Terms of Sale - Verkada

Terms of Sale

TERMS OF SALE – END USER AGREEMENT

This End User Agreement (this “Agreement“) governs the purchase and use of Verkada’s enterprise video surveillance platform for video security (the “Software”) and related hardware (the “Hardware”) (collectively, the “Products”), between Verkada, Inc. (“Verkada”) and you, the end customer and user of Verkada’s Products (“Customer”).

By accepting this Agreement, whether by clicking a box indicating its acceptance, navigating through a login page where a link to this Agreement is provided, or executing a Purchase Order that references this Agreement, Customer agrees to the terms of this Agreement. If Customer and Verkada have executed a written agreement governing Customer’s access to and use of the Products, then the terms of such signed agreement will govern and will supersede this Agreement.

This Agreement is effective as of the earlier of the date that Customer accepts the terms of this Agreement as indicated above or first accesses or uses any of the Products (the “Effective Date”). Verkada reserves the right to modify or update the terms of this Agreement in its discretion, the effective date of which will be the earlier of (i) 30 days from the date of such update or modification and (ii) Customer’s continued use of the Products.

Verkada and Customer hereby agree as follows.

1.              DEFINITIONS

The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.

Customer Data” means data provided by Customer via the Software.

Documentation” means the online documentation regarding the Hardware, available at www.verkada.com/products.

License” has the meaning ascribed to it in Section 2.1.

License Term” means the length of time indicated in the License SKU set forth on the applicable Purchase Order.

Partner” means a third-party authorized by Verkada to resell the Products, from whom Customer has entered into a Purchase Order for such Products.

Products” means, collectively, the Software, Hardware, Documentation, and all modifications, updates, and upgrades thereto and derivative works thereof.

Purchase Order means each order document submitted to Verkada by Customer (or a Partner), and accepted by Verkada, indicating Customer’s (or Partner’s) firm commitment to purchase the Products and for the prices listed thereon.

Service Level Agreement” means the Service Level Agreement available at www.verkada.com/support/sla.

Support means the technical support services and resources available at www.verkada.com/support.

Users means employees of Customer, or other third parties, each of whom are authorized by Customer to use the Products.

2.              LICENSE AND RESTRICTIONS

              2.1         License to Customer. Subject to the terms of this Agreement, Verkada grants Customer a royalty-free, nonexclusive, nontransferable, worldwide right during each License Term to use the Software, subject to the terms of this Agreement (the “License”). Customer must purchase a License to the Software for at least the number of Hardware units it manages with the Software. Accordingly, Customer may only use the Software with up to the number and type of Hardware units specified on the applicable Purchase Order, however Customer may authorize an unlimited number of Users to access and use the Software. If Customer purchases additional Licenses, the License Term will be modified such that the License Term for all Licenses purchased will terminate on the same date.

              2.2          License to Verkada. Customer grants Verkada a non-exclusive right and license to use, reproduce, modify, store, and process Customer Data solely to provide the Products to Customer. Customer represents and warrants that it possesses the necessary rights and consents to grant Verkada the rights set forth in this Section 2.2 with respect to Customer Data.

             2.3          Restrictions. Customer will not: (i) use (or allow a third party to use) the Products in order to monitor the availability, security, performance, or functionality of the Products, or for any other benchmarking or competitive purposes without Verkada’s express written consent; (ii) market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit the Products; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Products or any of their components; or (iv) use the Products to conduct any fraudulent, malicious, or illegal activities or otherwise in contravention of any applicable laws or regulations (each of (i) through (iv), a “Prohibited Use”).

3.              HARDWARE WARRANTIES; RETURNS

              3.1         General. Verkada represents to the original purchaser of the Hardware that for a period of 10 years from the date of shipment to the location specified on the Purchase Order, the Hardware will be substantially free of defects in materials and workmanship (the “Hardware Warranty”).

              3.2         Remedies. Customer’s sole and exclusive remedy and Verkada’s (and its suppliers’ and licensors’) sole and exclusive liability for a breach of the Hardware Warranty will be, in Verkada’s sole discretion, to replace the non-conforming Hardware. Replacement may be made with a new or refurbished product or components. If the Hardware or a component within it is no longer available, then Verkada may replace the Hardware unit with a similar product of similar function. Any Hardware unit that has been replaced under the Hardware Warranty will be covered by the terms of the Hardware Warranty for the longer of (a) 90 days from the date of the delivery, or (b) the remainder of the original 10-year Hardware Warranty period.

