Electric Mirror Terms of Service for Safeology Products
These Safeology Terms of Service for UVC Disinfecting Products, (this “Agreement”) are effective on the date shown on the Sales Order Acknowledgement (“Effective Date”), and is between Electric Mirror®, LLC (“Electric Mirror”) and the end-user customer (“Licensee”) indicated on the Sales Order Acknowledgement (“Order Form”) and govern the transaction and relationship described on that Order Form. Electric Mirror and Licensee are individually referred to as a “Party,” and collectively as the “Parties.” The parties agree as follows:
- TERM. This Agreement will begin on the Effective Date and continue through the period indicated on the Order Form (the “Initial Term”). The Initial Term will automatically renew for consecutive 1-year periods (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party sends written notice of non-renewal at least 90 days’ before the expiration of the then-current term.
- LICENSED PRODUCTS AND PERMITTED USE. Unless provided otherwise in the Order Form or this Agreement, during the Term of this Agreement and subject to this Agreement, Electric Mirror hereby grants Licensee a non-exclusive, nontransferable (except as expressly provided in this Agreement), restricted, revocable license to use certain Safeology™ software products (“Safeology Products”) for the Permitted Use only, and within the permitted location, as expressly set forth in the Order Form. Licensee acknowledges and agrees that the license provided above is a subscription to the Safeology Products independent of Licensee’s actual usage of the Safeology Products. Safeology Products may include:
- Cloud-based back-end management.
- Mobile application operations.
- Computer-aided modeling.
- DATA ACCESS. Electric Mirror will provide Licensee with unique access credentials to enable the Licensee to access the Safeology Products. Licensee will not make such access credentials available to any third party, other than those authorized to act on Licensee’s behalf. Licensee will be responsible for any misuse of the Safeology Products through such access credentials.
- RESTRICTIONS. Safeology Products rely on and incorporate various types of underlying data (“Safeology Data”). Licensee’s license to the Safeology Products is subject to the following restrictions:
- Unless stated otherwise in the Order Form, the Safeology Data will always be kept separately identifiable and distinct from all other data (whether of Licensee or any third party).
- The Safeology Data cannot be combined or merged with any other data not provided by Electric Mirror for purposes of reselling the combined data or creating a competitive product. Licensee is also prohibited from redistributing, reselling or acting as a service bureau for the Safeology Products.
- The Safeology Products and Safeology Data must not be transferred to, or used by any competitor of, Electric Mirror in any way.
- Licensee will not misrepresent the timing, source, content, or availability of the Safeology Data or information gathered from the Safeology Data.
- Licensee will not use the Safeology Data: (i) in connection with the transmission, sale, license or delivery of any infringing, defamatory, offensive, or illegal products, services or materials; (ii) in any manner that threatens the integrity, performance, delivery or availability of the Safeology Data; (iii) to copy, store, archive, or create a database of the Safeology Data; or (iv) in violation of local, state, or federal laws or regulations.
- Licensee may not reverse engineer, decompile, or disassemble the Safeology Products or Safeology Data. Except as expressly allowed by the Permitted Use, Licensee may not create derivative works of the Safeology Products or Safeology Data.
- CHANGES TO SAFEOLOGY PRODUCTS. Electric Mirror may, in its sole discretion, make feature, functionality, or formatting updates to the Safeology Products. Electric Mirror will use commercially reasonable efforts to provide advanced notice of such Safeology Product updates, and to identify Safeology Product updates that may require modifications to Licensee applications. Licensee’s failure to upgrade Licensee applications to the latest version may result in an interruption of Licensee’s access to the Safeology Product. The Safeology Products and Safeology Data will include only that information that Electric Mirror collects and distributes in the ordinary course of its business. As a result, Electric Mirror may terminate specific markets or products upon 30 days’ notice to Licensee if such markets or products are no longer offered in Electric Mirror’s ordinary course of business. Notwithstanding the above, Electric Mirror may terminate specific markets or products described in this Agreement immediately upon written notice to Licensee if any third-party provider upon which Electric Mirror relies for the provision of the Safeology Products ceases to provide that data for any reason.
