The following Terms and Conditions are application to Ectron’s SmartEYE™ service offerings. For terms and conditions applicable to Ectron products, please refer to Ectron’s Warranty Policy.
1. Obligations of Ectron. To implement SmartEYE™ at Customer’s facility in accordance with the applicable SOW.
2. Obligations of Customer.
(a) To provide the information, feedback, resources and access required by Ectron to implement SmartEYE™ at Customer’s facility in accordance with the SOW;
(b) To provide the information, feedback, resources and access required by Ectron to create customized dashboards and provide analytics to Customer in accordance with the SOW; and
(c) To pay any fees payable by Customer to Ectron as set forth in the SOW.
3. Termination. Either party may terminate this Agreement, in whole or in part, upon written notice to the other party upon breach of this Agreement by the other party, if such breach is not cured within thirty (30) days of receipt of written notice of said breach. All SOWs shall automatically renew at the expiration of their Initial Term for successive one (1) year Renewal Terms unless terminated by the other party no less than sixty (60) days prior to the expiration of the then-applicable Initial Term or Renewal Term. Customer may not terminate an active SOW without cause. Either party may terminate this Agreement upon written notice to the other party, without cause, if there are no active SOWs in place.
4. Confidential Information. “Confidential Information” shall mean any non-public information relating to Ectron or Customer (including, without limitation, pricing, technology, intellectual property, internal business operations, policies or practices). Each party agrees to keep any such information confidential and to not disclose or permit it to be disclosed, directly or indirectly, to any person or entity, except to employees, contractors, agents, representatives and strategic partners who need-to-know such information in order for a party to perform its obligations hereunder; provided such employee, contractor, agent, representative or strategic party has a written obligation to also maintain the confidentiality of such information. Each party shall exercise the same degree of care to prevent disclosure of any Confidential Information to others as it takes to preserve and safeguard its own proprietary information, but in any event, no less than a reasonable degree of care. “Confidential Information” shall not include information that: (a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement; (b) at the time of disclosure is, or thereafter becomes, available to the receiving party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information by a legal, fiduciary or contractual obligation; (c) was known by or in the possession of the receiving party, as established by documentary evidence, prior to being disclosed by the other party pursuant to this Agreement; or (d) was or is independently developed by the receiving party, as established by documentary evidence, without reference to or use of, in whole or in part, any of the other party’s Confidential Information.
5. Intellectual Property. All information, intellectual property, technology, documentation or other materials provided by or on behalf of Ectron (including, without limitation, all intellectual property contained in and on SmartEYE™ and related documentation), all intellectual property developed by Ectron hereunder, as well as any modifications, enhancements or derivative works of any of the foregoing, is and shall remain the sole and exclusive property of Ectron. All information, intellectual property, technology, documentation or other materials provided by or on behalf of Customer (including, without limitation, all intellectual property contained therein) is and shall remain the sole and exclusive property of Customer. Notwithstanding anything else contained herein, any data relating to Customer’s business collected by SmartEYE™ shall remain the sole and exclusive property of Customer and shall be treated as Customer’s “Confidential Information;” provided, Ectron shall be entitled to use the anonymized, aggregated data of Customer along with data from other customers to improve the performance of SmartEYE™, to create industry-level benchmarks and for other internal business purposes so long as any such use by Ectron does not allow a third party to attribute or associate data with Customer.
6. Warranty. Ectron warrants that Services will be provided in a professional manner consistent with industry standards. EXCEPT AS SET FORTH IN THIS SECTION 6, ECTRON PROVIDES NO OTHER WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON–INFRINGEMENT.
7. Limitation of Liability. Ectron’s aggregate liability for all claims arising from this Agreement, shall not exceed the amount of Fees paid by Customer under the applicable SOW during the six (6) month period preceding the liability. IN NO EVENT SHALL ECTRON, ITS LICENSORS, SUPPLIERS OR AFFILIATES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ECTRON’S PRODUCTS OR SERVICES, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF ECTRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
8. Additional Provisions.
a. Entire Agreement. This Agreement including any Attachments and related SOWs shall constitute the entire agreement between Ectron and Customer with respect to the purchase by Customer of the goods and/or services provided by Ectron.
b. Contract Modifications. This Agreement be amended only by written amendment duly executed by an authorized representative of both Customer and Ectron.
c. Relationship of Parties. This Agreement shall not be construed as establishing a joint venture, partnership or any principal-agent relationship for any purpose between Customer and Ectron. The relationship between Ectron and Customer is that of independent contractors only. Neither party will have any power or authority to bind the other in any transaction with a third-party. Unless otherwise expressly agreed by the parties, the products and services rendered hereunder shall be on a nonexclusive basis and Ectron shall be free to accept other engagements at all times.
d. No Third Party Benefits. This Agreement shall not be considered by Customer to create any benefits on behalf of any third party.
e. Force Majeure. If Ectron is unable to perform its obligations because of Force Majeure (as hereinafter defined), the time for such performance by Ectron will be equitably adjusted by allowing additional time for performance equal to any periods of Force Majeure. “Force Majeure” shall mean any delays caused by acts of God, riot, war, terrorism, inclement weather, labor strikes, material or component shortages and other causes beyond the reasonable control of Ectron.
f. Severability. If any provision of this Agreement is determined to be invalid or unenforceable, the remainder shall be enforceable to the maximum extent possible.
g. Notices. All notices, requests, claims, demands, and other communication under this Agreement may be delivered by any method chosen by the sender that positively establishes legally valid and admissible evidence of actual receipt by the named party at the following address: (a) in the case of Customer, (i) where services are delivered; (ii) if services are delivered at multiple locations, then at the Customer’s United States Headquarters as listed on its website; or (iii) if neither (i) nor (ii) apply, then at any location where services are delivered; and (b) in the case of Ectron, at its United States Headquarters as indicated on its website, and further provided, it is addressed to the attention of the Chief Executive Officer. The sender shall bear the burden of establishing delivery with respect to the method chosen.
h. Authority. Each party represents that the individual signing this Agreement has the requisite legal authority to bind the party on whose behalf he/she is signing.
i. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of state of California. The parties agree that courts of competent jurisdiction in San Diego County, CA shall have concurrent jurisdiction with the arbitration tribunals of the American Arbitration Association for purposes of entering temporary, preliminary and permanent injunctive relief with regard to any action arising out of any breach or alleged breach of this Agreement. The parties waive any claim that any of the foregoing courts is an inconvenient forum.
j. Arbitration. The parties agree that all controversies, claims, disputes and matters in question arising out of, or related to this Agreement, the performance under this Agreement, the breach of this Agreement or any other matter or claim whatsoever (including but not limited to tort claims) shall be decided by binding arbitration, by a single, neutral arbiter, before the American Arbitration Association, utilizing its Commercial Rules. Venue for any arbitration between the parties shall be San Diego County, CA.
Revised: June 30, 2023