Updated March 17, 2020
Capitalized terms used, but not defined in the Agreement, shall have the meanings given in Section 1 (Definitions).
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows
“Brivo Website” means Brivo’s websites located at www.brivo.com, https://acs.brivo.com or any successor or alternate website designated in writing by Brivo from time to time used for providing the Services.
“Customer Data” means all data, files, documents, materials, information, audio, video, images, personal data (i.e., information that relates to an identified or identifiable natural person and all other data attributed to such term or similar terms in applicable data privacy law), or other content (whether of Customer, its clients or other third parties) transmitted, stored, uploaded, or Processed by Customer or under Customer’s account(s), using Brivo’s Service.
“Documentation” means any written online documentation, manuals or guides for the Service published by Brivo and supplied to Customer by Brivo or an authorized Brivo reseller, as updated from time to time in Brivo’s sole discretion, available at the Brivo Website or via login to the Service; provided, however, that any such updates will not materially alter the Customer’s use of the Services or further obligate or change Customer’s responsibilities under this Agreement.
“Excused Downtime” means any period of unavailability or inoperability caused by a Force Majeure Event.
“Force Majeure Event” means any circumstance or occurrence beyond the reasonable control of the affected Party, including, without limitation, acts or omissions by a public authority, acts of God, blockades, acts of terrorism, riots, storms, earthquakes, explosions, fires, floods, Internet or telecommunications failures/outages/delays (other than those Internet service providers under contract with Brivo), third party hosting facility failures, denial of service attacks, or other similar occurrences. Notwithstanding the foregoing, “Force Majeure Event” expressly excludes: (i) any event that Brivo reasonably could have prevented by any testing either required to be performed pursuant to the Services or necessary to provide the Services; (ii) any Brivo personnel strike, walkout or other labor shortage; (iii) any non-performance of Brivo personnel, regardless of cause (unless due to a Force Majeure Event); and/or (iv) any event which could have been prevented by reasonable precautions and can reasonably be circumvented by the non-performing Party through the use of alternate sources, work-around plans or other means.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Process” and its derivatives means to perform any operation or set of operations on, including to (a) obtain, have access to, collect, receive, input, upload, download, record, reproduce, merge, modify, organize, combine, log, catalog, cross-reference, manage, maintain, store, copy, alter, adapt, translate or make other improvements or derivative works of; (b) use, process, retrieve, output, consult, transmit, share, disseminate, submit, post, transfer, distribute, or otherwise provide and make available; or (c) block, erase, disclose or destroy, or any other form of processing, including as “process” or “processing” may be defined under applicable processing laws.
“Scheduled Maintenance” means any period during which the Service is unavailable for maintenance, including the implementation of any updates, enhancements, patches, fixes, or error corrections.
“Service” means the online, Web-based hosted software service made available on a worldwide basis by Brivo via the Brivo Website under the name Brivo Onair (or such other name(s) as may be designated by Brivo from time to time), including associated offline components, as described by the Documentation, whether used or accessed by Customer prior to or after the Effective Date; including but not limited to all services, functions, responsibilities or tasks not specifically described in the Agreement, but which are an inherent part of, or a necessary sub-part included within, or that are reasonably required for, the proper performance and delivery of the services, and all related Documentation, including those services provided by Brivo, directly or indirectly, that involve accessing, generating, Processing, hosting, downloading, printing, maintaining, transferring, receiving, or storing Customer content or other Customer Data, including, for example, application management, data Processing, hosting, or cloud services.
“Users” means individuals on a worldwide basis who are authorized by Customer to use the Service and who have been supplied user identifications and passwords by Customer. Users may include but are not limited to Customer employees, consultants, contractors and agents.
