Updated: August 1, 2022
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Capitalized terms used, but not defined in the Agreement, shall have the meanings given in Section 1 (Definitions).
1. 1 “Activation” means the time of provisioning of the first Brivo Hardware component under Customer’s account within the Brivo System (as an example, a control panel is registered within the Brivo System).
1.2 “Administrator” means individuals or third-party software connected to the Brivo System that are authorized by the Customer to access the Brivo System for the purpose of administration and management of the Brivo System and Customer Data.
1. 3 “Brivo Firmware”mean certain firmware that is embedded or installed in Brivo Hardware.
1. 4 “Brivo Hardware” means hardware manufactured by or on behalf of Brivo, branded with Brivo’s trademarks and sold by Brivo or a Brivo Reseller for use in connection with the Brivo System.
1. 5 “Brivo Mobile Applications” means Brivo’s downloadable applications that operate on mobile devices for the use of Brivo System Administrators and Users to access the Brivo System.
1.6 “Brivo Products” means the Brivo System and Brivo Hardware (each as defined herein).
1.7 “Brivo Reseller” means an independent company authorized in writing by Brivo to resell Brivo Products.
1.8 “Brivo Service” means Brivo’s cloud-based software service to which Customer has subscribed, which may include Brivo Access® (formerly Brivo Onair®), Brivo Smart Home (or such other name(s) for such services as may be designated by Brivo from time to time).
1.9 “Brivo System” means Brivo’s proprietary access control system that consists of the Brivo Website, proprietary Brivo software applications and technology, Brivo Mobile applications, Brivo Firmware and Brivo Application Programing Interface (“Brivo API”) that together when used with the Brivo Hardware enable access to and use by Customer and its Administrators and Users of the Brivo Service.
1.10 “Brivo Website” means Brivo’s websites located at www.brivo.com, or any successor or alternate website designated in writing by Brivo from time to time used for providing the Brivo System.
1.11 “Controller(s)” means any person or organization that, alone or jointly with others, determines the purposes and means of the Processing of Personal Data. Controllers make decisions about processing activities. Customer is the Controller of Customer Data (as defined below), while Brivo is a Processor (as defined below). Brivo is the Controller for User Private Data (as defined below).
1.12 “Customer Data” mean 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, Administrators, Users or third party software using the Brivo System. Customer Data does not include User Private Data (as defined below).
1.13 “Documentation” means any written online documentation, manuals or guides for the Brivo System 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 Brivo System.
1.14 “End User” means any third-party entity to whom Brivo and/or the Brivo Reseller has licensed or resold Products in accordance with the terms and conditions of this Agreement.
1.15 “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, pandemics, Internet, telecommunications or other third-party service failures/outages/delays, third-party hosting facility failures, failure of third-party products, denial of service attacks, or other similar occurrences. Notwithstanding the foregoing, “Force Majeure Event” expressly excludes any event that a Party reasonably could have prevented by reasonable precautions and reasonably circumvented through the use of alternate sources, work-around plans or other means.
1.16 “Party” means Brivo or Customer, as applicable, and “Parties” means Brivo and Customer, collectively.
1.17 “Processor(s)” means any natural or legal person, public authority, agency, or other body that Processes Personal Data on behalf of Controller.
1.18 “User(s)” means individuals who are authorized by Customer or another authorized User to use the Brivo System primarily via Brivo Mobile Applications and who may have been supplied user identifications and passwords. Users may include but are not limited to Customer employees, consultants, contractors, visitors agents and residents. Users are authorized by Customer with limited functional and/or administrative access to the Brivo System for the purpose of executing specific functions granted to that User. This includes functions available on the Brivo Website, within the Brivo Mobile Applications and within third-party software applications connected to the Brivo System.
1.19 “User Private Data” means all data, files, logs and personal data (for example, device type, OS version, device UUID, User location) that is available to Brivo through the User’s interaction with the Brivo System, that is not available to the Customer or its Administrators.
2. THE BRIVO SYSTEM
2.1 Brivo Hardware. This Agreement constitutes the agreement between Customer and Brivo with respect to Customer’s access to and use of the Brivo System. 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, Customer’s use of hardware (whether Brivo Hardware or third-party hardware integrated or used in connection with the Brivo System) or other Brivo products or services that are made available under separate terms and conditions. Brivo Hardware is sold separately by Brivo Resellers subject to certain warranties provided by such Brivo Resellers. Third-party hardware, software and services are sold separately and may be subject to certain warranties provided by the manufacturer or service provider. If Customer experiences a problem with hardware used in connection with the Brivo System (whether Brivo Hardware or third-party hardware) or third-party software or services, Customer should contact the Brivo Reseller from whom Customer purchased such hardware, software or services.
2.2 Technical Support and Maintenance. Reseller-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 Customer and a Brivo Reseller pursuant to a separate written agreement.
