Milestone Kite™ Terms of Service
A. YOUR USE OF THE SOLUTION (DEFINED BELOW) IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF AND AGREEMENT TO THESE TERMS OF SERVICE. PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SOLUTION AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS.
B. These Milestone Kite™ Terms of Service (this “Agreement”) states the terms and conditions under which Milestone Systems A/S (collectively, “Milestone” or “We” or “Our” or “Us”) will agree to allow You (“You” or “Your”) to use the Milestone Kite cloud-based video management and access control solution (“Solution”). By accessing or using the Solution, You agree to the terms and conditions of this Agreement. By accessing or using the Solution, You accept, without limitation or qualification, this Agreement. If You do NOT accept this Agreement, You must immediately discontinue Your access and use of the Solution and You may NOT access or use the Solution. Milestone and You are also referred to herein individually as a “Party” and collectively as the “Parties.”
“You” means the entity you represent in accepting this Agreement. If you are accepting on behalf of your employer or another entity, you represent and warrant that (i) you have legal authority to bind your employer or such entity to this Agreement, (ii) you have read and understand this Agreement, and (iii) you agree to this Agreement on behalf of the entity that you represent. If you do not have the legal authority, you must not click “I agree” (or similar checkbox) that is provided to you.
C. In order to deliver the Solution to You, Milestone has engaged with Arcus Holding A/S (Denmark) which owns all right, title and interest in and to the Solution as well as necessary licenses. Whereas Arcus Holding A/S has engaged with Arcules, Inc. (the USA, California) for the provision of the Solution on behalf of Arcus Holding A/S. While retaining the contractual relationship under this Agreement between You and Milestone as well as Milestone remaining a licensor and a service provider hereunder, the Solution is operated and managed by Arcules, Inc. on behalf of Milestone. Respectively, the Solution is powered by Arcules, Inc., and Milestone provides the Solution and warranties hereunder that are covered by Arcules, Inc.
D. This Agreement also incorporates by reference the Data Processing Addendum (“DPA”), including the Standard Contractual Clauses, entered into between You and Us, if any. The DPA is provided and published on Milestone website. By accessing or using the Solution, You also agree to and accept the terms and conditions of the DPA. In the event of a conflict between the terms of this Agreement and the DPA, the DPA will control.
E. We may make changes to this Agreement, including the Data Processing Addendum and the Service Level Addendum, from time to time. We may notify You of such changes by any reasonable means, including without limitation, by making available the revised version of this Agreement through or in connection with the Solution. You may determine when We last changed this Agreement by referring to the “LAST UPDATED” legend above. Your access to or use of the Solution following changes to this Agreement will constitute Your acceptance of those changes. Your initial and continued use of the Solution may be subject to Your electronic acceptance (e.g. clickthrough) of this Agreement in connection with Your access to the Solution.
1.0 SUBSCRIPTION TERMS.
1.1 Solution. Your access to and use of the Solution for the given period is defined by a Service SKU that is purchased by You and constitute Your subscription to the Solution for the purpose of this Agreement. The Solution is comprised of Your subscription as described in Your Solution account under subscription section, the Embedded Software (defined below) and the Apps (defined below); but does not include Your internet browser (which serves as the primary access for the Solution) or Gateways (defined below). For the avoidance of doubt, subject to your purchased subscription, the Solution includes without limitation, the Apps, Milestone Kite analytics, algorithms, and applications within the Solution, and upgrades or changes We make to the Solution over time, and all related patents, copyrights, trademarks, trade secrets, software, technology, know-how, inventions (whether or not patentable) and all other proprietary and intellectual property (“IP”) rights related thereto. For avoidance of doubt, the Solution does not include hardware (e.g., cameras, etc.) You purchase outside of this Agreement to be used in connection with the Solution, Other Applications (defined below) or any analytics or algorithms related to the foregoing.
(a) License. Subject to Your compliance with the terms and conditions in this Agreement and Your payment of any applicable fees, Milestone grants to You a limited, revocable, non-exclusive, non-sublicensable, non-transferable and non-assignable license only to install and use the Solution for Your applicable subscription term set forth in Your Solution account; and for no other purpose or under any other condition whatsoever (“License”). The License does not include any permission to create any Modifications (defined below) of or to the Solution.
(b) Apps. In addition to accessing and using the Solution via a web browser, You may download Milestone Kite mobile applications or installable clients to access the Solution (“Apps”). For avoidance of doubt, the terms of this Agreement also govern and control your use of the Apps.
(c) Embedded Software. The “Embedded Software” is the portion of the Solution that is installed on the Gateway. Subject to Your compliance with the terms and conditions in this Agreement and Your payment of any applicable fees (including purchase of the applicable Gateway), Milestone grants to You a limited, non-exclusive, non-sublicensable, non-transferable, and non-assignable license only to use the Embedded Software on the applicable Gateway for the term set forth in Your Solution account for the purpose of Your subscription only and for no other purpose or under any other condition whatsoever (“Embedded Software License”). The Embedded Software License does not include any permission to create any Modifications of or to the Solution. We warrant that the Embedded Software will be substantially free from defects in workmanship and materials under normal use, maintenance and service (“Embedded Software Warranty”), for a period of Your subscription as defined in Your Solution account, however not exceeding the duration of Your Gateway warranty, cf., Section 1.11 (Gateway). Should the Embedded Software fail within this warranty period, Milestone or a third-party on behalf of Milestone shall repair, replace or provide an equivalent product/service, all to be determined in Our sole discretion. To start the Embedded Software Warranty process, You must contact Your Milestone Partner for a technical support case to be raised with Milestone which could result either (i) in the software update as defined in this Section 1.1 (c) or (ii) in the Return Material Authorization process (“RMA”) and RMA number for the failed Embedded Software will be issued. Upon receipt of the failed Embedded Software (remotely accessed by Milestone or a third-party on Milestone’s behalf or sent by You in accordance with the RMA instructions) or in the event that Milestone determines in its sole discretion that it will provide an on-site inspection of the failed Embedded Software, Milestone or a third-party shall inspect such Embedded Software to determine if it is proven to be defective. If the Embedded Software is deemed to be defective (to be determined in Milestone’s sole discretion), Milestone or a third-party on Milestone’s behalf shall either repair, replace or provide an equivalent product/service to You. Your exclusive remedy under the Embedded Software Warranty is to receive repaired or replaced Embedded Software or equivalent product/service, and Milestone’s sole obligation and liability under this Embedded Software Warranty is to ensure You are issued repaired or replaced Embedded Software or equivalent product/service.