- The Brivo System
This Agreement constitutes the agreement between You and Brivo with respect to Your access to and use of the Brivo System. The “Brivo System” is Brivo’s proprietary access control system that consists of Brivo’s cloud-based software service called Brivo Onair® (or such other name(s) as may be designated by Brivo from time to time) (the “Brivo Service”), which is made available via Brivo’s website located at https://www.brivo.com (or any successor or alternate website designated in writing by Brivo from time to time) (the “Brivo Website”) and is described in the then-current version of the written online documentation, manuals or guides for the Brivo Service published by Brivo and made available at the Brivo Website or via login to the Brivo Service (as updated from time to time in Brivo’s sole discretion, the “Documentation”), and includes certain firmware (the “Brivo Firmware”) that is embedded or installed in hardware manufactured by or on behalf of Brivo, branded with Brivo’s trademarks and sold by Brivo or an authorized Brivo reseller (“Brivo Reseller”) for use in connection with the Brivo Service (the “Brivo Hardware”). Except for the Brivo Firmware embedded or installed in Brivo Hardware, the Brivo System described in this Agreement does not include, and this Agreement does not cover, hardware (whether Brivo Hardware or third-party hardware integrated or used in connection with the Brivo Service) or other Brivo products or services that are made available under separate terms and conditions. Brivo Hardware is sold separately subject to certain warranties. Third-party hardware, software and services are sold separately and may be subject to certain warranties provided by the manufacturer or service provider. If You experience a problem with hardware used in connection with the Brivo Service (whether Brivo Hardware or third-party hardware) or third-party software or services, contact the Brivo Reseller You purchased such hardware, software or services from.
Brivo provided technical support and maintenance services are also not part of the Brivo System. The terms and conditions for any technical support or maintenance services for the Brivo System and any Brivo Hardware must be established independently between You and Brivo or a Brivo Reseller pursuant to a separate written agreement.
Brivo will make the Brivo System available to You and the individuals who are authorized by You to use the Brivo System and who have been supplied user identifications and passwords by You (or by a Brivo Reseller on Your behalf) (Your “Users”) pursuant to this Agreement during the applicable Subscription Period. The “Subscription Period” means Your initial service period for the Brivo System and any renewals or extensions thereof agreed to by Brivo or a Brivo Reseller, as set forth in a written agreement between You and Brivo or the applicable Brivo Reseller. You agree that Your purchase of the subscription to the Brivo System 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 and agree that: (i) payment terms for the Brivo Service must be established separately and independently in writing between You and Brivo or the applicable Brivo Reseller; (ii) You will pay all amounts payable in respect of Your access to and use of the Brivo System when due without setoff, deduction or delay of any kind; (iii) this Agreement, the Documentation and any order form or other written agreement between You and Brivo establishing payment terms between You and Brivo constitutes the entire agreement between You and Brivo regarding the provision by Brivo, and the access and use by You and Your Users, of the Brivo System and controls as to any terms; (iv) the terms and conditions of any purchase order or other agreement between You and the applicable Brivo Reseller are not binding on Brivo; (v) the Brivo Reseller is not Brivo’s agent and is not authorized to alter, amend or modify the terms of this Agreement, or otherwise grant any rights relating in any way to the Brivo System (other than the right to subscribe to the Brivo Service and use the Brivo Firmware in accordance with and subject to the terms and conditions of this Agreement); and (vi) Your non-payment of any amount owed to Brivo or a Brivo Reseller relating to the Brivo System will constitute a basis for Brivo’s suspension of Your access to and use of the Brivo System and/or termination of this Agreement (in the discretion of Brivo). You further acknowledge and agree that You are responsible for providing and maintaining the hardware, operating system software and Internet connection necessary to access and use the Brivo System, and that Brivo makes no representation or warranty with regard to any services provided by any third party, including any Brivo Reseller from whom You obtained Your subscription to the Brivo System.
- Use of the Brivo System
You are responsible for Your Users’ compliance with this Agreement and the Documentation, and all activity that occurs under Your account for the Brivo System. You will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data, records, event or activity data (including video, if applicable) or information (including any personal information of Your Users or others or business information) submitted by You to the Brivo Service or that is otherwise captured or collected via Your use of the Brivo System (collectively, “Account Data”) and You will ensure that all instructions given to Brivo in respect of the Account Data will be in compliance with all applicable local, state, federal and foreign laws, including applicable privacy and data protection laws; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Brivo System, 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 Brivo System, including all applicable privacy and data protection laws and regulations.
