Terms of Service - Intenseye

These Terms and Conditions (“Terms”) are entered into by and between Intenseye, Inc. a Delaware corporation (“we” or “Intenseye”) and Customer (“you” or Customer”) identified in the Service Order Form that references these Terms, effective as of the date of Customer’s execution (“Effective Date”). Intenseye and Customer shall individually be referred to as a “Party” and collectively as the “Parties.” These Terms will govern the use and provision of any services purchased by Customer as described in any Service Order Form. Any terms not defined herein have the meaning given to them in the applicable Service Order Form.

In consideration of the mutual representations, warranties, and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

Definitions. The following terms shall be capitalized throughout this Agreement and shall be defined as follows:
1. Authorized Users. The term “Authorized Users” refers to the individuals authorized by the Customer to access and use the Subscription Services.
2. Customer.The term “Customer” refers to the Customer identified in the Service Order Form.
3. Customer Data. The term “Customer Data” refers to any data or images submitted, uploaded, imported, integrated, or otherwise communicated by Customer to Intenseye.
4. Service Data. The term “Service Data” means any statistical and/or other benchmark data gathered by Intenseye from Customer’s use of the Subscription Services, including image-related data, for purposes of training Intenseye’s algorithms.
5. Service Order Form. The term “Service Order Form” refers to the document that is mutually agreed to in writing by the Parties that references these Terms and describes the services to be made available and the fees to be paid.
6. Subscription Services. The term “Subscription Services” refers to the cloud-based subscription services purchased by Customer pursuant to the Service Order Form.
7. Updates. The term Updates means any and all bug fixes, patches, and maintenance releases to the Subscription Services.
Subscription Services. Pursuant to this Agreement, Intenseye shall provide to Customer the Subscription Services on the terms and conditions as specified within the Services Order Form. Intenseye may provide Updates to the Subscription Services at any time.
Authorized Users. All Authorized Users shall be subject to the terms and conditions of this Agreement. Each Customer shall be responsible for maintaining the confidentiality and security of account login credentials.
End User License Agreement. Intenseye hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable, worldwide license to access and utilize the Subscription Services pursuant to the terms of the Services Order Form.
Reservation of Rights. Intenseye and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Subscription Services and Service Data (collectively “Intenseye Intellectual Property”), including any improvements, modifications, and enhancements. Intenseye expends significant resources gathering, assembling, and compiling the Service Data and such Service Data constitutes an original compilation protected by applicable copyright laws. Except for the rights expressly granted in this Agreement, Customer shall acquire no other rights, express or implied, in or to the Intenseye Intellectual Property, and all rights not expressly provided to Customer hereunder are reserved by Intenseye and its licensors.
Customer Data. Customer shall own and retain all right, title and interest in and to the Customer Data.
Promotional License. Customer grants to Intenseye the unrestricted right and license to use Customer’s name and logo to market and promote the Subscription Services. Intenseye is granted no other rights to the Customer’s logo and acknowledges that it shall not gain any proprietary interest in the Customer’s logo. Intenseye is under no obligation to make use of or to provide compensation for any of the rights or permissions granted. Intenseye shall be the exclusive owner of all right, title, and interest, including copyright, in Intenseye’s marketing and promotional materials. Customer may terminate any of the above uses at any time with thirty (30) days written notice to founders@intenseye.com
Fees and Term.
1. Fees. Initial Subscription Fees shall be payable to Intenseye pursuant to the terms of the Services Order Form. Fees for any applicable renewal term(s) of the Subscription Services shall be due within thirty (30) days of the date of any invoice.
  1. Payment: Customer shall execute an ACH authorization and expressly authorizes Intenseye to charge the applicable Subscription Services fees through the credit card/financial institution designated by Customer. If the Customer’s pre-authorized payment method fails, Intenseye will provide notification of such payment failure. If the Customer fails to rectify the payment failure within ten (10) days of written notice, Intenseye may immediately deactivate the Customer’s account without notice.