(d) Ownership. You acknowledge and agree that Milestone, or its licensors or affiliates, owns all right, title and interest in and to the Solution, including without limitation, all related IP rights, text, data, audio, graphics, files, interfaces, algorithms, other information and materials originating in the Solution, and any translations, improvements, corrections, adaptations, derivatives, enhancements, changes, additions, revisions and other modifications (collectively, the “Modifications”) made to the Solution. All rights in and to the Solution not expressly granted in this Agreement are reserved to Milestone and its licensors, and no additional licenses are granted or implied hereunder.
(e) Your Solution Account. Your Solution account describes the terms of Your subscriptions, locations where You will use the Solution, data retention period, restrictions and responsibilities, and other subscription details.
(f) Milestone Partner. In order to implement, access and use the Solution, You need to work with Your Milestone Partner (defined as Your Milestone reseller or the company that orders via a Milestone Distributor Partner and helps you to select and manage Your subscription for the Solution, necessary hardware, installation, maintenance, infrastructure and/or support) to assist in ordering, selecting, managing, installing and setting up Your subscription, hardware and network and providing support and maintenance if You have any issues with the Solution. With respect to the Solution and the Gateway, You agree and acknowledge that, unless otherwise expressly agreed in writing separately between You and Your Milestone Partner, in no event will Your Milestone Partner be deemed to add or grant You any warranty which is greater than those described in this Agreement solely by virtue of the fact that Your Milestone Partner has acted in a capacity of integrator or reseller to You, nor will it be deemed to assume any liability in excess of what Milestone assumes under this Agreement, except in a case of Your Milestone Partner’s own willful misconduct or gross negligence. In particular, You agree that the exclusions and limitation of liability under Section 1.11 (Gateway) and Section 4.0 (Disclaimers; Limitations of Liability; Indemnification) shall operate to the benefit of Your Milestone Partner to the same extent such provisions operate to the benefit of Milestone. Milestone is not responsible for ordering, selecting, setting up or managing Your cameras or network infrastructure, and You are responsible for ensuring You have the necessary systems, hardware, software, cameras and network connectivity necessary to use the Solution.
This Agreement exclusively governs Your access to and use of the Solution, and any legal terms agreed between You and a Milestone Partner concerning the Solution or Your subscription will have no legal force or effect on Milestone and Your subscription. Milestone is not a party to the supply and/or service agreement between You and Your Milestone Partner and, therefore, Milestone is not subject to and Milestone is not responsible for the terms of such agreement, neither directly nor indirectly. The terms and conditions under which the Solution is provided to You by Milestone are defined by this Agreement solely.
(g) Updates. As the Solution is hosted in a cloud environment, Milestone may provide automatic updates. Updates of the Apps on Your devices and Embedded Software on Your Gateways may be required for continued use of the Solution. If You do not update the Apps and/or Embedded Software, Milestone does not guarantee continued support for the outdated versions of the Apps, Gateways and Embedded Software, and Your access and use of the Solution with those outdated Apps, Gateways and Embedded Software may be affected.
1.2 Your Content. “Your Content” is all of Your data (including third-party data) in the Solution, which includes the Video Data (defined below), connected devices data, user information, access-control information (physical access credentials), analytics data, structured data and information related to the data and associated with “Other Applications” (defined as any “internet-of-things” connected devices, including without limitation, access control systems, third-party software, hardware and analytics, and anything else not provided by Milestone). In order to provide the Solution to You, You grant Milestone a limited, sublicensable (through multiple tiers), assignable and transferrable license to Your Content to operate and maintain the Solution for Your benefit. We agree to keep Your Content secure (as described in Sections 2.0 and 6.2 hereof).
(a) Video Data. Milestone will access, view, or use Your video data which You transmit through the Solution (“Video Data”) for the purpose of fulfilling its obligations under this Agreement and the provision of the products, services and support hereunder and in accordance with any authorization granted in the DPA. Milestone will not access, view, or use Your Video Data for any other purpose without specific authorization from You. Milestone will not share the Video Data with any third-party without Your prior permission; however, in the following cases, Milestone may provide the Video Data to a third party without prior permission from You: (i) when required by law, (ii) when it is necessary to protect the life, body or property of a person, (iii) when it is particularly necessary to improve or promote public health or the sound development of children, (iv) when We are compelled or deem it advisable to cooperate with a governmental agency or respond to a legal request such as a subpoena or court order, (v) when the Video Data is provided in connection with a merger, acquisition, or the transfer of the business or its assets, (vi) when it is processed, stored, transmitted, or managed by a Milestone subcontractor or affiliate, or (vii) as otherwise permitted herein or in the DPA. Milestone will not use the Video Data for marketing or advertising.