              3.3         Returns.  Customer may return the Products within 30 days from the date of the applicable Purchase Order for any reason. Thereafter, to request a return under the Hardware Warranty, Customer must notify Verkada (or if the Products were purchased by Customer through a Partner, Customer may notify the Partner) within the Hardware Warranty period. To initiate a return directly to Verkada, Customer must send a return request to Verkada at [email protected] and clearly state details on where and when Customer purchased the Hardware, the serial numbers of the applicable Hardware unit(s), Customer’s reason for returning the Hardware, and Customer’s name, mailing address, email address, and daytime phone number. If approved in Verkada’s sole discretion, Verkada will provide Customer with a Return Materials Authorization (“RMA”) and prepaid shipping label via email that must be included with Customer’s return shipment to Verkada. Customer must return the Hardware unit(s) listed in the RMA with all included accessories with the RMA within the 14 days following the day on which Verkada issued the RMA. Verkada will replace the Hardware in its sole discretion.

4.              VERKADA OBLIGATIONS

              4.1         General. Verkada is responsible for providing the Products in conformance with this Agreement, the Purchase Order(s), and applicable Documentation.

              4.2         Availability. Verkada uses its best efforts to ensure that the Software it hosts as a cloud-based solution is available in accordance with the terms of the Service Level Agreement, which sets forth Customer’s remedies for any interruptions in the availability of the Software

              4.3        Support. If Customer experiences any errors, bugs, or other issues in its use of the Products, then Verkada will provide Support in order to resolve the issue or provide a suitable workaround. The fee for Support is included in the cost of the License. As part of Verkada’s delivery of Support and training, Customer understands that Verkada may access and use Customer’s account at its request.

5.              CUSTOMER OBLIGATIONS

              5.1         Compliance. Customer will use the Products only in accordance with the Documentation and in compliance with all applicable laws, including the export laws and regulations of the United States or any other country. Customer will ensure that none of the Products are directly or indirectly exported, re-exported, or used to provide services in violation of such export laws and regulations. Verkada reserves the right to suspend use of any Products operating in violation of such laws, following written notice to Customer (in the form of an email).

              5.2         Computing Environment. Customer is responsible for the maintenance and security of its own network and computing environment that it uses to access the Software.

6.              TERM AND TERMINATION

              6.1       Term. The term of this Agreement will commence on the Effective Date and will continue for so long as Customer maintains any active Licenses.

              6.2         

Termination for Cause. Either party may terminate this Agreement or any License Term for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of the 30-day period, 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.

              6.3         

Effect of Termination. If Customer terminates this Agreement or any License Term in accordance with Section 6.2, then Verkada will refund Customer a pro rata portion of any prepaid fees allocable to the remaining License Term. The following provisions will survive any expiration or termination of the Agreement: Sections 8, 9, 10, 12, and 13, and any other provisions that, by their nature, would reasonably be considered intended to survive.

7.              FEES AND SHIPPING

              7.1         

Fees. If Customer purchases the Products directly from Verkada, then Customer will pay the fees for the Products set forth on the applicable Purchase Order. Any terms included by Customer on a Purchase Order that conflict with the terms of this Agreement will not be binding on Verkada. Following acceptance of the Purchase Order, and shipment of the Products, Verkada will submit an invoice to Customer for the Products, and payment will be due 30 days from the date of the invoice (the “Due Date”). Verkada will ship all Hardware to the location specified on the Purchase Order Ex Works (INCOTERMS 2010) Verkada’s shipping point, at which time title and risk of loss will pass to Customer. If Customer purchases the Products from a Partner of Verkada, then all payment and shipping terms will be as agreed between Customer and such Partner.

              7.2         

Overdue Charges. If any undisputed, invoiced amount is not received by Verkada by the Due Date, then (i) those charges may accrue late interest at the rate of 3.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and (ii) Verkada may condition the purchase of future Products on receipt of payment for previous Product and/or payment terms shorter than those specified on the previous Purchase Order.

              7.3         

Taxes. The fees payable hereunder are exclusive of any sales taxes (unless included on the invoice), or similar governmental sales tax type assessments, excluding any income or franchise taxes on Verkada (collectively, “Taxes”) with respect to the Products provided to Customer. Customer is solely responsible for paying all Taxes associated with or arising from this Agreement and shall indemnify, hold harmless and reimburse Verkada for all Taxes paid or payable by, demanded from, or assessed upon Verkada.

8.              CONFIDENTIALITY

              8.1         

Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information”). Verkada’s Confidential Information includes the Products and any information conveyed to Customer in connection with Support. Customer’s Confidential Information includes Customer Data. Confidential Information does not include information which is (i) already known by the receiving party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the Disclosing Party; or (iv) independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.

              8.2         

Confidentiality Obligations.  Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives.

              8.3         

Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.

9.              DATA PROTECTION

              9.1          

Security

 Verkada secures the Software and Customer Data in accordance with the security practices available at www.verkada.com/support/security-standards.

              9.2         

No Access. Except for the Customer Data, Verkada does not (and will not) collect, process, store, or otherwise have access to any information or data, including personal information, about Users, Customer’s network, or users of Customer’s products or services.