2.3 Access During The Subscription Period. Brivo will make the Brivo System available to Customer, Administrators and Users pursuant to this Agreement during the applicable Subscription Period. The “Subscription Period” means Customer’s initial service period for the Brivo System and any renewals or extensions thereof agreed to by the Brivo Reseller, as set forth in a written agreement between Customer and the applicable Brivo Reseller. Customer agrees that its 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. Customer acknowledges and agrees that: (i) payment terms for the Brivo System must be established separately and independently in writing between Customer and the applicable Brivo Reseller; (ii) Customer will pay all amounts payable in respect of Customer’s 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 other written agreement between Customer and Brivo concerning the subject matter hereof constitutes the entire agreement between Customer and Brivo regarding the provision by Brivo, and the access and use by Customer and its Users, of the Brivo System and controls as to any terms; (iv) the terms and conditions of any purchase order or other agreement between Customer 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 System and use the Brivo Firmware in accordance with and subject to the terms and conditions of this Agreement); and (vi) Customer’s non-payment of any amount owed to a Brivo Reseller relating to the Brivo System will constitute a basis for Brivo’s suspension of Customer’s access to and use of the Brivo System and/or termination of this Agreement (in the discretion of Brivo). Customer further acknowledges and agrees that it is responsible for providing and maintaining the hardware, computer and mobile device 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 Customer obtained its subscription to the Brivo System.
3. USE OF THE BRIVO SYSTEM
3.1 Scope of Responsibility. Customer is responsible for its Administrator’s compliance with this Agreement and the Documentation, and all activity that occurs under Customer’s account within the Brivo System. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and Customer will ensure that all instructions given to Brivo in respect of the Customer 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 Customer’s 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. User Private Data is maintained solely by Brivo in accordance with a separate agreement between Brivo and the User.
3.2 Verification of Administrators or Users. Customer is responsible for verifying that all individuals who are designated as an Administrator or User of Customer’s Brivo System account are authorized by Customer for the levels of access granted. Customer shall designate an Administrator who is its employee to be the primary administrator of Customer’s account. If Customer permits an individual who is not its employee (including any Brivo Reseller or other third party) to have any administrative rights or other access or privileges to Customer’s account or Customer Data, Customer is responsible for monitoring the third party’s access to and use of its account and Customer Data. Customer is solely responsible for any unauthorized use or misuse of Customer account access, account privileges or Customer Data by anyone using access provided by Customer.
3.3 Internal Business Purposes. Customer may use the Brivo System solely for its internal business purposes as contemplated by this Agreement and the Documentation and Customer 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, Trojan horses or other 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.
4. BRIVO SERVICE SLA
4.1 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 Service, calculated per calendar quarter, where “Availability” is calculated as follows: Uptime/(Uptime+Downtime) = Availability, where: “Uptime” means the time the Brivo Service is available, and includes any period during which the Brivo Service 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 Excused Downtime; “Downtime” means the time the Brivo Service is not available, other than due to Scheduled Maintenance or Excused Downtime; and “Excused Downtime” means any period of unavailability or inoperability caused by a Force Majeure Event.
4.2 Service Credit. Should Brivo fail to make the Brivo Service available 99.9% of the time as calculated above in a calendar quarter, as Customer’s sole and exclusive remedy, Customer may request from Brivo a credit for one full day of subscription fees for each active subscription on the affected services in that quarter, for each full or partial hour of services unavailability below the percentage specified above.
4.3 Scheduled Maintenance. Brivo will use commercially reasonable efforts to provide at least 24 hours’ notice of Scheduled Maintenance, which notice may be provided through the Brivo Service. Brivo reserves the right to automatically update Brivo Firmware for devices connected to the Brivo Service at any time, and Customer acknowledges that such automatic updates may result in temporary service interruptions.
5. PROPRIETARY RIGHTS
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Brivo and its licensors reserve all of their 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 Customer or Users hereunder other than as expressly set forth in this Agreement. Customer shall not (and Customer shall not permit 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.
5.2 Customer Data. As between Brivo and Customer, Brivo acknowledges and agrees that Customer exclusively owns all rights, title and interest in and to Customer Data. Customer Data is deemed the Confidential Information of Customer under this Agreement. Customer grants Brivo and its affiliates and third-party service providers a limited worldwide license to host, have hosted, copy, transmit, access, use and display their Customer Data solely in order to provide the services in accordance with this Agreement.
6.1 Confidential Information Defined. “Confidential Information” means all confidential information of a Party or its affiliates (as applicable, “Disclosing Party”) disclosed to the other Party (as applicable, “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) Customer Confidential Information includes, without limitation, Customer Data and Customer 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 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.