(c) Feedback. You may give us feedback, requirements and other recommendations (“Feedback”) about the Solution. You acknowledge and agree that We own all right, title and interest in and to the Feedback so that We may freely use any Feedback in any manner We deem appropriate.
(d) Third Party Provider. The Solution is operated on cloud infrastructure and platform(s) provided by one or more third-party service providers, such as Google Cloud. Your Content will be hosted in a Google Cloud Platform that is located in the region designated by You during the set-up of Your Solution account, i.e., either within the EEA, USA or Japan. Respectively, subject to the DPA and Your instructions, You agree and acknowledge that any part of You Content, which includes the Video Data and any other data, may be forwarded to and stored in the servers of the third-party service provider(s) which may be located outside of your home jurisdiction. Milestone will prohibit any such third-party service provider from accessing Your Content to the extent required by applicable law or the DPA.
1.3 SLA. Milestone shall provide the Solution substantially in accordance with the Service Level Addendum as may be updated from time to time (“SLA”). The SLA is provided and published on Milestone website.
1.4 Unauthorized Use. You represent and warrant that You will not: (a) use the Solution in any way that would violate any applicable law, including, but not limited to, laws applicable to discrimination and human rights; (b) permit any of Your employees or others who You allow to access Your account (only for Your internal business purposes), to use the Solution to store or transmit any data that infringes, violates, or misappropriates (collectively, “Infringes”) third-party rights, including without limitation, privacy, moral or IP rights, or is libelous, fraudulent, obscene, defamatory, threatening, abusive, unlawful, tortious, pornographic, offensive or otherwise harmful (in Our sole and absolute discretion); (c) change, revise, or otherwise create Modifications of the Solution; (d) license, sublicense, sell, rent, lease, transfer, assign, distribute, time share, host, or otherwise commercially exploit the Solution; (e) reverse engineer, modify, decompile, or otherwise attempt to get the source code of the Solution, or work around technical protections or limitations in the Solution; (f) upload or store within the Solution any viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Solution or data contained therein; or (h) attempt to gain unauthorized access to the Solution or its related systems or networks. For avoidance of doubt, if You share or distribute video or analytics data (including without limitation Your Content) that a third-party claim Infringes its rights, You agree to indemnify, defend and hold Milestone Indemnitees (defined below) pursuant to Section 4.3(c) hereof.
1.5 Access Information and Other Users. You are responsible for: (a) maintaining the confidentiality of Your usernames, passwords, and any other log-in information for the Solution (“Access Information”); (b) any activities that occur under Your Access Information, including without limitation, any user You allow or otherwise authorize to access or use Your account, including the Milestone Partner that sold you the subscription to the Solution, regardless of whether such access is provided directly by You or indirectly by Milestone per your instructions or other authorization (e.g. email); and (c) promptly notifying Milestone of any unauthorized access or use of the Solution. You may add users to Your Solution account, i.e., Your employees and consultants, and You may also provide access to Your Solution account to Your Milestone Partner, subject to your discretion and subject to the terms of this Agreement. You are responsible for ensuring that any additional user added to Your Solution account adheres to this Agreement. You may not sell or provide access to Your account to Your customers, or provide user credentials as a service to any third-party. You will promptly revoke user access when appropriate and maintain appropriate standards for user permissions and use of the Solution. For avoidance of doubt, neither Milestone nor Your Milestone Partner will be responsible or liable for any costs, damages, fees, losses, or other liability resulting from Your failure to comply with this Section 1.5.
1.6 Consent to Operational Emails and Texts. During the term of Your Solution subscription, We will need to communicate with You regarding the Solution via the first user of Your Solution account, i.e., the primary user, including without limitation, planned downtimes, features releases, account management, or other aspects of the Solution. You agree that We may send You emails or text messages (depending on the contact information of the primary user that You provide and Your preferred communication method) for these purposes. You are responsible for maintaining Your contact information accurate and up to date, including any change of the primary user.
1.7 Your Responsibilities and Warranties. You represent and warrant that: (a) You have the authority to enter into this Agreement; (b) You will comply with the terms and conditions of this Agreement; (c) You will comply with all laws and regulations applicable to You that concern (i) use or placement of video cameras, (ii) collection of the Video Data and any analytics data (which may include any video and analytics data deemed to contain personal information), (iii) transference of such data to Milestone’ cloud environment, and the use of personal information by Milestone for the purposes specified herein; (d) If Your Content is governed by the laws of Japan, Your Content does not contain any Personal Data, Sensitive Personal Information, or Specific Personal Information stipulated in the “Personal Information Protection Law of Japan”, or, if contains such data, You have taken necessary measures as required by such Law and/or “the Act on the Use of Numbers to Identify a Specific Individual in Administrative Procedures of Japan”; (e) You will only use the Solution for Your own internal business purposes and for crime prevention or legitimate surveillance; (f) You will not use the Solution in any hazardous or high-risk environments requiring fail-safe performance, in which the failure or malfunction of the Solution could lead to death, personal injury, illness, or severe physical or property damage; (g) You have sole responsibility for the accuracy, quality, integrity, legality, reliability, privacy, use and appropriateness of all Your Content and all liability related to the foregoing; (h) You will not permit users to whom You grant access to the Solution to use it in any U.S., EU, or UK embargoed and/or sanctioned country, or a country embargoed and/or sanctioned by the United Nations, or in violation of any applicable export laws; and (h) You have the right to grant Milestone any license provided for herein or in the DPA to use Your Content; and (i) Your Content does not infringe, violate, or misappropriate any IP right, moral, privacy or other proprietary right of any third-party. Milestone’ responsibility is to adhere to Your instructions regarding how to process any of Your Content or other data on Your behalf. If You issue instructions to Us regarding the processing of Your Content or other data You transfer to Us (including without limitation, changing the location of servers housing Your data or changing any aspect of the Solution to adjust data flows), and such instructions would prevent or limit our ability to provide the Solution, or require material or costly changes to it, We may limit or adjust or terminate Your subscription accordingly without obligation to You after bringing the matter to Your attention and without any right for You to claim damages, refunds, or any compensation.