  2. Late Payments. Intenseye may suspend or terminate services for payments that are more than thirty (30) days past due. Past due payments will accrue interest at the greater of 1.5% monthly or the highest interest rate allowable under applicable law.
  3. Taxes. The customer is responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed on the purchase or use of the Subscription Services. To the extent Intenseye is required to collect such taxes, the applicable tax will be added to Customer’s billing account.
2. Term. The term of the Subscription Services will commence on the date set forth in the Service Order Form and shall continue for the subscription term identified therein, and any renewal thereof, unless earlier terminated pursuant to the terms of this Agreement.
3. No Refunds. The customer shall be responsible for all fees for the entire, applicable subscription term. Unless otherwise set forth in the Services Order Form, fees will not be prorated upon cancellation and/or termination and all fees paid through the date of termination are nonrefundable.
Subscription Services Automatic Renewal. Except as otherwise specified in the Services Order Form, Subscription Services will automatically renew for additional periods equal to the expiring subscription term, unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the applicable Subscription Services term.
1. Renewal Charges. The fees for the automatic renewal term will be the same as that during the immediately prior term unless Intenseye provides prior written notice of a fee increase at least sixty (60) days before the end of the applicable Subscription Term.
2. Cancellation. To cancel the subscription renewal, Customer must email Intenseye at least thirty (30) days at founders@intenseye.comprior to the applicable renewal date.
Use Restrictions. Customer will not, directly or indirectly, alter or modify the Subscription Services, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Subscription Services. Customer shall not make the Subscription Services available for the benefit of any third party, or sell, resell, license, sublicense, distribute, rent or lease the Subscription Services to any third party for any purpose, commercial or otherwise.
Confidentiality & Non-Disclosure. In providing the Subscription Services under this Agreement, Intenseye may have access to Customer’s confidential and proprietary information, including for the avoidance of doubt, Customer Data (“Confidential Information”). To the extent such Confidential Information is disclosed to Intenseye:
1. Non-Disclosure Obligation. Intenseye shall not disclose any Confidential Information to any third party for any reason without Customer’s prior written consent, other than its employees or agents who have a need to know about such information in order to provide the Subscription Services.
2. Required Disclosure. In the event Intenseye is requested or required by legal process to disclose any of the Confidential Information, Intenseye shall, if legally permitted, give Customer prompt notice so that Customer may seek a protective order or other appropriate relief prior to any such disclosure. In the event that such protective order is not obtained, Intenseye shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose, and shall work with the owner of such Confidential Information to minimize the extent and effect.
3. Injunctive Relief. Both parties understand and agree that monetary damages will not be a sufficient remedy for any breach of Intenseye’s confidentiality obligations under this Section and that Customer shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach by Customer but will be in addition to all other remedies available to Customer at law or in equity.
Customer Support. Intenseye’s Customer support personnel shall respond to Customer’s reasonable telephone and email inquiries regarding issues relating to the Subscription Services from 7:00 a.m. to 8:00 p.m., Eastern Standard Time, Monday through Friday, except for standard legal U.S. holidays.
Security and Privacy. Intenseye will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data in accordance with industry standard security requirements, Each Party shall be responsible for ensuring compliance with any and all privacy, notice and consent rules or regulations and/or data collection laws or regulations applicable to the provision or use of the Subscription Services. To the extent that the use of the Subscription Services involves any transfers of personally identifiable information (i) subject to data transfer restrictions or requirements under Directive 95/46/EC or any successor legislation; (ii) to countries, jurisdictions or recipients outside the EEA or Switzerland not recognized by the European Commission as ensuring an adequate level of protection pursuant to Directive 95/46/EC or any successor legislation; and (iii) not otherwise subject to an approved transfer mechanism that provides an adequate level of protection pursuant to Directive 95/46/EC or any successor legislation, such transfers between Customer and Intenseye. are made subject to the terms of the EU Standard Contractual Clauses, as entered into between Customer and Intenseye. The Parties agree that incorporation of the Clauses into this Agreement shall act as a legally-binding execution of the Clauses.