6.2 Non-Disclosure. 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 use reasonable care in protecting the confidentiality of the Confidential Information of the other Party. The Receiving Party may disclose the Confidential Information of the Disclosing Party to the extent required by law or legal process 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. Brivo does not share, sell, rent or trade personally identifiable information with third parties for promotional purposes. Notwithstanding the foregoing, Customer acknowledges and agrees that Brivo may anonymize data Customer uploads to and/or stores 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-parties.
6.3 Remedies. 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.
7.1 Privacy Policies. 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 https://www.brivo.com/privacy and the Brivo Services Privacy Statement https://www.brivo.com/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.
7.2 Personal Information. Brivo may not sell any Personal Information, as defined under the California Consumer Privacy Act of 2018, as amended from time to time, and any related regulations and guidance provided by the California Attorney General pertaining to the sameto same (“CCPA”). The Parties agree that, for purposes of this Agreement, Brivo is a “Service Provider” (not a “third party”) to Customer pursuant to CCPA.
7.3 Local Privacy and Data Protection. Brivo undertakes no obligation to monitor Customer’s data collection, data use or data exporting practices in the context of data processing, data privacy, protection or similar laws of any U.S. State, locality or other jurisdiction (“Local Laws”). If, as a result of a change in any Local Laws or the promulgation of any new Local Laws applicable to Customer, Customer’s continued use of the Brivo System would subject Brivo to any different or additional obligation, then Customer will promptly inform Brivo in writing of such different or additional obligation. Brivo will inform Customer in writing, within 30 days of receipt of Customer’s notice, whether Brivo agrees to comply with such different or additional obligation (and if so, any conditions thereto). If Brivo does not agree to comply with such different or additional obligation, or if Brivo agrees to comply with such different or additional obligation on conditions not acceptable to Customer, Customer may elect to terminate this Agreement without penalty upon written notice to Brivo. Similarly, if Brivo learns of a change in any Local Laws or the promulgation of any new Local Laws applicable to Customer that would subject Brivo to any different or additional obligation with which Brivo does not comply, then Brivo may elect to terminate this Agreement without penalty upon written notice to Customer.
8. DATA RETENTION
8.1 During Customer’s Subscription Period Customer Data will be available for the period stipulated by Customer’s subscription plan. Customer Data one year older than the retention period stipulated by the Customer’s subscription plan may be available from Brivo via a professional service order, for an additional fee to be agreed upon in writing by Customer and Brivo or the applicable Brivo Reseller. Data stored via the Brivo System within terminated accounts (subject to Section 12 below) 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.
9. REPRESENTATIONS, LIMITED WARRANTIES & DISCLAIMERS
9.1 Brivo Limited Warranties. Brivo warrants that during Customer’s applicable Subscription Period, the Brivo System will perform under normal use in all material respects in accordance with the Documentation.
9.2 Customer Representations and Warranties. Customer represents and warrants to Brivo that the collection and processing of Customer Data as contemplated by this Agreement will comply in all respects with applicable privacy and data protection laws and regulations.
9.3 Disclaimers. 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 CUSTOMER’S 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.
10. DISCLAIMER OF DAMAGES
10.1 Disclaimers and Limitations. 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 EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES 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 SUCH DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOST DATA, PERSONAL INJURY AND COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUCH PARTY OR ITS AFFILIATES HAVE 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 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 PAID BY CUSTOMER FOR THE BRIVO SYSTEM IN THE TWENTY-FOUR (24) MONTHS PRIOR TO THE ACT GIVING RISE TO LIABILITY.
11.1 Indemnification by Brivo. Subject to the additional provisions of this Section 11, Brivo will defend, indemnify and hold Customer and its directors, managers, officers, employees and agents (each a “Customer Indemnified Party”) harmless from and against all damages, expenses, and costs (including settlement costs and reasonable attorneys’ fees) incurred by any Customer Indemnified Party 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 United States patent, or misappropriates a third-party trade secret; provided that Customer (i) promptly notifies Brivo in writing of any such Third Party Claim; (ii) allows Brivo to have sole control of the defense of any such Third Party Claim and any related settlement negotiations, provided that Brivo may not enter into a settlement without the prior written approval of Customer (not to be unreasonably withheld, conditioned, or delayed); and (iii) provide Brivo with such reasonable information, authority and assistance necessary for the defense or settlement of any such Third Party Claim.
11.2 Exclusions. In no event will Brivo have any obligations or liability under this Section 11 arising from or relating to: (i) Customer’s use of the Brivo System or any portion thereof to the extent caused by such use in a modified form or in combination with software, technologies, products, or devices not provided by Brivo; (ii) Customer’s breach of this Agreement; or (iii) any Customer Data.
11.3 Indemnification by Customer. In addition to Customer’s obligations under any other written agreement with Brivo, Customer 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, 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 Customer or Users of any obligations under applicable local, state, federal and foreign laws, including applicable privacy and data protection laws and regulations; or (ii) that Customer Data (including Customer’s collection or use of Customer Data), or Customer’s (or 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.