- IP RIGHTS. As between Licensee and Electric Mirror, all title and intellectual property rights in and to the Safeology Products, Safeology Data, and related documentation, compilations, collective works, technical know-how and all rights therein, are owned or licensed by Electric Mirror. This Agreement grants Licensee no rights to any such intellectual property rights or title except for the limited license rights expressly granted herein. All rights not specifically granted under this Agreement are reserved by Electric Mirror and its suppliers. If a Safeology Product or Safeology Data is merged, incorporated or combined into any software, hardware, or other data, the Safeology Product and Safeology Data will continue to be subject to the provisions of this Agreement, and Electric Mirror will retain ownership of the underlying Safeology Product or Safeology Data.
- TERMINATION. If either party fails to perform its material obligations under this Agreement, the other party may terminate this Agreement upon 30 days’ prior written notice if the matters set forth in such notice are not cured within this 30-day period. Upon termination or expiration of this Agreement, and unless provided otherwise in the Order Form or this Agreement: (a) all rights granted by Electric Mirror under this Agreement will immediately terminate, and Electric Mirror’s obligations to provide Safeology Data hereunder will immediately cease; (b) Licensee will immediately cease to use any Safeology Products and Safeology Data; and (c) Licensee will destroy originals and all copies of the Safeology Products, Safeology Data and other materials provided by Electric Mirror under this Agreement, except for a copy kept solely for compliance purposes. The provisions of this Agreement dealing with liabilities, governing law, proprietary rights, confidentiality, and other similar types of clauses will survive the expiration or termination of this Agreement.
- PAYMENTS. Licensee will pay Electric Mirror the license fees in the amount and currency specified in the Order Form. Unless stated otherwise in the Order Form: all payments: (i) are invoiceable in advance; (ii) will be invoiced in full upon execution of the Order Form; (iii) are due within 30 days invoice date; (iv) will be paid by electronic transfer to the account directed by Electric Mirror; and (v) will be made in full without any proration, deduction, withholding, setoff or refunds of any kind. Fees due Electric Mirror hereunder are exclusive of any fees, taxes, assessments, or other payments that Licensee is legally obligated to pay. Licensee will pay all production, handling and transmission costs associated with the receipt, transmission and use of the Safeology Products. Licensee must notify Electric Mirror in writing within 15 days of the invoice date of any payment disputes. The parties will negotiate in good faith to resolve any payment disputes within 30 days, provided that Licensee must timely pay all undisputed amounts.
- LATE PAYMENTS. Late payments may be assessed an interest charge at a rate equal to the lesser of (i) the maximum rate permitted by law, or (ii) 1% per calendar month or pro rata for part thereof. Electric Mirror, in its sole discretion, may without limitation suspend Licensee’s access to the Safeology Products, if Licensee fails to deliver payment in accordance with this Agreement within 30 days of the date due. Licensee shall be responsible for all collection costs necessitated by Licensee’s default in payment.
- RECORDS. Licensee will keep complete and accurate records relating to Licensee’s use and distribution of the Safeology Products, including all payments due. During the Term and for 1 year thereafter, Electric Mirror, will have the right upon reasonable notice, and Licensee will reasonably cooperate with Electric Mirror or its independent auditor’s efforts to: (a) verify Licensee’s procedures to ensure accurate tracking and reporting of Licensee’s obligations under this Agreement; and (b) Licensee’s compliance with this Agreement. Any audit will occur no more than once each calendar year and will be conducted during normal business hours and in a manner that does not interfere unreasonably with Licensee’s operations. If the audit reveals lack of compliance by Licensee with any obligation under this Agreement, Licensee will immediately remedy such non-compliance, including by remitting payment for all underpaid amounts. If Licensee has underpaid Electric Mirror by more than 10% for the audit period, Licensee will reimburse Electric Mirror for the reasonable costs in the audit within 30 days of invoice.