Availability. Intenseye will provide the Subscription Services in accordance with the Service Level Agreement set forth as Exhibit A hereto.
ASSUMPTION OF THE RISK. INTENSEYE SHALL NOT BE HELD LIABILE FOR ANY LOSS OR DAMAGE ARISING OR RESULTING ANY ACTS OR OMISSIONS BY CUSTOMER, INCLUDING ACTS OR OMISSIONS MADE BY CUSTOMER IN RELIANCE UPON THE ANALYTICS GENERATED FROM THE CUSTOMER DATA COLLECTED, PROCESSED AND REPORTED IN CONNECTION WITH THE SUBSCRIPTION SERVICES.
GENERAL RELEASE. With regard to any dispute between Customer and any of its employees, contractors, visitors, invitees, agents, customers, representatives or other third party (whether an individual or public or private entity) arising from or relating to Customer’s use of the Subscription Services, the analytics generated in connection with the Subscription Services, and/or Customer’s reliance on such analytics, Customer hereby releases Intenseye and its subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns, from all claims, demands, causes of action, liabilities, legal fees and costs, and damages (actual or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. IF A CALIFORNIA RESIDENT, CUSTOMER WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Representations and Warranties. Each Party represents and warrants that:
1. Good Standing. Each Party is a business duly incorporated and in good standing under the laws of its state of incorporation.
2. Corporate Authority. Each Party has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement.
3. Compliance with Applicable Laws. Each Party shall comply with all international, federal or state laws or regulations applicable to the performance of its obligations under this Agreement.
4. Export Compliance. Subscription Services may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access or use any Subscription Services in a U.S. embargoed country or in violation of any other applicable export laws or regulations.
Termination.
1. Termination for Convenience. If a 30-Day Pilot Term is elected, Customer shall have, in its sole discretion, the opportunity to terminate this agreement if notice is given to Intenseye within thirty (30) days of the Effective Date.
2. Automatic Termination. This Agreement shall automatically terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either Party’s debts, (ii) upon either Party making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business.
3. Breach. Either Party may terminate this Agreement if the other Party breaches any material provisions of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
4. Survival. The following Sections survive termination of this Agreement: Individual Binding Arbitration, Promotional License, Confidentiality & Non-Disclosure, Disclaimer of Warranties, Indemnity, Limitation of Liability, General Release, Assumption of the Risk, and Choice of Law.
DISCLAIMER OF WARRANTIES: INTENSEYE DOES NOT MAKE ANY GUARANTEE OF IMPACT, OUTCOME OR RESULTS. UNLESS OTHERWISE STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO CUSTOMER THROUGH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. INTENSEYE DOES NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION SERVICES (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET CUSTOMER’S REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE. INTENSEYE DOES NOT WARRANT THAT CUSTOMER DATA WILL BE FREE FROM UNAUTHORIZED ACCESS, CORRUPTION OR LOSS. EXCEPT WHERE PROHIBITED BY LAW, INTENSEYE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY AND WILL NOT BE LIABLE FOR CUSTOMER’S USE OF OR RELIANCE ON THE SUBSCRIPTION SERVICES.
DISCLAIMER OF THIRD PARTY CONDUCT: INTENSEYE DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, INTENSEYE MAKES NO WARRANTIES REGARDING THIRD PARTY SERVICES, GOODS, RESOURCES, AND INFORMATION INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR CUSTOMER’S USE OF SUCH THIRD-PARTY SERVICES, GOODS, RESOURCES OR INFORMATION.
LIMITATION OF LIABILITY: EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN (“EXCEPTIONS”), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, SECURITY BREACH, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SUBSCRIPTION SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO THE EXCEPTIONS, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY, INCLUDING THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE TO INTENSEYE DURING THE SUBSCRIPTION TERM GIVING RISE TO THE CLAIM.