You are responsible for verifying that all individuals who are designated as administrators of Your Brivo System account are authorized by You for the levels of access granted. In general, Brivo recommends that You designate a User who is Your employee to be the master administrator of Your account. If You choose to permit an individual who is not Your employee (including any Brivo Reseller or other third party) to have any administrative rights or other access or privileges to Your account or Account Data, You are responsible for monitoring the third party’s access to and use of Your account and Account Data. Brivo is not responsible for any unauthorized use or misuse of Your account access, account privileges or Account Data by anyone using access provided by You.
You may use the Brivo System solely for Your internal business purposes as contemplated by this Agreement and the Documentation and You may not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Brivo System 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 code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses (“Malicious Code”); (iv) intentionally interfere with or disrupt the integrity or performance of the Brivo System or the data contained therein; or (v) attempt to gain unauthorized access to the Brivo System or its related systems or networks.
- Brivo System Availability
Brivo will use commercially reasonable efforts to: (i) maintain the security and integrity of the Brivo System and (ii) maintain 99.9% Availability for the Brivo System, calculated per calendar quarter, where “Availability” is calculated as follows: Uptime/(Uptime+Downtime) = Availability, where:
“Uptime” means the time the Brivo System is available, and includes any period during which the Brivo System is unavailable (i) for maintenance, including for the implementation of any updates, enhancements, patches, fixes, or error corrections (as applicable “Scheduled Maintenance”), and (ii) as a result of circumstances or occurrences beyond Brivo’s reasonable control, including acts or omissions by a public authority, acts of God, strikes, blockades, acts of terrorism, riots, storms, earthquakes, explosions, fires, floods, Internet or telecommunications failures/outages/delays, third-party hosting facility failures, denial of service attacks, or other similar occurrences (as applicable, “Excused Downtime”); and
“Downtime” means the time the Brivo System is not available, other than due to Scheduled Maintenance or Excused Downtime.
Brivo will use commercially reasonable efforts to provide at least 24 hours’ notice of Scheduled Maintenance, which notice may be provided through the Brivo System. Brivo reserves the right to automatically update Brivo Firmware for devices connected to the Brivo System at any time, and You acknowledge that such automatic updates may result in temporary service interruptions.
- Proprietary Rights
Subject to the limited rights expressly granted hereunder, Brivo and its licensors reserve all of Brivo’s and its licensors’ rights, title and interest in and to the Brivo System and all portions thereof, including all related intellectual property rights. No rights are granted to You or Your Users hereunder other than as expressly set forth herein. You will not (and You will not permit Your Users to): (i) modify, copy or create derivative works based on the Brivo System or any portion thereof; (ii) frame or mirror any content forming part of the Brivo System; (iii) reverse engineer the Brivo System or any portion thereof (to the extent such restriction is permitted by law); or (iv) access the Brivo System in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Brivo System.
As between Brivo and You, Brivo acknowledges and agrees that You exclusively own all rights, title and interest in and to all Account Data. Account Data is deemed Your Confidential Information under this Agreement. You grant Brivo and its affiliates and third-party service providers a limited worldwide license to host, have hosted, copy, transmit, access, use and display Your Account Data in accordance with this Agreement.
“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. Without limiting the generality of the foregoing, (i) Your Confidential Information includes, without limitation, Your Account Data and Your business, technology and technical information and data, and (ii) Brivo’s Confidential Information includes, without limitation, the Brivo System, the Documentation, and Brivo’s business, technology and technical information and data, product designs, and business processes. Confidential Information (except for Account 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.
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 or as required by law. 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). The Receiving Party may disclose the Confidential Information of the Disclosing Party to the extent required by law or legal process to disclose Confidential Information of the Disclosing Party and any such disclosure will not constitute a breach of this Agreement; provided that the Receiving Party will provide the Disclosing Party with prior notice of such required disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Notwithstanding the foregoing, You acknowledge and agree that Brivo may anonymize data You upload to and/or store via the Brivo System, aggregate such anonymized data with anonymized data of other users of the Brivo System, and use or disclose such anonymized data to third-party service providers.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Agreement, 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 such unauthorized disclosure may cause irreparable injury to the Disclosing Party and other available remedies may be inadequate.