1.8 Other Services. You may refer to Your Milestone Partner to help select and purchase software and hardware, install and set up cameras and network infrastructure, implement and configure the Solution, and to provide support and maintenance if You have any issues.
1.9 Exceeding Subscription Parameters. Your Solution account describes terms of Your subscription, including the maximum number of subscriptions to be used with the Solution, maximum storage constraints, resolution necessary to be used with the Solution, video and analytics data retention period, analytics usage, and other subscription-specific information, all of which determines the price for the subscription. If You exceed any of the limits described in Your Solution account, or change settings in such a way that would increase parameters of Your subscription and/or Milestone’s costs of providing the Solution, then Your Milestone Partner or Milestone will contact You to adjust Your subscription terms or otherwise address the matter. If We are unable to agree on adjusted terms, Milestone may limit Your use of the Solution.
1.10 Solution Integrity. You are prohibited from breaching or attempting to breach any security features of the Solution, or from accessing it in ways other than those provided by Milestone. This prohibition includes without limitation: (a) accessing content or materials not intended for You, or logging on to an account that You are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Solution unless We have given You prior written permission to do so; or (c) accessing or attempting to access the Solution by any means (automated or otherwise) other than through the currently-available, published and enabled interfaces provided by Milestone. You must not simulate the appearance or function of the Solution, or try to distribute it as Your own product, or remove any IP rights notices in the Solution.
1.11 Gateway. In order to use the Solution, a Milestone gateway hardware device with the Embedded Software (the “Gateway”) must be purchased from Your Milestone Partner. If You have purchased a Gateway from Your Milestone Partner, We warrant the Gateway will be substantially free from defects in workmanship and materials under normal use, maintenance and service (“Gateway Warranty”), for a period of five (5) years which begins on the date the Gateway is delivered to You. Should a Gateway fail within this warranty period, Milestone or a third-party on behalf of Milestone shall repair, replace or provide an equivalent product/service, all to be determined in Our sole discretion. To start the Gateway Warranty process, You shall contact Your Milestone Partner to initiate a technical support case and, if necessary, a Return Material Authorization (“RMA”) number for the failed Gateway will be issued. Upon receipt of the failed Gateway (sent by You in accordance with the RMA instructions) or in the event that Milestone determines in its sole discretion that it will provide an on-site inspection of the failed Gateway, Milestone or a third-party shall inspect such Gateway to determine if it is proven to be defective. If the Gateway is deemed to be defective (to be determined in Milestone or the third-party’s sole discretion), Milestone or a third-party shall either repair, replace or provide an equivalent product/service to You. Your exclusive remedy under the Gateway Warranty is to receive a repaired or replaced Gateway or equivalent product/service, and Milestone sole obligation and liability under this Gateway Warranty is to ensure You are issued a repaired or replaced Gateway or equivalent product/service. Returns of a Gateway without prior authorization by Milestone (via a RMA number) will be refused. No RMAs will be issued after five (5) years from the date the Gateway was delivered to You. The Gateway Warranty is null and void if You do not remain a continuing subscriber of the Solution from the date the Gateway was delivered to You. The Gateway Warranty does not cover: (a) any Gateway that was provided on an unpaid or free basis; (b) defects to the Gateway due to accident, abuse, unauthorized use, service, alteration, modification or improper installation or configuration by You, Your personnel, or any third-party not engaged by Us; or (c) defects based on Your failure to use the Gateway in accordance with its documentation and this Agreement. You acknowledge and accept that possible new functions and capabilities added to the Solution during the duration of Your subscription may not be compatible with Your Gateway and/or the Embedded Software, and hence not available to You, until the Gateway has been upgraded to a newer version. Any such required upgrade of the Gateway is not covered by this Gateway Warranty.
For the avoidance of doubt, the Gateway defined herein excludes any third-party equipment or other hardware not purchased from Milestone, directly or through Your Milestone Partner. The Solution cannot be used with non-Milestone gateway devices. The use of any non-Milestone gateways is on Your responsibility; neither Milestone nor Your Milestone Partner will assume any liability, responsibility whatsoever, with respect to, including, without limitation, Your use, non-use, the warranties and obligations under this Agreement or Service Level Agreement.
1.12 Open Source. Certain components or libraries included in the Solution may be covered by open source licenses. To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this Agreement where appropriate, only with respect to those open source licenses. You shall comply with such open-source license agreements.