INDEMNITY.
1. By Intenseye. To the maximum extent permitted by law, Intenseye agrees to indemnify, defend and hold harmless Customer, and its Customer subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns (the “Customer Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Customer Indemnified Parties arising out of or relating to a claim that the Subscription Services infringe another person’s patent, copyright, trade secret or trademark. Intenseye will not have liability for, and Customer will defend Intenseye against, and pay any damages awarded against Intenseye and direct expenses, including reasonable attorneys’ fees to the extent the claimed infringement would not have occurred but for (i) the use of the Subscription Services other than in accordance with Intenseye’s published instructions, (ii) any unauthorized modification or alteration of the Subscription Services by Customer, (iii) any combination or use of the Subscription Services with any other product or system or technologies not supplied by Intenseye or otherwise anticipated by this Agreement, (iv) Intenseye’s compliance with Customer’s design or specifications, and/or (v) any refusal to accept or use suitable modified or replacement of the Subscription Services provided by Intenseye to avoid infringement. In the event of claimed infringement, Intenseye shall, at its option: (A) obtain a right for Customer to continue using the Subscription Services for no additional fee; (B) modify the Subscription Services (as applicable) to make it non-infringing; (C) replace the Subscription Services (as applicable) with a non-infringing equivalent with the same functionality, features, and performance; or (D) terminate this Agreement and refund on a pro-rata basis the unused portion of the Subscription Fees.
2. By Customer. To the maximum extent permitted by law, Customer agrees to indemnify, defend and hold harmless Intenseye, and its Intenseye subsidiaries, affiliates, officers, directors, shareholders, employees, representatives, agents, volunteers, attorneys, managers, licensors, business partners and each of their respective successors and assigns (the “Intenseye Indemnified Parties”) from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any claim, demand or action brought or asserted against any of the Intenseye Indemnified Parties arising out of or relating to (i) Customer’s use of the Subscription Services in breach of this Agreement, (ii) Customer’s violation of any third party right, including without limitation any intellectual property right, publicity, property or privacy right, (iii) a breach of Client’s representation or warranties under this Agreement, (iii) Client’s failure to obtain the proper consents and/or authorizations to capture, process and/or transmit Customer Data to Intenseye, (iv) Client’s violation of applicable state and federal rules, regulations and statutes, (v) bodily injury, death or property damage of Customer’s employees, contractors, visitors, invitees, agents, customers, representatives or other third party.
3. Notice. As a condition to an indemnifying Party’s (each, an “Indemnitor”) obligations under this Section, a Party entitled to indemnification (each, an “Indemnitee”) will: (i) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification; (ii) grant the Indemnitor sole control of the defense and settlement of the claim; (iii) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the claim; (iv) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim that involves a remedy other than payment without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.
Miscellaneous
1. Force Majeure. Intenseye will not be liable or responsible for any delays in providing the Subscription Services, or for failing to provide the Subscription Services, as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, terrorism, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, denial of service attacks, war or acts of God.
2. No Agency. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
3. Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
4. Modifications. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
5. Choice of Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to or application of New York’s conflict of law principles. The parties consent to the jurisdiction of the State of New York, and venue in New York County, with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof.
6. Assignment. Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld. However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.
7. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
8. No Waiver. No failure or delay by a party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
9. Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
10. Notices. All notices required or permitted to be given under this Agreement will be in writing and delivered to Intenseye at 410 E. Santa Clara St., San Jose, California 95113 and to Customer at the address provided in the Service Order Form.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement.
12. Execution. Either Party may execute this Agreement with either a manual or digital signature. “Digital signature” means an electronic identifier that is intended by the Party using it to have the same force and effect as the use of a manual signature. A signed copy of this Agreement delivered via facsimile or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement.
Entire Agreement. This Agreement comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, between the Parties regarding the subject matter contained herein.

Exhibit A

SERVICE LEVEL AGREEMENT

This document sets forth Intenseye’s service level targets associated with the Intenseye’s Software as a Service (“Service”) as follows:

Definitions.Except as otherwise modified or defined herein, all capitalized terms in this Service Level Agreement have the same meanings as set forth in the Terms and Conditions. For purposes of this Service Level Agreement, the following definitions will apply.
1. “Downtime” means the time that users of the Services are not able to (a) access the Services, (b) perform ordinary functions to use or receive Services in accordance with specifications, or (c) utilize the Services for normal business operations due to failure, malfunction or delay. Downtime does not include any unavailability of the System Services due to Planned Maintenance, Emergency Maintenance, or Unavailability Exceptions.
2. “Emergency Maintenance” means any time outside of the Scheduled Maintenance Window that Intenseye is required to apply urgent patches or fixes, or undertake other urgent maintenance activities.
3. “Force Majeure Event” means any event beyond a party’s reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, denial of service attack, fire, flood, civil disobedience, terrorism, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, denial of service attacks, war acts of God, or a public health emergency, government-regulated travel bans.
4. “Planned Maintenance” means the window during which weekly scheduled maintenance of the Service may be performed.
System Service Availability
1. Subject to the terms of this SLA, Intenseye will provide System Service Availability commitment for a given calendar month at 99%. The following definitions will apply with respect to the calculation of System Service Availability:
  1. “Actual Availability” means Total Scheduled Availability minus Downtime.
  2. “System Service Availability” will be calculated on a monthly basis using the following formula:
    [Actual Availability divided by Total Scheduled Availability multiplied by 100%]
  3. “Total Scheduled Availability” means seven (7) days per week, twenty-four (24) hours per day, excluding Planned Maintenance and Emergency Maintenance.
2. Planned Maintenance consists of four (4) hours for weekly maintenance, four (4) hours for monthly maintenance, and four (4) hours for quarterly maintenance. Weekly maintenance begins at 12 am (Eastern) on Fridays; monthly maintenance begins at 2:00 am (Eastern) on the last Saturday of each month, and quarterly maintenance begins at 6:00 am (Eastern) on the last Saturday of each quarter. All times are subject to change upon reasonable notice. If Emergency Maintenance is required, Intenseye will contact the Customer and provide the expected start time and the planned duration of the Emergency Maintenance.
3. The measurement point for System Service Availability is the availability of the Intenseye Production Service at the Intenseye production data center’s Internet connection points. Customer may request an availability report not more than once per month via the Customer Support.
Camera Connection Service Availability
1. Intenseye’s Camera Connection Service Availability commitment for a given calendar month is 99%. The availability is calculated as a percentage of the total time during the camera connection is available to outside networks via defined ports to the whitelisted IP addresses with sufficient bandwidth available during each calendar month, excluding Planned Maintenance, Emergency Maintenance, and the Unavailability Exceptions. For purposes of calculating the Camera Connection Service Availability, only downtime exceeding 10 minutes will apply.
2. Customer ResponsibilitiesCustomer must: (a) provide a contact in their IT department which will be available for setting up the configuration between Intenseye Service and Customer’s internal camera network, (b) set up port forwarding entries, whitelist the Intenseye external IP addresses in accordance with the Service product documentation provided to the Customer, (c) set up camera configuration in accordance with the Service product use cases and minimum bandwidth requirements document provided to the Customer, (d) keep the camera firmware up to date, and (e) maintain the minimum required bandwidth available, keep camera network status healthy and accessible to Intenseye Service.
Unavailability Exceptions.The System Services and Camera Connection Services will not be considered unavailable for any outage caused by (i) acts or omissions of Customer, its employees, or agents, (iii) Customer or other third party equipment, software, hardware or network infrastructure, (iv) factors outside of Intenseye’s reasonable control, including any Force Majeure events, denial-of-service attacks, Customer’s internet access, or issues with the underlying server beyond the demarcation point of the System Services.
Intenseye Update Process and Notifications.Periodically, Intenseye introduces new features and functionalities in a new version of the Intenseye Service with enhanced functionality across all, or substantially all, Intenseye modules (“Update”). If there is downtime to be expected with the Update, the update will be performed during the weekend following any Planned Maintenance. Customers shall provide a named Update Contact, to schedule and manage Customer through its Update process. Intenseye provides information for managing the Update process.
Service Response.Intenseye’s Service Response commitment is (i) not less than 50% of (online) transactions in two (2) seconds or less and (ii) not more than 10% in ten (10) seconds or more. Service Response is the processing time of the Intenseye Production Service in the Intenseye production data center to complete transactions submitted from a web browser. This Service Response commitment excludes requests submitted via Intenseye API. The time required to complete the request will be measured from the point in time when the request has been fully received by the encryption endpoint in the Intenseye Production data center, until such time as the response begins to be returned for transmission to Customer. Customer may request a response time report not more than once per month.
Remedies
1. This SLA sets forth Customer’s sole and exclusive remedy for Intenseye’s failure to meet the Service Level Availability set forth herein. All commitments are subject to the limitations and exclusions set forth herein.
2. Service credits will be applied against Customer’s subsequent payment obligations according to the following schedule:Availability LevelService Credit< 99.0% – >= 95.0%10.0% of the Monthly Subscription Fee applicable to the calendar month in which an applicable service disruption occurred< 95.0% – >= 90.0%20.0% of the Monthly Subscription Fee applicable to the calendar month in which an applicable service disruption occurred< 90%50.0% of the Monthly Subscription Fee applicable to the calendar month in which an applicable service disruption occurred
3. Service credits are exclusive of applicable taxes charged to Customer or collected by Intenseye. To receive service credits, Customer must submit a written request to sercan@intenseye.com within 30 days after the end of the month in which the Services failed to meet the Services Availability commitments set forth herein, with sufficient evidence (including a description of the incident and duration of the incident) or Customer’s right to receive service credits with respect to such unavailability will be waived. If Customer is not current in its payment obligations when an outage occurs, remedies may accrue, but service credits will not be issued until Customer becomes current in its payment obligations.
Disaster RecoveryIntenseye will maintain a disaster recovery plan for the Intenseye Production Service. Intenseye commits to a recovery time objective of twelve (12) hours – measured from the time that the Intenseye Production Service becomes unavailable until it is available again. Intenseye commits to a recovery point objective of three (3) hours – measured from the time that the first transaction is lost until the Intenseye Production Service became unavailable.
Technical Assistance; Case Submittal and ReportingIntenseye will provide Customer with 24x7x365 technical assistance in accordance with this SLA.Customer’s Named Support Contacts may submit cases to their dedicated support engineer. Named Support contacts must be trained on the Intenseye product(s) for which they initiate support requests. Intenseye will respond to each case in accordance with this SLA and will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution itself. A resolution may consist of a fix, workaround, delivery of information, or other commercially reasonable solution to the issue
Severity Level DeterminationCustomer shall reasonably self-diagnose each support issue in accordance with the table set forth below and report to Intenseye an appropriate Severity Level designation. Intenseye shall validate Customer’s Severity Level designation, or notify Customer of a proposed change in the Severity Level designation to a higher or lower level with justification for the proposal. In the event of a conflict regarding the appropriate Severity Level designation, each party shall promptly escalate such conflict to its management team for resolution through consultation between the parties’ management, during which time the parties shall continue to handle the support issue in accordance with the Intenseye Severity Level designation. In the rare case a conflict requires a management discussion, both parties shall be available within one hour of the escalation.Severity DefinitionLevel 1 – Critical: There is no access to the Services; system-critical defects or errors. No reasonable workaround is available.Level 2 – High: Performance of the Services is noticeably impaired but is still accessible and functional to Customer. Impacts some, but not all users. Short-term workaround is available, but not scalable.Level 3 – Standard: Routine inquiry regarding the technical issues; information on application capabilities, a bug impacting a limited number of users. A reasonable workaround is available.