TERMS OF SALE
These Terms of Sale together with the applicable order(s) (this “Agreement”) govern the purchase and use of Verkada’s enterprise video surveillance platform and related hardware (collectively, the “Verkada Offering”).
In the event of a conflict between the terms and conditions of the order(s) and the terms and conditions of these Terms of Sale, the terms and conditions of these Terms of Sale govern.
1. Verkada Offering.
Platform. Verkada grants to Company a non-exclusive right and license to access and use Verkada’s enterprise video surveillance platform for video security (“Platform”) including granting Company’s authorized employees (each, a “User”) the right to download and use the Platform for the Subscription Period (as set forth in the applicable order) solely for Company’s internal purposes.
Hardware, Delivery and Installation. The specifications for the cameras (“Hardware”) are outlined at https://www.verkada.com/products and incorporated into this Agreement by reference. All shipments of Hardware will be FOB (Incoterms 2010) at the delivery point designated in the applicable order (“Delivery Point”). Verkada fulfils its obligation to deliver when it has made the Hardware available to Company at the Delivery Point. Risk of loss to the Hardware and title to the Hardware will pass to Company when the Hardware reaches the Delivery Point.
Support. Verkada use commercially reasonable efforts to provide the technical maintenance and support services outlined at https://www.verkada.com/support (“Support Terms”), and the Support Terms are incorporated into this Agreement by reference.
Trial. If the Verkada Offering is provided on a trial/pilot basis, during the Trial Period (as set forth in the applicable order), notwithstanding any terms to the contrary in this Agreement, (a) the Hardware and the Platform are provided “AS IS” and no warranty or indemnification obligations of Verkada will apply, (b) Company may terminate this Agreement and all of its rights hereunder by providing Verkada with written notice of termination no less than 10 days prior to the end of the Trial Period, otherwise, this Agreement will continue in effect for the Subscription Period (subject to earlier termination as provided in this Agreement, and (c) if Company elects to terminate this Agreement (as set forth in subsection (b)), Company must immediately either (i) pay Verkada for the Hardware, or (ii) return the Hardware (at Company’s expense) to Verkada.
2. Use Requirements.
Company Data — Company Retains Ownership. Company grants to Verkada a non-exclusive right and license to reproduce, modify, and store the electronic data provided by Company via the Platform (“Company Data”) solely to provide the Verkada Offering. Company possesses the necessary rights and consents to grant Verkada the rights set forth in this Agreement with respect to the Company Data. Company owns all right, title and interest in and to the Company Data (subject to the limited grant set forth in this Agreement).
Passwords. Company is responsible for maintaining the confidentiality of its User passwords, IDs or other credentials and login information (collectively, “Passwords”), and Company agrees that Verkada has no liability with respect to the use of any Passwords. Company must notify Verkada immediately if Company has reason to believe that the security of Company’s account has been compromised or if the Platform has been accessed by any unauthorized individuals.
3. Fees and Payment Terms.
Hardware. The price for each unit of Hardware is set forth in the applicable order(s), and all such amounts must be paid to Verkada within 30 days of receipt of the Hardware (unless otherwise stated in the applicable order). All installation fees and the payment of such fees will be handled directly between Company and the third-party installer (if any).
Platform. In exchange for Company’s right to use the Platform, Company will pay to Verkada the Subscription Fees (as set forth in the applicable order). The Subscription Fees do not include taxes. Unless Verkada states otherwise, all payments must be made (a) in U.S. Dollars, and (b) by check or a payment card via an authorized Verkada payment processor. If payment is made via a payment card, Company represents and warrants that Company is authorized to use and have fees charged to the payment card number Company provides to Verkada.