2.1 Duty. The Party receiving (“Receiving Party”) Confidential Information (defined below) from the Party disclosing (“Disclosing Party”) Confidential Information, will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Disclosing Party’s Confidential Information with the same degree of care, but no less than reasonable care, as used to protect the Receiving Party’s own Confidential Information of similar nature. The Receiving Party will limit the distribution and communication of the Disclosing Party’s Confidential Information to employees, affiliates, subsidiaries, subcontractors (including in the case of Milestone, Arcus Holding A/S and Arcules Inc.), or other agents of the Receiving Party, who have a need to know such Confidential Information in order to perform its duties under this Agreement and have confidentiality obligations and restrictions at least as strong as the ones in this Agreement. The Receiving Party shall not disassemble, reverse engineer, or otherwise decompile any of the Disclosing Party’s Confidential Information. The Receiving Party shall promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.
2.2 Confidential Information. “Confidential Information” means any non-public, proprietary or confidential information provided by the Disclosing Party, either directly or indirectly, to the Receiving Party under this Agreement that: (a) if in tangible or written information or materials, is marked as “confidential” (or with words of similar meaning) or that should reasonably be understood to be confidential given the nature of the information and circumstances of its disclosure; and (b) any disclosed information (whether disclosed orally or otherwise) that is reasonably understood to be confidential or proprietary. Your Confidential Information includes without limitation, Your Content and Access Information. Milestone Confidential Information includes without limitation, the Solution, Milestone software in the Gateways, No-Charge Offerings (defined below), specifications, development plans, related information and IP rights therein.
2.3 Exclusions. The obligations described above will not apply to any Confidential Information to the extent that the Receiving Party proves with its previous written records that such information: (a) was publicly known at the time it was disclosed or becomes publicly known through no fault or action of the Receiving Party; (b) was known to the Receiving Party, without restriction, at the time of disclosure; (c) was independently developed by the Receiving Party without any access to or use of the Disclosing Party’s Confidential Information; (d) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party; or (e) is disclosed by the disclosing Party to any third-party under no obligation of confidentiality to the Disclosing Party.
2.4 Compelled and Other Disclosure. If the Receiving Party is required, pursuant to a legal proceeding or other legal or regulatory requirement, to disclose any Disclosing Party Confidential Information (or Your Content, in the case of Milestone’s compelled disclosure by a governmental entity), reasonable prior notice will be given to Disclosing Party in order to contest, seek a protective order, or otherwise limit such disclosure. The Receiving Party shall reasonably cooperate with the Disclosing Party’s application for a protective order or other remedy, and the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. Either Party may disclose this Agreement or the terms herein to such Party’s financial and legal advisers and current and potential lenders, acquirors and investors under written terms of confidentiality. Nothing in this Agreement or any other agreement will be construed to preclude either Party from: (a) compliance with disclosure obligations imposed by the securities laws or regulations of any government entity or public stock exchange, and each Party consents to disclosures as required by such laws or regulations; or (b) disclosing this Agreement or the terms herein to such Party’s financial and legal advisers and current and potential lenders, acquirors and investors, under written terms of confidentiality.
3.1 Payments. You will pay subscription fees for purchased Service SKUs as well as fees for purchased Hardware SKUs to Your Milestone Partner in the amount, within the time and in the manner agreed between You and such Milestone Partner. All payment transactions for the Solution and Gateways are between You and Milestone Partner. Subject to the terms of this Agreement, Your purchased subscription will be valid and binding for the subscription term defined in Your Solution account. If You are delinquent in the payment of any invoice to Your Milestone Partner, Milestone may at its sole option suspend access to the Solution until such payment is made in full (with interest, if applicable).
3.2 Taxes. You will be responsible for the payment of all taxes which may be levied or assessed in connection with this Agreement, excluding taxes based on Your Milestone Partner’s or Milestone’s net income.
4.0 DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION.
4.1 DISCLAIMER. THIS SECTION 4.1 LIMITS OUR LIABILITY, SO PLEASE READ IT CAREFULLY. EXCLUDING THE LIMITED EMBEDDED SOFTWARE WARRANTY (DESCRIBED IN SECTION 1.1(C)) AND THE LIMITED GATEWAY WARRANTY (DESCRIBED IN SECTION 1.11 HEREOF), THE SOLUTION IS PROVIDED “AS-IS” AND MILESTONE DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SOLUTION, THE GATEWAY, SUPPORT, SERVICE LEVELS AND MILESTONE CONFIDENTIAL INFORMATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SECURITY, TITLE AND NON-INFRINGEMENT. EXCLUDING THE LIMITED EMBEDDED SOFTWARE WARRANTY AND THE LIMITED GATEWAY WARRANTY, WE DO NOT WARRANT THAT THE SOLUTION, GATEWAY, SUPPORT, SERVICE LEVELS OR MILESTONE CONFIDENTIAL INFORMATION WILL PERFORM WITHOUT ERROR OR INTERRUPTION OR WILL BE SECURE. IN PARTICULAR, YOU AGREE AND ACKNOWLEDGE THAT MILESTONE DOES NOT WARRANT THAT THE SOLUTION WILL AT ALL TIMES AND WITHOUT INTERRUPTION BE CAPABLE OF STORING OR TRANSMITTING YOUR CONTENT, AND THAT THERE MAY BE A CASE WHERE YOU MAY NOT STORE OR ACCESS YOUR CONTENT DUE TO REASONS FOR DEFECTS, FAILURE OR DISRUPTION OF THIRD-PARTY SERVICE PROVIDER’S EQUIPMENT, SOFTWARE, THE COMMUNICATION NETWORK, AND THE LIKE. YOU AGREE THAT YOUR PURCHASE OF THE SOLUTION IS NOT DEPENDENT ON THE AVAILABILITY OF ANY FUTURE FEATURES OR FUNCTIONALITY. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR ANY AUTOMATION FUNCTIONS, INCLUDING WITHOUT LIMITATION, SETTINGS RELATED TO ACCESS CONTROL, SECURITY, INFORMATION OR DATA GATHERED, ANALYTICS NOTIFICATIONS, “RULES” IN THE SYSTEM, AND OTHER APPLICATIONS. WE ARE NOT RESPONSIBLE FOR OTHER APPLICATIONS (INCLUDING, WITHOUT LIMITATION, THEIR AVAILABILITY, ACCURACY, SECURITY OR FUNCTIONING, OR ANY ERRORS, LOSS, OR DAMAGE OTHER APPLICATIONS MIGHT GENERATE OR CAUSE), YOUR MANAGEMENT OF SECURITY IN THE SOLUTION OR GATEWAYS, YOUR PHYSICAL PREMISES SECURITY, ANALYTICS PERFORMANCE, VIDEO AND ANALYTICS DATA GENERATED, OR ISSUES CONCERNING YOUR ACCESS CONTROL SYSTEM, CAMERA PLACEMENT, OR CAMERA USE POLICIES.