Brivo does not share, sell, rent or trade personally identifiable information with third parties for promotional purposes. Please see the current versions of the Brivo Privacy and Security Policy and the Brivo Services Privacy Statement (collectively, the “Privacy Policies”) for additional information, which may be found at the Brivo Website. The then-current versions of the Brivo Privacy Policies are incorporated into this Agreement by this reference, and such policies are subject to change as provided therein.
- Data Retention
During Your Subscription Period, access control activity and event data stored via the Brivo System is searchable and accessible via the activity log and reports function within the Brivo System web user interface for up to one (1) year from the date such data is recorded via the Brivo System. During Your Subscription Period, video recordings, if applicable, are available for the period stipulated by Your video subscription plan. During Your Subscription Period, access control data older than one (1) year and less than two (2) years old may be available from Brivo via a professional service order, for an additional fee to be agreed upon in writing by You and Brivo or the applicable Brivo Reseller. Data stored via the Brivo System within terminated accounts (subject to Section 11 below) and data within active accounts that is two (2) years old or older is subject to permanent deletion. Data stored via the Brivo System will be retained for the periods described in this Section unless a longer retention period is required by applicable law.
- Limited Warranties & Disclaimers
Brivo warrants that: (i) during Your applicable Subscription Period, the Brivo System will perform under normal use in all material respects in accordance with the Documentation and (ii) the Brivo System will not introduce Malicious Code into Your systems. You represent and warrant to Brivo that the collection and processing of Your Account Data as contemplated by this Agreement will comply in all respects with applicable privacy and data protection laws and regulations.
The Brivo System does not cause and cannot eliminate occurrences of the events they are intended to detect or avert, including unauthorized access to physical premises, robberies, burglaries or similar incidents. THE ABOVE LIMITED WARRANTIES ARE THE ONLY WARRANTIES PROVIDED BY BRIVO REGARDING THE BRIVO SYSTEM. EXCEPT FOR THE LIMITED WARRANTIES ABOVE, THE BRIVO SYSTEM IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ALL OR ANY PART OF THE BRIVO SYSTEM, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. BRIVO DOES NOT WARRANT THAT THE BRIVO SYSTEM WILL MEET YOUR REQUIREMENTS OR NEEDS, OR THAT OPERATION OF THE BRIVO SYSTEM WILL BE UNINTERRUPTED, OR THAT THE BRIVO SYSTEM WILL BE ERROR-FREE, OR THAT ANY DEFECTS OR ERRORS IN THE BRIVO SYSTEM WILL BE CORRECTED.
- 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 AFFILIATES OR ANY OF THEIR RESPECTIVE MANAGERS, DIRECTORS, 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 BRIVO SYSTEM, INCLUDING 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 THE THEORY (WHETHER UNDER BREACH OF CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. IN NO CASE WILL BRIVO’S OR ITS AFFILIATES’ OR LICENSORS’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR UNDER THIS AGREEMENT, OR FOR BREACH OF THIS AGREEMENT, EXCEED THE AMOUNT OF THE SUBSCRIPTION FEES THAT YOU PAID FOR THE BRIVO SYSTEM IN THE EIGHTEEN MONTHS PRIOR TO THE ACT GIVING RISE TO LIABILITY.
Subject to the additional provisions of this Section 11, Brivo will defend, indemnify and hold You harmless from and against all direct damages, expenses, and costs (including settlement costs and reasonable attorneys’ fees) incurred by You arising out of any claim by a third party (a “Third Party Claim”) that the Brivo System, when used in accordance with this Agreement and the Documentation, infringes a third-party copyright or trademark, or infringes a patent issued by the United States, or misappropriates a third-party trade secret; provided that You (i) promptly notify Brivo in writing of any such Third Party Claim; (ii) allow Brivo to have sole control of the defense of any such Third Party Claim and any related settlement negotiations; and (iii) provide Brivo with such information, authority and assistance necessary for the defense or settlement of any such Third Party Claim.
In no event will Brivo have any obligations or liability under this Section 10 arising from or relating to: (i) Your use of the Brivo System or any portion thereof in a modified form or in combination with software, technologies, products, or devices not provided by Brivo; (ii) Your breach of this Agreement; or (iii) any Account Data.
