot civil commotion, act of public enemy, accident, fire, flood, or other act of God, act of any governmental authority, judicial action, or similar causes beyond the reasonable control of that Party. If an event of force majeure occurs, the Party so affected shall promptly notify the other Party.
23.11 Independent Contractor. You and we are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the Parties.
23.12 Signatures. This Agreement is binding with your electronic acceptance. However, if the Parties enter into this Agreement in documentary form, this Agreement may be executed in several counterparts, all of which together shall constitute one agreement binding on all Parties hereto, notwithstanding that all the Parties have not signed the same counterpart. A signature provided by facsimile transmission or other electronic means shall constitute a valid signature for the purpose of this Agreement.
23.13 Captions and Section Heading and Section Numbers. The captions, section headings, and section numbers appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such sections of this Agreement.
23.14 Survival of Obligations. The obligations of the Parties hereunder, which by their terms might apply after the completion or termination of this Agreement shall survive such completion or termination.
23.15 Electronic Information. You are capable of printing or storing a copy of any electronic records of transactions into which you enter including, without limitation, any amendments to this Agreement; and, you agree to receive electronically information about the Services and other electronic records from Digital Ally that are necessary and appropriate to this Agreement.
23.16 Authority. You represent to us that you are lawfully able to enter into contracts, including that you are not a minor. If you are entering into this Agreement for an entity, including the law enforcement agency you represent, you represent to us that you have legal authority to bind that entity.
23.17 Entire Agreement. This Agreement, along with the exhibits and policies referenced herein, constitutes the entire agreement between the Parties concerning the subject matter hereof, superseding all previous agreements, proposals, representations, or understandings, whether oral or written.
(Updated August 17, 2021)