(a) No Security. You understand that use of the Solution requires transmission of Your Content over the Internet and through networks that are not owned, operated or controlled by Milestone, and Milestone will not be responsible for any of Your Content lost, altered, intercepted or stored across those networks. Milestone does not guarantee that its security procedures will be error-free, that transmissions of Your Content or other data will always be secure, or that unauthorized third-parties will never be able to defeat Milestone’s security measures or those of its third-party service providers. Accordingly, Milestone will not be liable for loss of your content, unauthorized use or disclosure of your content (even if considered your confidential information), including without limitation, interruption of use of the Solution, or special damages for cost of cover or replacement.
(b) High Risk. Milestone shall not be liable to You for use of the Solution in hazardous or high-risk environments requiring fail-safe performance, in which the failure or malfunction of the Solution could lead to death, illness, personal injury, or severe physical or property damage. Such use is at Your own risk, even if Milestone knows of such use, and Milestone expressly disclaims any express or implied warranty of fitness for such high-risk activities.
(c) Disclaimer of Liability For Third-Party Products. MILESTONE DISCLAIMS ANY AND ALL LIABILITY, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, FOR THIRD-PARTY PRODUCTS SUCH AS THE CAMERAS PURCHASED FROM THIRD-PARTIES BY YOU OR YOUR MILESTONE PARTNER AND USED IN CONNECTION WITH THE SOLUTION. YOU ACKNOWLEDGE THAT NO REPRESENTATION HAS BEEN MADE BY MILESTONE AS TO THE FITNESS OF THE THIRD-PARTY PRODUCTS FOR THE YOUR INTENDED PURPOSE.
4.2 Limitation of Liability. THIS SECTION 4.2 LIMITS THE LIABILITY OF BOTH PARTIES.
(a) Indirect Damages. Other than for Your violation of Section 1.4 (Unauthorized Use), to the maximum extent allowed under law, neither Party will be liable to the other Party or any third-party for any indirect, punitive, special, incidental, or consequential damages, or for interruption of business, loss of profits or revenue, even if either Party has been previously advised about the possibility or is aware of such damages, and whether any such claim is based in tort or contract.
(b) Direct Damages. To the maximum extent allowed under applicable law, Milestone’s liability for damages related to this Agreement will be limited to direct damages actually incurred up to the amount of fees paid for Your subscription to use the Solution during the six (6) months prior to the event giving rise to the claim, whether the claim is based in negligence, strict liability, breach of contract, warranty, or other contract or tort claim. This limitation on direct damages will not apply to: Your payment obligations, a breach of confidentiality obligations described in this Agreement, damages caused by willful misconduct or gross negligence, or to amounts payable under an indemnification obligation. Each Party agrees that it is not owed any duties or remedies not expressly described in this Agreement.
(a) By Milestone. If a claim by a third-party is brought against You that alleges that the Solution, as made available to You, infringes any IP Right in your country, or that an action by Milestone resulted in bodily injury, death, or physical property damage, then Milestone will defend You against the claim, and indemnify You against any damages that are confined in a final award or judgement against You by a court of competent jurisdiction to the benefit of the infringed third party or agreed in a written settlement negotiated and approved by Milestone. This protection extends to You and Your officers, directors and employees (“Your Indemnified Party(ies)”). If such a claim is made against You, You must provide Milestone with: (i) written notice of the claim within 20 days of receiving notice of a claim; (ii) all necessary assistance, information and authority necessary for Milestone to defend the claim and perform its obligations under this Section 4.3 (at Milestone’s expense); and (iii) sole control of the defense of such claim and all associated settlement negotiations. Milestone may not settle any claim against You that does not fully and unconditionally release Your Indemnified Parties from any liability for the indemnified claim. If a claim of IP right infringement is made or appears likely to be made with respect to the Solution, Milestone may, at its expense and sole choice, enable You to continue to use the affected Solution, modify it to make it non-infringing, replace all or portions of the Solution with a substantially functional, non-infringing equivalent, or terminate this Agreement in whole or with respect to the affected Solution and provide You with a prorata refund of pre-paid fees paid based on the effective date of termination and the then remaining term of the applicable subscription, if any (the refund may be through Your Milestone Partner). However, no refund will be provided for the Gateway. For purposes of clarification, the indemnifications set forth in this Section will be provided by Milestone directly to You.