- LIMITATIONS OF LIABILITY. TO THE FULLEST EXTENT PERMITED BY LAW, NEITHER PARTY WILL UNDER ANY CIRCUMSTANCES BE LIABLE TO THE OTHER PARTY OR ITS CUSTOMERS, END USERS, OR ANY OTHER THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR ANY INDIRECT DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS OR ANTICIPATED REVENUES) ARISING OUT OF OR RELATED TO THE SAFEOLGOY PRODUCTS, SAFEOLOGY DATA OR THIS AGREEMENT, OR FOR ANY DAMAGES WHATEVER ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DATA DELAYS, LOSS OF DATA OR INTERRUPTION OF SERVICE HEREUNDER. THE ELECTRIC MIRROR SUPPLIERS WILL HAVE NO LIABILITY FOR ANY DAMAGES WHATEVER IN RELATION TO THIS AGREEMENT. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR BREACH OF CONFIDENTIALITY AND TO THE FULLEST EXTENT PERMITED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS, ACTS AND/OR OMISSIONS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER ANY CLAIM OR ACTION IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO ELECTRIC MIRROR UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING LIMITATION WILL NOT APPLY TO ANY CLAIMS AIRSING OUT OF OR RELATED TO DEATH OR PERSONAL INJURY, FRAUD, OR A PARTY’S INTENTIONAL MISCONDUCT.
- WARRANTIES; DISCLAIMER. NEITHER ELECTRIC MIRROR NOR THE ELECTRIC MIRROR SUPPLIERS WARRANT THE ACCURACY OR TIMELINESS OF DATA PROVIDED HEREUNDER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SAFEOLOGY DATA ARE PROVIDED BY ELECTRIC MIRROR AND THE ELECTRIC MIRROR SUPPLIERS “AS IS,”, “WITH ALL FAULTS”, “AS AVAILABLE” AND WITHOUT WARRANTY OR COMMITMENT OF ANY KIND, AND (B) TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND WHATSOEVER (INCLUDING EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ACCURACY, ARE EXPRESSLY EXCLUDED. NEITHER ELECTRIC MIRROR NOR THE ELECTRIC MIRROR SUPPLIERS MAKE ANY WARRANTY THAT THE SAFEOLOGY PRODUCTS WILL OPERATE PROPERLY AS INTEGRATED WITH LICENSEE’S PRODUCTS.
- INDEMNIFICATION. Electric Mirror will defend Licensee against and will pay any costs or damages that may be awarded in a final judgment, or agreed to by Licensee in a settlement, to the extent arising out of a third-party claim that is based upon, arises from or results from: (a) Electric Mirror violating any applicable law; or (b) infringement of any third party’s intellectual property rights by the Safeology Products as provided to Licensee and independent of the use of the Safeology Products by Licensee. Licensee will defend Electric Mirror against and will pay any costs or damages that may be awarded in a final judgment, or agreed to by Licensee in a settlement, to the extent arising out of a third-party claim that is based upon, arises from or results from: (a) Licensee or End User’s violation of license (sub-license) rights; (b) Licensee or End User violation of any applicable law; or (c) infringement of any third party’s intellectual property rights arising from Licensee’s or End User’s use of an Electric Mirror Product.
- CONFIDENTIALITY. Each party will treat all non-public information of the other party, including the other party’s business plans, finances, technology, inventions, and sales information (collectively, “Confidential Information”) as confidential and proprietary of the disclosing party, and will take all reasonable steps to prevent unauthorized use or disclosure (and in any event no less than reasonable care). Any performance data or feedback provided by Licensee shall be deemed Electric Mirror’s Confidential Information. Each party agrees not to disclose or otherwise reveal any Confidential Information of the other party to any third party without the prior written consent of the other party. Each party will use all Confidential Information received hereunder solely for the purposes of fulfilling its obligations or exercising its rights under this Agreement, and will not duplicate any of the Confidential Information, except as necessary to meet its obligations or exercise its rights under this Agreement. Notwithstanding the above, either party may disclose Confidential Information to its attorneys, auditors, accountants, and advisers who may have a need to know such Confidential Information and who have a legal duty or obligation to maintain the confidentiality of such Confidential Information. Licensee will cause each of its employees, agents and subcontractors who perform services or use any Safeology Products or Safeology Data under this Agreement to be subject to a duty of confidentiality that is no less restrictive than the confidentiality obligations set forth in this Agreement. All Confidential Information, including all copies in any form, will be returned to the disclosing party, or destroyed upon completion or termination of this Agreement (except for a copy kept solely for compliance purposes). The foregoing provisions will not apply to the extent that either party can demonstrate that any Confidential Information of the other party: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) was rightfully in the receiving party’s possession at the time of disclosure, without an obligation of confidentiality; (c) was independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) was rightfully obtained by the receiving party from a third party without restriction on use or disclosure. Either party may disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that receiving party gives reasonable notice to the disclosing party to enable it to contest or limit such order or requirement. The signing of this Agreement will not extinguish any pre-existing nondisclosure agreement(s) between the parties prior to the Effective Date.