In addition to Your obligations under any other written agreement with Brivo, You will defend, indemnify and hold Brivo and its affiliates and their respective, directors, managers, officers, employees and agents (each a “Brivo Indemnified Party”) harmless against any damages, losses, liabilities, expenses, and costs (including settlement costs and reasonable attorneys’ fees) incurred by any Brivo Indemnified Party arising out of any Third Party Claim alleging (i) a breach by You or Your Users of Your obligations under applicable local, state, federal and foreign laws, including applicable privacy and data protection laws and regulations; or (ii) that Your Account Data (including Your collection or use of Account Data), or Yours or Your Users’ use of the Brivo System in breach of this Agreement, infringes, breaches or misappropriates the intellectual property rights, of, or has otherwise harmed, a third party.
- Term & Termination
Subject to the terms and conditions of this Agreement, Your Subscription Period will begin on the date stipulated in the written agreement between You and Brivo or the applicable Brivo Reseller (and if not so specifically stipulated, on the first date of Your beneficial use of the Brivo System), and unless sooner terminated as provided below, will continue until Your Subscription Period expires or is otherwise terminated as set forth in a written agreement between You and Brivo or the applicable Brivo Reseller from whom You acquired Your subscription to the Brivo System. Your rights to access and use the Brivo System will automatically terminate at the end of Your Subscription Period or earlier termination of this Agreement as provided below, and You acknowledge and agree that upon such termination, Brivo may disable Your access to and use of the Brivo System without liability.
Brivo may terminate this Agreement upon written notice to You or suspend Your account for the Brivo System prior to the expiration of Your Subscription Period if: (i) You breach any material term or condition of this Agreement (subject to any applicable cure period set forth in any separate written agreement between You and Brivo); (ii) You fail to pay when due any amount owed to Brivo or a Brivo Reseller relating to this Agreement (subject to any applicable cure period set forth in a separate written agreement between You and Brivo or the applicable Brivo Reseller); or (iii) if You become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
You may terminate this Agreement upon written notice to Brivo prior to the expiration of Your Subscription Period if Brivo breaches any material term or condition of this Agreement and fails to cure such breach within 30 days of receipt of written notice of such breach, which notice must be delivered in accordance with the notice delivery provisions of Section 12 below.
Following request by You made within 30 days after the effective date of termination or expiration, Brivo will make available to You for download a file of certain of Your Account Data relating to credentialed Users, in pipe delimited (CSV) format for data. User photos can optionally be provided at Brivo’s then-current standard charges therefor. After such 30-day period, provided that Brivo has complied with its obligations to make available to You the aforementioned Account Data file following a request by You made within 30 days after the effective date of termination or expiration, Brivo will have no obligation to maintain or provide to You any of Your Account Data and may thereafter, unless legally prohibited, delete all of Your Account Data in its systems or otherwise in its possession. You acknowledge and agree that it is Your responsibility to download and retain any other Account Data prior to expiration or termination of Your Subscription Period.
The provisions of Sections 4 through 13 of this Agreement will survive any termination or expiration of this Agreement.
This Agreement will, in all respects, including matters of construction, validity and performance, be governed by and construed in accordance with the laws of the State of Maryland, United States of America (excluding the United Nations Convention on Contracts for the Sale of International Goods), without regard to any conflicts of laws principles which may result in the application of the laws of another jurisdiction. 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. Any suit, action or proceeding arising in connection with or relating to this Agreement will be brought only in the state or federal courts sitting in the State of Maryland and You hereby expressly submit to the exclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding.
This Agreement, the Documentation, the Privacy Policies and any other written agreement between You and Brivo relating to the Brivo System is the entire agreement between You and Brivo relating to the Brivo System and: (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communications between the parties. You acknowledge that in entering into this Agreement, You have not relied on any representations or warranties other than as expressly set forth in this Agreement. Certain other products and services offered by Brivo are subject to separate terms and conditions established from time to time by Brivo or third-party providers. If You have entered into a separate written agreement governing Your access to and use of the Brivo System that has been signed and dated by a duly authorized representative of Brivo and that states that it supersedes this Agreement, then that separate written agreement will supersede this Agreement and will govern Your access to and use of the Brivo System.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. If the parties cannot reach a mutually agreeable and enforceable replacement, then (i) such provision will be excluded from this Agreement; (ii) the balance of the Agreement will be interpreted as if such provision were so excluded and (iii) the balance of the Agreement will be enforceable in accordance with its terms.