(b) Exclusions From IP Indemnification. Milestone will have no liability or responsibility to defend or indemnify Your Indemnified Parties under Section 4.3(a) for any IP infringement claim based upon: (i) any information, data, component or application that is not exclusively owned by or licensed to Milestone (including without limitation, uploaded video recordings, video and analytics data, and Other Applications); (ii) any Modification of the Solution by a party other than Milestone; (iii) Your use of the Solution in combination with any non-Milestone product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (iv) the use of other than the latest release of the Solution if such claim could have been avoided by use of the latest unmodified release; (v) Your continuance of allegedly infringing activity after being notified about the infringement claim, or after being notified of Modifications (to be made at no cost) that would have avoided the alleged infringement; (vi) Your unauthorized use of the Solution; or (vii) if You settle or make any admissions with respect to a claim without Milestone’s prior written consent.
(c) By You. If a claim by a third-party is brought against Milestone or its affiliates, licensors of the Solution to Milestone, Your Milestone Partner, and their respective officers, directors, employees, or agents (“Milestone Indemnitees”) alleging damages arising from Your violation of Sections 1.4 (Unauthorized Use), 1.5 (Access Information and Other Users), 1.7 (Your Responsibilities), Your access control configurations, or Your collection of video and analytics data that is not in compliance with applicable laws, then You will defend the Milestone Indemnitees against the claim, and indemnify and hold harmless the Milestone Indemnitees against any damages that might result. In the event of such a claim, Milestone will provide You with: (i) prompt written notice of the claim; (ii) all necessary assistance, information and authority necessary for You to defend the claim (at Your expense); and (iii) sole control of the defense of such claim and all associated settlement negotiations. You may not settle any claim that does not fully and unconditionally release the Milestone Indemnitees from any and all liability for the indemnified claim.
5.0 TERM & TERMINATION.
5.1 Term. The term of Your subscription is described in Your Solution Account. Unless earlier terminated, this Agreement will remain in effect for so long as You are subscribed to the Solution. It is Your responsibility to purchase a renewal subscription from Your Milestone Partner before the end of Your current subscription term. You may, at any time during the subscription term, terminate Your subscription, and Your access and use of the Solution will be terminated from the effective date of termination designated by You. If You terminate Your subscription, Your subscription is terminated without any right for You to claim damages, refunds, or any compensation. For avoidance of doubt, notice must be received by Milestone (not Your Milestone Partner) to be an effective termination notice.
5.2 Termination. If either Party breaches a material term of this Agreement, the subscription will be terminable for cause. In such an event, the non-breaching Party will give written notice of the breach to the other Party, and if the breach can be reasonably cured, then the breaching Party will have the opportunity to do so. If the breach is not substantially cured within thirty (30) days from receipt of the written notice, the non-breaching Party may notify the breaching Party in writing of the immediate termination of all applicable subscriptions. If Milestone terminates Your subscription in accordance with this Section 5.2, Your subscription is terminated without any right for You to claim damages, refunds, or any compensation.
5.3 Effect. If Your subscription has not been renewed before the end of Your current subscription term, You are solely responsible for Your Content and for all related expenses. You are solely responsible for retrieval of Your Content prior to termination of the subscription, and Milestone will be under no obligation to store, maintain, or provide any of Your Content after termination; Milestone may block Your access to the Solution and delete Your Content. If You choose to export Your Content from the cloud environment, You are obligated to reimburse Milestone for fees charged by the cloud service provider hosting Your Content. Before the end of Your subscription, You may provide Your instructions regarding Your Content via email email@example.com. Upon termination, all access and licensed rights under this Agreement (including without limitation, the License), will automatically terminate and revert to Milestone or the applicable licensor, and You will promptly: (a) return or destroy all copies of Milestone Confidential Information; (b) cease all use of the Solution and Gateways (unless the Gateway was purchased by You); and (c) pay any outstanding fees owed to Your Milestone Partner or Milestone and all remaining fees applicable to the remaining term of the subscription. Termination will not relieve You of the obligation to pay fees payable for the period prior to the effective date of termination.
5.4 Survival. All terms and provisions herein, which by their nature should survive expiration or termination of this Agreement, shall so survive. Without limiting the foregoing, Sections 1.1(d) (Ownership), 1.2(c) (Feedback), 1.4 (Unauthorized Use), 5 (Access Information and Other Users), 1.7 (Your Responsibilities), 1.10 (Solution Integrity), 2.0 (Confidentiality), 3.0 (Payment), 4.0 (Disclaimers; Limitations of Liability; Indemnification), 5.3 (Effect), this Section 5.4 (Survival) and 7.0 (General Provisions), shall survive any expiration or termination of this Agreement.
6.0 MILESTONE RESPONSIBILITIES.
6.1 Milestone represents and warrants that it has the authority to enter into this Agreement and any purchased services described in Your Solution account that is provided by Milestone, will be performed in a professional and workmanlike manner.
6.2 Protection of Your Content. Subject to Section 4.1(a) hereof, Milestone will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content. Those safeguards will include efforts to help prevent access, use, modification or disclosure of Your Content by any third-party, and by Milestone personnel, except: (a) to provide the Solution and prevent or address service or technical problems; (b) as compelled by law in accordance with Section 1.2 or Section 2.4 hereof; or (c) as You expressly permit in writing (email is sufficient). Milestone will access and view Your Content only for the purpose for the performance of its obligations under this Agreement and the provision of the products, service or support permitted by this Agreement and the DPA. As part of the functionalities and features of the Solution, You are required to configure the personal information settings in a manner that is compliant with Your applicable law and regulations. You agree and acknowledge that Milestone will not be liable for any damage, loss, claim, whatsoever which to arise as a result of any action taken by Milestone in reliance on such settings.