- PUBLICITY AND USE OF LOGOS AND TRADEMARKS. Any press release(s) regarding this Agreement will be subject to the approval of both parties. Neither party shall have the right to use the names, logos, or trademarks of the other party in publicity, advertising, and sales promotion without the prior written consent of that other party, such consent not to be unreasonably withheld or delayed. Notwithstanding the foregoing, neither party will be required to obtain the other party’s prior consent to include the other party’s name in public lists of each party’s clients and/or suppliers. Licensee may use Safeology name and logos with written permission under the guidelines provided.
- DATA ATTRIBUTION. Attribution for the Electric Mirror Products will be (a) as mutually agreed, (b) use the copyright notice “Disinfection Services Provided by Safeology © 202_. All rights reserved by Electric Mirror, LLC”, and (c) use the Safeology Products logo per Safeology brand guidelines and follow the data attribution requirements. Licensee will not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on or in the Safeology Products and related documentation provided by Electric Mirror.
- GOVERNING LAW. This Agreement will be governed by Washington law, excluding conflict of law provisions; and (2) all disputes shall be settled in the state or federal courts located in King County, Washington. The parties acknowledge that a breach of the intellectual property or confidentiality provisions of this Agreement would cause the other party irreparable harm, and in the event of such a breach, either party will be entitled to seek injunctive relief at any location or court, without having to post a bond or other security and without the requirement to prove inadequacy of damages.
- Force Majeure. Neither party will be deemed to be in default of this Agreement to the extent that any delay or failure in the performance of its obligations (except a failure to pay sums due) results from: Acts of God, acts of domestic or international terrorism, acts of civil or military authority, labor disturbances, strikes, lockouts, fires or explosions, earthquakes, floods or bad weather, communication or computer failures or delays, or any cause beyond its reasonable control (“Force Majeure”).
- Notices. Unless otherwise expressly provided herein, all notices required or permitted under this Agreement will be delivered by hand or overnight courier to the location specified in the Order Form (or to another location as agreed by the parties), if to Electric Mirror with a copy also sent to the attention of Electric Mirror’s General Counsel at the same address. All notices and other written communications hereunder will be in English and will be effective upon delivery.
- Relationship. This Agreement does not create any agency, joint venture or partnership relationship. Neither party will have the authority to negotiate or enter into any contract for or on behalf of, or create any obligations for, the other party.
- Assignment. Neither party may assign or otherwise transfer this Agreement, or any rights, licenses or obligations hereunder without the prior consent of other party, such consent not to be unreasonably withheld. However, either party may assign this Agreement as a whole without such consent to any acquirer of all (or substantially all) of that party’s assets or business. If Licensee acquires, is acquired by, or becomes a competitor of Electric Mirror, in Electric Mirror reasonable determination, Electric Mirror may terminate this Agreement at any time upon 30 days’ written notice to Licensee, without further liability to Licensee hereunder. Any assignee or successor of rights hereunder will be bound by all terms and conditions of this Agreement.
- Compliance. Each party will perform its obligations under this Agreement in accordance with all applicable laws and regulations, including export control laws and regulations.
- Interpretation. No provision of this Agreement will be construed against or interpreted to the disadvantage of any of the parties by any court or other authority by reason of that party having drafted or proposed such provision. All remedies in this Agreement are cumulative and in addition to those provided by law, unless otherwise expressly provided. If any provision of this Agreement is held to be unenforceable to any extent, it will nonetheless be enforced to the fullest extent allowed by law, and the validity and force of the remainder of this Agreement will not be affected. No variation, waiver or modification of this Agreement will be valid unless it is in writing and signed by the parties.
- ENTIRE AGREEMENT. This Agreement has been made part of the Sales Order Acknowledgement and Invoice Terms and Conditions by reference within them.