Interest and Additional Terms. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Company will be responsible for, and will pay all sales and similar taxes on, all license fees and similar fees levied upon the provision of the Verkada Offering, excluding only taxes based solely on Verkada’s net income. Notwithstanding any terms to the contrary in this Agreement, (a) Verkada, at its sole discretion, may modify its pricing during any Subscription Period (as defined in the applicable order), provided that modifications will only be effective as of the directly subsequent Subscription Period, and (b) Verkada will not be obligated to issue any refunds for Subscription Fees paid.
4. Term, Termination and Effects of Termination.
Term. Unless terminated as set forth in this Agreement, the term of this Agreement will be for the Subscription Period, and thereafter this Agreement will automatically renew for successive periods equivalent to the length of the Subscription Period, unless a party terminates this Agreement by providing the other party with written notice of its desire to terminate this Agreement no less than 60 days prior to the close of the then-current Subscription Period.
Termination. Company may terminate this Agreement, for convenience, at any time with 60 days’ advance written notice to Verkada. Either party may terminate this Agreement, for cause, if the other party breaches this Agreement and does not remedy such breach within 30 days after its receipt of written notice of such breach. Further, Verkada may suspend use of the Platform without liability if Verkada is required by any applicable laws to suspend the Platform.
Effects of Termination. Upon any expiration or termination of this Agreement (a) all rights and licenses granted to Company under this Agreement will immediately terminate, and (b) Company will immediately pay to Verkada all amounts due and payable up to the effective date of termination of this Agreement. No refunds will be issued. Notwithstanding any terms to the contrary in this Agreement, this paragraph and Sections 3, 6, 7, 8, 9 and 10 will survive any termination or expiration of this Agreement.
5. Hardware Warranty and Remedy.
Verkada warrants to Company that the Hardware provided to Company will conform, in all material respects, to the specifications set forth at https://www.verkada.com/products (“Hardware Warranty”) for a period of ten years commencing upon the date of delivery of the applicable Hardware to Company (“Warranty Period”), provided that Company has paid all amounts due and payable under this Agreement. The Hardware Warranty is incorporated into this Agreement by reference. Notwithstanding any terms to the contrary in this Agreement, the foregoing Hardware Warranty (a) applies only to Company, (b)is void if a failure of the Hardware has resulted from any accident, abuse or misuse, or any unauthorized use of the Hardware, and (c) is void if this Agreement is terminated or the subscription is otherwise suspended (even if renewed).
If the Hardware does not meet the Warranty within the applicable Warranty Period, Verkada will use commercially reasonable efforts to repair or replace the defective Hardware. Company’s sole and exclusive remedy is to receive from Verkada repaired hardware or replacement hardware that is functionally substantially similar to the original Hardware. Company must contact Verkada for evaluation and service procedures. Returned Hardware must be packaged within industry standard protective packaging and accompanied by a complete and detailed description of the defect. If any Hardware returned pursuant to this Section 5 is found to be free of material defects, or is not returned in compliance with the requirements set forth in this Section 5 and the instructions provided by Verkada, the Warranty will be void and Company will be responsible for shipping costs. Verkada, in its sole discretion, will determine whether the returned Hardware will be repaired or replaced. All returned Hardware replaced by Verkada will be owned solely by Verkada.
6. Disclaimer. EXCEPT AS SET FORTH IN SECTION 5, THE VERKADA OFFERING IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND (EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. FURTHER, VERKADA WILL NOT BE LIABLE FOR THE installation OF THE HARDWARE OR ANY RELATED MATTERS.
Verkada Indemnification. Verkada, at its sole expense, will defend Company from and against any and all third-party claims, suits, actions or proceedings (each a “Claim”), and indemnify Company from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Verkada resulting from or arising in connection with the Verkada Offering (in the form provided to Company and excluding any Company Data) infringing any Intellectual Property Rights (as defined below) of any third party, or any negligence or willful misconduct by Verkada or any party acting on behalf of Verkada.
Company Indemnification. Company, at its sole expense, will defend Verkada from and against any and all Claims, and indemnify Verkada from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Company resulting from or arising in connection with the Company Data or any misuse of the Verkada Offering.