6.3 Personnel. Milestone will remain responsible for the acts and omissions of its personnel and subcontractors (but not Your Milestone Partner), and their compliance with Milestone’s obligations described in this Agreement. You will remain fully responsible and liable for the acts and omission of Your employees, personnel and users, and their compliance with Your obligations described in this Agreement.
6.4 No-Charge Offerings. Milestone may offer certain functionalities, analytics, products, services, or Solution features or functionalities to You at no charge, including free accounts, trial use, and access to Beta Versions (defined below) (collectively, “No-Charge Offerings”). Your use of No-Charge Offerings is subject to the terms of this Agreement and any additional terms that Milestone may specify at the time they are made available, and are only permitted for the period designated by Milestone. Your restrictions and obligations continue to apply to No-Charge Offerings. Milestone may terminate Your right to use No-Charge Offerings at any time in Milestone’ sole discretion, without liability to You. You understand and agree that any Milestone pre-release and beta products, features, analytics, or functionalities Milestone makes available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally-available products. Milestone makes no promises that any Beta Versions will ever be made generally-available. In some circumstances, there may be a fee to allow You access Beta Versions. All information regarding the characteristics, features or performance of No-Charge Offerings constitute Milestone’s Confidential Information. For avoidance of doubt, the No-Charge Offerings are not part of the Solution and the No-Charge Offerings are provided AS-IS, the SLA does not apply, Milestone expressly disclaims all and any obligations, warranties, and liabilities with respect to No-Charge Offerings and Milestone will not provide any indemnification related thereto.
7.0 GENERAL PROVISIONS.
7.1 No Trademarks or Marketing. Neither Party is granted any right in the other Party’s trademarks without the other Party’s prior written consent. With Your written approval (email sufficient), Milestone may identify You as a customer on its website and marketing material.
7.2 Force Majeure. Other than for Your payment obligations, if a Party fails to perform its obligations under this Agreement due to a cause beyond the reasonable control of that Party, then that obligation will be excused for the duration of that cause. Such delay or failure to meet obligations will not give rise to any claim against that Party even if it could otherwise be deemed a breach of this Agreement.
7.3 Governing Law and Dispute Resolution. This Agreement shall be subject to the governing laws set forth in the table below, as set forth therein, without reference to any conflict of laws rules. Any dispute arising out of or in connection with this Agreement shall be resolved as set forth in the table below.
|Your primary location or the country of Your registration||The governing law will be||Any dispute arising out of or in connection with this Agreement will be|
|a country in North or South America||The State of New York, USA.||subject to the jurisdiction of the courts of the State of New York, USA.|
|a country in the EU/EEA, UK, and Switzerland, a country in Asia or Australia/Oceania, any country not covered above||The laws of Denmark.||subject to the jurisdiction of the City Court of Copenhagen.|
Any claim or cause of action arising out this Agreement or Your use of the Solution must be filed within one (1) year after such claim or cause of action arises, or be forever barred. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act shall not apply to this Agreement.
7.4 Assignment. You will not assign, delegate, or transfer, in whole or in part, this Agreement or any subscription, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without receiving advance written approval from a duly authorized representative of Milestone. Milestone may at any time assign, subcontract, delegate, or transfer, in whole or in part, this Agreement or its obligations under this Agreement, including, but not limited to, Arcus Holding A/S and Arcules, Inc., or its affiliates (and We will get Your approval before delegating obligations if We are obligated to do so by a data protection or privacy law, such as GDPR). This Agreement will be binding on, and inure to the benefit of, the Parties and their respective and permitted successors and assigns.
7.5 Injunctive Relief; Prevailing Party. A Party prevailing in any litigation related to this Agreement or the subject matter hereof will be entitled, in addition to such other relief as may be granted, to an award of reasonable attorneys’ fees.
7.6 Miscellaneous. This Agreement, the DPA and the SLA, both incorporated herein by this reference, constitute the entire agreement relating to its subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations warranties, agreements or other communications and prevails over any conflicting or additional terms of any quote, order or other communication between the Parties relating to its subject matter. If any provision of this Agreement is found by a court to be invalid, the Parties agree that the court should try to give effect to the Parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. No waiver of any provision of this Agreement will be deemed a further waiver or continuing waiver of that provision or any other provision, and a Party’s failure to assert any right or provision under this Agreement will not constitute a waiver of that right or provision. Nothing in this Agreement will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between the Parties and any user or other person or entity, nor do these terms extend rights to any third-party. In the event there is a conflict between translations of this Agreement, the English version shall prevail.
7.7 Notices. Any notice under this Agreement must be given in writing, including operational communication regarding Your use of the Solution, and any notice required by this Agreement or law. For this purpose, Milestone may provide notice to You through the provided email address of the primary user of Your Solution account, cf., Section 1.6 hereof, or through Your Solution account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including the requirement on written form of communication. You will provide notice to Milestone through the following email firstname.lastname@example.org. Any such electronic notice to You or Milestone will be deemed given upon the first business day after it has been sent by a respective Party. In addition to electronic notice, You may also provide notice by post, i.e., delivery by courier service or first-class mail, to Milestone Systems A/S, Banemarksvej 50, DK-2605 Brøndby, Denmark, Attn: Legal Department. Your notices to Us sent by post will be deemed given upon receipt. Notwithstanding the foregoing, Milestone may amend, update, modify or otherwise change this Agreement pursuant to paragraph “E” at the beginning of this Agreement.
Last Updated: January 3, 2023