Brivo reserves the right to change or discontinue the Brivo System or change or remove features or functionality of the Brivo System from time to time; provided that Brivo will use commercially reasonable efforts to provide You at least 120 days’ prior written notice of any discontinuation or change or removal of features or functionality that would reasonably be expected to materially and adversely affect Your access to or use of the Brivo System. This Agreement may be amended from time to time by Brivo upon signed written agreement between the parties.
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 due to the occurrence or existence of any circumstance or event that would constitute or result in Excused Downtime.
You may not assign or transfer this Agreement or any of Your rights or obligations under this Agreement, in whole or in part, voluntarily, by operation of law or otherwise, including by merger, consolidation or acquisition of a controlling interest in a party, without the prior written consent of Brivo. Any attempt by You to assign this Agreement or any of Your rights or obligations hereunder in violation of this Section will be null and void and shall constitute a material breach of this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
If You are current and in compliance with all of Your contractual obligations to Your then-current Brivo Reseller, You may request the transfer of Your account for the Brivo System to another Brivo Reseller. Any account transfer will be effected by Brivo in accordance with Brivo’s then-current policies and procedures relating to end user account transfers.
No rights of Brivo or breach by You of any provision of this Agreement will be waived by any act, omission, delay or knowledge of Brivo, except by a written document executed by a duly authorized representative of Brivo. Any waiver on one occasion will not constitute a waiver of any prior, concurrent, or subsequent occasions.
Brivo provides the Brivo System, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Brivo System include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Brivo to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
You acknowledge and agree that Brivo is not an insurer and that Brivo is not providing You with insurance of any type. The amounts You pay Brivo or a Brivo Reseller are not insurance premiums and are not related to the value of Your physical facilities or property, anyone else’s property located at Your physical facilities or any risk of loss or injury at Your physical facilities. Rather, the amounts You pay Brivo or a Brivo Reseller are based solely on the value of Your subscription to the Brivo System, which is provided subject to the express limitations of liability set forth in this Agreement. If You desire insurance to protect against risk of loss or injury at or to Your physical facilities, You will need to separately purchase such.
You represent and warrant to Brivo that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Brivo’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Brivo in writing.
The Brivo System and, other technology Brivo makes available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. You represent that You are not named on any U.S. government denied-party list. You will not permit Users to access or use the Brivo System in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria and Crimea – Region of Ukraine) or in violation of any U.S. export law or regulation.
Brivo may provide any notice to You under this Agreement by sending a message to the email address then associated with Your account. Notice provided by provided by email will be effective when Brivo sends the email. It is Your responsibility to keep Your account contact email address current. You will be deemed to have received any email sent to the email address then associated with Your account when Brivo sends the email, whether or not You actually receive it.
Notices provided to Brivo by You under this Agreement must be sent either by: (i) facsimile transmission to 1-(240)-965-2210 or (ii) by personal delivery, overnight courier or registered or certified mail to Brivo Systems LLC, 7700 Old Georgetown Road, Suite 300, Bethesda, Maryland 20814, U.S.A., attention Legal Department. Brivo may update the fax number or address for notices by posting a notice on the Brivo Website or by sending a message to the email address then associated with Your account. Notices sent by You to Brivo are effective upon receipt by Brivo.
The captions and article and section headings in this Agreement are for reference purposes only and will not affect the meaning or interpretation of this Agreement. The term “including” as used herein means “including without limitation.” The terms “herein,” “hereof,” “hereunder,” and similar terms refer to the Agreement as a whole, rather than any particular provision. Each party acknowledges that it has had the opportunity to review this Agreement with legal counsel. Any rule of construction that resolves ambiguities against the drafting party will not apply in the interpretation of the Agreement.