10.              OWNERSHIP

              10.1         

Verkada Property. Verkada owns and retains all right, title, and interest in and to the Software, and all intellectual property embodied in the Hardware. Except for the limited license granted to Customer in Section 2.1, Verkada does not by means of this Agreement or otherwise transfer any rights in the Products to Customer, and Customer will take no action inconsistent with Verkada’s intellectual property rights in the Products.

              10.2         

Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means this Agreement or otherwise transfer any rights in the Customer Data to Verkada, except for the limited license set forth in Section 2.2.

11.              INDEMNIFICATION

              11.1         

By Verkada. Verkada will indemnify, defend, and hold Customer, its affiliates, and their respective owners, directors, members, officers, and employees (collectively, “Customer Indemnitees”) harmless from and against any claim, action, demand, suit or proceeding (each, a “Claim”) made or brought by a third party against any of the Customer Indemnitees alleging that Customer’s use of the Products infringes or misappropriates any patent, trademark, copyright, or any other intellectual property of such third party. Verkada will pay any damages finally awarded against any Customer Indemnitees by a court of competent jurisdiction as a result of any such Claim, or any final settlement of such Claim, so long as Customer (i) gives Verkada prompt written notice of the Claim, (ii) gives Verkada sole control of the defense and settlement of the Claim (provided that Verkada may not settle any Claim without the Customer Indemnitee’s written consent, which will not be unreasonably withheld), and (iii) provides to Verkada all reasonable assistance, at Verkada’s request and expense. If Customer’s right to use the Products hereunder is, or in Verkada’s opinion is likely to be, enjoined as the result of a Claim, then Verkada may, at Verkada’s sole option and expense procure for Customer the right to continue using the Products under the terms of this Agreement, or replace or modify the Products so as to be non-infringing and substantially equivalent in function to the claimed infringing or enjoined Products. Verkada will have no indemnification obligations under this Section 11.1 to the extent that a Claim is based on or arises from: (a) use of the Products in a manner other than as expressly permitted in this Agreement; (b) any alteration or modification of the Products except as expressly authorized by Verkada; (c) the combination of the Products with any other software, product, or services (to the extent that the alleged infringement arises from such combination); or (d) where the Claim arises out of specifications provided by Customer. This Section 11.1 sets forth Verkada’s sole and exclusive liability, and Customer’s exclusive remedies, for any Claim of infringement or misappropriation of intellectual property.

              11.2         

By Customer. Customer will indemnify, defend, and hold harmless Verkada, its affiliates, and their respective owners, directors, members, officers, and employees (together, the “Verkada Indemnitees”) from and against any Claim related to (a) Customer’s or a User’s engaging in a Prohibited Use, and (b) any and all acts or omissions of its Users. Customer will pay any settlement of and any damages finally awarded against any Verkada Indemnitee by a court of competent jurisdiction as a result of any such Claim so long as Verkada (i) gives Customer prompt written notice of the Claim, (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Verkada’s prior written consent which will not be unreasonably withheld), and (iii) provides to Customer all reasonable assistance, at Customer’s request and expense.

12.              LIMITATIONS OF LIABILITY

              12.1         

Disclaimer. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS AGREEMENT, VERKADA MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, INCLUDING UPDATES OR SUPPORT.  WITHOUT LIMITING THE FOREGOING, VERKADA HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. VERKADA DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS, THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.

              12.2         

Limitation of Liability. EACH PARTY HERETO AGREES THAT WITH THE EXCEPTION OF THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, AND ABSENT GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE OTHER PARTY (COLLECTIVELY, “EXCLUDED CLAIMS”), NEITHER THE OTHER PARTY NOR ITS AFFILIATES NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES OF ANY OF THEM WILL BE LIABLE TO SUCH PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.

              12.3         

Liability Cap. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO VERKADA UNDER THIS AGREEMENT DURING THE 24-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. IN THE CASE OF EXCLUDED CLAIMS, SUCH LIMIT WILL BE EQUAL TO THE TOTAL AMOUNT PAID BY CUSTOMER TO VERKADA UNDER THIS AGREEMENT DURING THE TERM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.

MISCELLANEOUS

This Agreement is the entire agreement between Customer and Verkada and supersedes all prior agreements and understandings concerning the subject matter hereof and may not be amended or modified except by a writing signed by authorized personnel by both parties. Customer and Verkada are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between Customer and Verkada. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties consent to personal jurisdiction and the exclusive venue of the courts in San Francisco County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent either (i) by overnight courier or certified mail (receipt requested), in the case of Customer to Customer’s address on record in Verkada’s account information and in the case of Verkada, to the address listed above, or (ii) by electronic mail to Customer’s email address on record in Verkada’s account information or to Verkada at [email protected] If any provision of this Agreement is found unenforceable, the Agreement will be construed as if such provision had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets.