End User License Agreement
THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF THE LICENSED APPLICATION (AS DEFINED BELOW).
IMPORTANT: READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE LICENSED APPLICATION. BRIVO SYSTEMS LLC (“BRIVO”) IS WILLING TO PROVIDE YOU, AS THE USER OF THE LICENSED APPLICATION (REFERENCED BELOW AS “YOU” OR “YOUR”), A LICENSE TO THE LICENSED APPLICATION ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND BRIVO. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR ACCESSING OR USING THE LICENSED APPLICATION, YOU AFFIRM THAT THIS AGREEMENT CONSTITUTES A WRITING, YOU HAVE READ THIS AGREEMENT, YOU UNDERSTAND THIS AGREEMENT, AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCESSING AND/OR USING THE LICENSED APPLICATION ON BEHALF OF AN END USER WHICH IS A CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP OR OTHER LEGAL ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT AND WARRANT TO BRIVO THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT AND ACCEPT THESE TERMS ON BEHALF OF THE END USER, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH END USER ENTITY. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “I DO NOT ACCEPT” OR “NO” BUTTON OR OTHERWISE INDICATE REFUSAL, AND DO NOT DOWNLOAD OR USE THE LICENSED APPLICATION.
This Agreement is solely concluded between You and Brivo, and not with Apple, Google or any other third party through whom You may have obtained the right to the Licensed Application. Further, Brivo, and not Apple or Google is solely responsible for the Licensed Application and all content therein.
You may not download or use the Licensed Application if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
“Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Customer Data, the Licensed Application, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for Customer Data) will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
“Customer Data” means all electronic data, records or information submitted by You to the Service.
“Force Majeure Event” means any circumstance or occurrence beyond the reasonable control of Brivo, including, without limitation, acts or omissions by a public authority, acts of God, strikes, blockades, acts of terrorism, riots, pandemics, epidemics, storms, earthquakes, explosions, fires, floods, Internet or telecommunications failures/outages/delays, third-party hosting facility failures, denial of service attacks, or other similar occurrences.
“Licensed Application” means Brivo’s proprietary software application, developed by or on behalf of Brivo and its third-party licensors, that accompanies this Agreement.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Service” means Brivo’s proprietary online, Web-based hosted software service, made available by Brivo and its licensors via https://www.brivo.com and/or other designated websites, mobile applications and associated offline components, as described by the User Guide.
“Subscriber” means the entity that has subscribed to the Service pursuant to a written agreement between such entity and an authorized Brivo Reseller (the “Subscription Agreement”), which has a valid and current right to access and use the Service, and which has granted You the right to access and use the Service as a User.
“User Guide” means any written online user guide for the Service published by Brivo and supplied to the Subscriber by Brivo or an authorized Brivo reseller, as updated from time to time in Brivo’s sole discretion.
“Users” means individuals who are authorized by the Subscriber to use the Service and who have been supplied user identifications and passwords by the Subscriber (or by an authorized Brivo reseller). Users may include but are not limited to employees, consultants, contractors, tenants and agents of the Subscriber.
“We,” “Us” or “Our” means Brivo.
Subject to the terms and conditions of this Agreement, Brivo grants You a limited, non-transferable, perpetual license to use the Licensed Application on a device that You or the Subscriber owns or controls solely for the purpose of accessing and using the Service on behalf of the Subscriber during the Subscriber’s term of subscription to the Service, as authorized by the Subscriber and as further provided in the applicable usage rules set forth in the Apple App Store Terms of Services [or other Third Party Platform Provider (as defined below) through which You obtained the Licensed Application, as applicable], which You acknowledge that You have reviewed and accepted. You agree that Your acquisition of the license to the Licensed Application is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Brivo with respect to future functionality or features. You acknowledge that: (i) this Agreement constitutes the entire agreement between You and Brivo regarding the provision by Brivo, and the access and use by You, of the Licensed Application; and (ii) Your use of the Service via the Licensed Application is subject to the terms and conditions of the Subscription Agreement and any further restrictions or limitations imposed on You by the Subscriber.
- Use of the Service
3.1 You will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data submitted by You to the Service using the Licensed Application and will ensure that all instructions given to Brivo in respect of the Customer Data will be in compliance with all applicable laws, including applicable data protection laws and regulations; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Licensed Application and the Service, and notify Brivo promptly following Your discovery of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Licensed Application and the Service, including without limitation all applicable data protection laws and regulations.
3.2 You may use the Licensed Application and the Service solely for the Subscriber’s internal business purposes as contemplated by this Agreement and may not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Licensed Application or the Service available to any third party, other than to Users as contemplated by this Agreement; (ii) record, transmit or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy rights; (iii) send or store Malicious Code; (iv) intentionally interfere with or disrupt the integrity or performance of the Licensed Application or the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Licensed Application or the Service or its related systems or networks.
- Proprietary Rights
4.1 The Licensed Application is licensed, not sold, to You, for use only under the terms of this Agreement. Subject to the limited rights expressly granted hereunder, Brivo reserves all rights, title and interest in and to the Licensed Application and the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. Save to the extent expressly permitted by applicable law notwithstanding this limitation, You will not: (i) modify, copy or create derivative works based on the Licensed Application; (ii) reverse engineer decompile, disassemble or attempt to derive the source code of the Licensed Application; or (iv) access the Licensed Application in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Licensed Application.
4.2 You acknowledge and agree that the Subscriber exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. You acknowledge and agree that Brivo and its third-party suppliers may access and use Customer Data to the extent necessary to provide the Service.
4.3 You acknowledge that, in the event of any third-party claim that the Licensed Application or any part thereof or Your use of the Licensed Application infringes a third party’s intellectual property rights, Brivo, not Apple [or any other applicable Third Party Platform Provider,] will solely be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
5.1 The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5.2 If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party will have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
- Warranties & Disclaimers
6.1 You represent and warrant to Brivo that: (i) on the date hereof You are, and at all times following the date hereof that You use the Licensed Application to access or use the Service You will be, an authorized User; and (ii) the collection and processing of Customer Data as contemplated by this Agreement complies in all respects with applicable data protection laws and regulations.
6.2 THE LICENSED APPLICATION IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRIVO DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. BRIVO DOES NOT WARRANT THAT THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS OR NEEDS, OR THAT OPERATION OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED, OR THAT THE LICENSED APPLICATION WILL BE ERROR-FREE, OR THAT ANY DEFECTS OR ERRORS IN THE LICENSED APPLICATION WILL BE CORRECTED. YOU FURTHER ACKNOWLEDGE THAT NEITHER BRIVO, APPLE NOR ANY OTHER THIRD PARTY PLATFORM PROVIDER HAS ANY OBLIGATION WHATSOEVER TO FURNISH ANY MAINTENANCE AND SUPPORT SERVICES WITH RESPECT TO THE LICENSED APPLICATION.
- Disclaimer of Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL BRIVO OR ITS DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, LICENSORS OR AGENTS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR EXEMPLARY OR SIMILAR DAMAGES, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE LICENSED APPLICATION, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOST DATA, PERSONAL INJURY AND COMPUTER FAILURE OR MALFUNCTION, EVEN IF BRIVO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. IN NO CASE WILL BRIVO’S OR ITS LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED $50.00. Without limiting the generality of the foregoing, You acknowledge that Brivo, not Apple [or any other applicable Third Party Platform Provider,] is responsible for addressing any claims relating to the Licensed Application and Your use of the Licensed Application, including without limitation: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You will defend, indemnify and hold Brivo and its owners, directors, managers, officers, employees and agents (each a “Brivo Indemnified Party”) harmless against any loss, liability, damage, cost or expense (including reasonable attorneys’ fees) suffered or incurred by any Brivo Indemnified Party in connection with claims, demands, suits, or proceedings made or brought against any Brivo Indemnified Party by a third party alleging (i) a breach by You of Your obligations under this Agreement or under applicable local, state, federal and foreign laws, including, without limitation, applicable data protection laws and regulations; or (ii) that Your use of the Licensed Application in breach of this Agreement infringes or breaches the intellectual property rights, of, or has otherwise harmed, a third party; or (iii) a breach by You of Section 5 (Confidentiality).
9.1 Brivo may terminate this Agreement for cause effective immediately (without any opportunity for cure) by delivering a written termination notice to You if: (i) You breach the terms of this Agreement or (ii) a third-party claim is brought against Us or Our licensors alleging intellectual property infringement. Upon termination of this Agreement, Your right to use the Licensed Application automatically terminates without further notice from Brivo, whereupon You will immediately cease all use of the Licensed Application.
The provisions of Sections 4 through 16 of this Agreement will survive any termination or expiration of this Agreement.
9.2 Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of breach, termination, non-renewal or a claim for indemnification hereunder). Notices to You shall be addressed to Your account email address or by delivery of a letter to Your account mailing address. Notices to Brivo shall be sent to: Brivo Systems, LLC, 7700 Old Georgetown Road, Suite 300, Bethesda, Maryland 20814, Attention: Legal Department.
- Third Party Platform Providers; Third Party Products
If You access or download the Licensed Application via an Apple, Inc. (“Apple”), Google, Inc. (“Google”), or any other third party app store or platform (each a “Third Party Platform Provider”), such Third Party Platform Providers shall be third-party beneficiaries to this Agreement. However, these Third Party Platform Providers are not party to this Agreement and have no obligation to provide maintenance and/or support of the Licensed Application or Service. Brivo, not such Third Party Platform Providers, is solely responsible for the Licensed Application and the Service. Your access to the Licensed Application and the Service using the Third Party Platform Providers’ app stores or platforms are subject to the usage terms set forth in the applicable Third Party Platform Provider’s terms of service.
Brivo, not Apple [or any other applicable Third Party Platform Provider], is responsible for addressing any claims You or a third party may have relating to the Licensed Application, or Your possession and/or use of such application, including, but not limited to (i) product liability claims, (ii) any claims that such application fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that such application, or Your possession and use of such application, infringes that third party’s intellectual property rights, Brivo, not Apple [or any other applicable Third Party Platform Provider], will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Behavior Analytics
Brivo collects information about Your use of the Site via the use of widely used information-gathering technologies, such as cookies and Web beacons (“Web Site Navigational Information”). Brivo also uses certain third party web analytics tools to collect and provide us with Web Site Navigation Information. Web Site Navigational Information includes standard information from Your Web browser (such as browser type and browser language); Your Internet Protocol (“IP”) address; and the actions You take on our Site, such as the pages viewed, links clicked, mouse movements, scrolling, information on pages visited, and content accessed on the Web Site. Brivo may also collect information about Your device such as device type (desktop, tablet, phone), screen resolution, language, and similar metadata. If You are located in Europe, Your IP address, keystroke activity, and other personal information collected automatically on the Site are never stored or shared with any third-parties.
- Governing Law; Venue
This Agreement will be governed by and construed in accordance with the laws of the State of Maryland, United States of America. THE PARTIES AGREE THAT THE UNIFORM COMPUTER TRANSACTIONS ACT OR ANY VERSION THEREOF, ADOPTED BY ANY STATE, IN ANY FORM (“UCITA”), WILL NOT APPLY TO THIS AGREEMENT. TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES AGREE TO OPT OUT OF THE APPLICABILITY OF UCITA PURSUANT TO THE OPT-OUT PROVISION(S) CONTAINED THEREIN. You represent and warrant that (i) neither You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties. Any suit, action or proceeding arising in connection with this Agreement will be brought in the state or federal courts sitting in the State of Maryland and You hereby expressly submit to the jurisdiction of such courts for the purpose of any such suit, action, or proceeding.
- For Government End Users
The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
All waivers by Brivo will be effective only in writing. Any waiver of failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
This Agreement is the entire agreement between You and Brivo relating to the Licensed Application. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement will continue in full force and effect. This Agreement may only be modified by a written document that has been signed by both You and Brivo. Brivo will have no liability under this Agreement to the extent that it is delayed, prevented or hindered in performing any of its obligations under this Agreement as a result of a Force Majeure Event. Should You have any questions concerning this Agreement, or if You desire to contact Brivo for any reason, please write to Brivo Customer Care, 7700 Old Georgetown Road, Suite 300, Bethesda, Maryland 20814, U.S.A. or visit Brivo’s website at https://www.brivo.com.
Effective Date: November 11, 2022