Procedures. The indemnifying party’s indemnification obligations under this Section 7 are conditioned upon the indemnified party: (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party’s obligations under Section 7 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims); (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
8. Limitation of Liability.
Consequential Damages Waiver. EXCEPT FOR (A) INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, OR (B) EACH PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 7, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
Liability Cap. EXCEPT FOR (A) INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OF A PARTY, OR (B) EACH PARTY’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 7, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY COMPANY TO VERKADA DURING THE SUBSCRIPTION PERIOD WITHIN WHICH THE DAMAGES OCCURRED. FURTHER, NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, (I) THE SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF ANY SERVICE LEVEL STANDARDS ARE THE CREDITS PROVIDED UNDER THIS AGREEMENT, AND (II) VERKADA WILL NOT BE LIABLE FOR ANY DISCLOSURE OF, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS TO ANY COMPANY DATA OR OTHER DATA UNLESS SUCH DISCLOSURE, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS SOLELY AND DIRECTLY RESULTS FROM VERKADA’S FAILURE TO MEET THE SECURITY STANDARDS (AS DEFINED BELOW).
Failure of Essential Purpose. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 8 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Service Level Standards and Security. Verkada will use commercially reasonable efforts to meet the service level standards applicable to the Platform described at https://www.verkada.com/support/sla (“Service Level Standards”) and the security standards described at https://www.verkada.com/support/security-standards (“Security Standards”). The Service Level Standards and Security Standards are incorporated into this Agreement by reference.
Except as expressly authorized by this Agreement, Company may not (a) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Platform, (b) use the Platform to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions, (c) build a competitive product or service, or copy any features or functions of the Platform, (d) interfere with or disrupt the integrity or performance of the Platform, (e) remove, alter or obscure any proprietary notices in or on the Platform including copyright notices, (f) disclose or make available Passwords that Verkada has provided to Company or the Users, or (g) cause or permit any User or third party to do any of the foregoing.
10. General Provisions.
Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California will be the jurisdiction in which any suits should be filed if they relate to this Agreement.
Ownership. As between the parties and subject to the grants expressly set forth in this Agreement, Verkada owns all right, title and interest in and to the Platform and Verkada Analytic Data (as defined below), together with any and all Intellectual Property Rights embodied in or relating to the foregoing. “Intellectual Property Rights” means all patent rights, copyrights, moral rights, trademark rights, trade secret rights and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing
Verkada Analytics. Company acknowledges and agrees that, notwithstanding any terms to the contrary in this Agreement, Verkada may monitor, collect, use and store anonymous and aggregate statistics regarding use of the Platform and/or any individuals/entities that interact with the Platform and any Company Data (collectively, “Verkada Analytic Data”).
Publicity. In the event that Company provides its prior written consent, Verkada may issue a press release with respect to Company’s use of Verkada’s products and services. Company consents to Verkada’s use of Company’s name and logo on the Verkada websites and publicly-available printed materials, identifying Company as a customer of Verkada and describing Company’s use of Verkada’s products and services.
Electronic Communications. Verkada may choose to electronically deliver all communications with Company, which may include email to the email address Company provides to Verkada. Verkada’s electronic communications to Company may transmit or convey information about action taken on Company’s request, portions of Company’s request that may be incomplete or require additional explanation, any notices required under applicable law, and any other notices. Company agrees to do business electronically with Verkada and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email
Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, either party may assign this Agreement without other party’s prior written consent to any third party that purchases all or substantially all of such party’s business or assets by merger, acquisition, sale, reorganization, or otherwise. Subject to the other terms and conditions set forth in this provision, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
Waiver and Severability. A party’s delay or failure to exercise a right or remedy will not result in a waiver of that right or remedy. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable under the governing law, the remaining provisions will remain in full force and effect, and will be construed so as to most nearly reflect the parties’ intent with respect to such provision.