12. TERM & TERMINATION
12.1Term. Subject to the terms and conditions of this Agreement, Customer’s applicable Subscription Period will begin on Activation and unless sooner terminated as provided below, will continue until the Subscription Period expires or is otherwise terminated as set forth in a written agreement between Customer and the applicable Brivo Reseller from whom Customer acquired its subscription to the Brivo System. Customer’s rights to access and use the Brivo System will automatically terminate at the end of the Subscription Period or earlier termination of this Agreement as provided below, and Customer acknowledges and agrees that upon such termination, Brivo may disable Customer’s access to and use of the Brivo System without liability.
12.2 Termination by Brivo. Brivo may terminate this Agreement upon written notice to Customer or suspend Customer’s account within the Brivo System prior to the expiration of the Subscription Period if: (i) Customer 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; (ii) Customer fails to pay when due any undisputed amount owed to a Brivo Reseller relating to this Agreement (subject to any applicable cure period set forth in a separate written agreement between Customer and the applicable Brivo Reseller); or (iii) if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.3 Termination by Customer. Customer may terminate this Agreement upon written notice to Brivo prior to the expiration of the 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 13 below.
12.4 Customer Data. Following a request by Customer made within 30 days after the effective date of termination or expiration, Brivo will make available to Customer for download a file of certain of Customer’s Customer 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 therefore. After such 30-day period, provided that Brivo has complied with its obligations to make available to Customer the aforementioned Customer Data file following a request by Customer made within 30 days after the effective date of termination or expiration, Brivo will have no obligation to maintain or provide to Customer any of its Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession. Customer acknowledges and agrees that it is Customer’s responsibility to download and retain any other Customer Data prior to expiration or termination of the Subscription Period.
12.5 Survival. The provisions of Sections 1 and 5 through 13 of this Agreement will survive any termination or expiration of this Agreement.
13.1 Choice of Law. 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 Customer hereby expressly submits to the exclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding.
13.2 Entire Agreement. This Agreement, the Documentation, the Privacy Policies and any other written agreement between Customer and Brivo relating to the Brivo System is the entire agreement between Customer 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. Customer acknowledges that in entering into this Agreement, it has 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 Customer and Brivo have entered into a separate written agreement governing Customer’s 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 Customer’s access to and use of the Brivo System.
13.2 Severability. 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.
13.3 System Adjustments; Amendments. 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 Customer 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 Customer’s access to or use of the Brivo System. This Agreement may be amended from time to time by Brivo upon written notice to Customer. The then-current version of this Agreement is available to Customer at the Brivo Website (and the Brivo System). Customer acknowledges and agrees that the posting of amendments to or amended or restated versions of this Agreement at the Brivo Website, the Brivo System or by email message will constitute written notice to Customer of such amendments. By continuing to use the Brivo System after the effective date of any amendments to this Agreement, Customer agrees to be bound by the amended terms.
13.4 Force Majeure. 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 any Force Majeure Event.
13.5 Assignment. Customer may not assign or transfer this Agreement or any of its 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, except (i) to an affiliate that controls, is controlled by or is under common control with Customer or (ii) to a successor in interest in connection with the sale of all or substantially all of the assets of Customer. Any attempt by Customer to assign this Agreement or any of its 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.
13.6 Transfer of Account. If Customer is current and in compliance with all of its contractual obligations to its then-current Brivo Reseller, Customer may request the transfer of its 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 Customer account transfers.
13.7 Waiver. No rights of Brivo or breach by Customer 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.
13.8 Governmental Use. 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.
13.9 Not Insurance. Customer acknowledges and agrees that Brivo is not an insurer and that Brivo is not providing Customer with insurance of any type. The amounts Customer pays Brivo or a Brivo Reseller are not insurance premiums and are not related to the value of Customer’s physical facilities or property, anyone else’s property located at Customer’s physical facilities or any risk of loss or injury at Customer’s physical facilities. Rather, the amounts Customer pays Brivo or a Brivo Reseller are based solely on the value of Customer’s subscription to the Brivo System, which is provided subject to the express limitations of liability set forth in this Agreement. If Customer desires insurance to protect against risk of loss or injury at or to its physical facilities, Customer will need to separately purchase such.
13.10 Illegality. Customer represents and warrants to Brivo that Customer has 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 Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Brivo in writing.
13.11 Export Compliance. 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. Customer represents that it is not named on any U.S. government denied-party list. Customer will not permit Users to access or use the Brivo System in a U.S. embargoed country or in violation of any U.S. export law or regulation.
13.12 Notices by Brivo. Brivo may provide any notice to Customer under this Agreement by sending a message to the email address then associated with Customer’s account. Notice provided by email will be effective when Brivo sends the email. It is Customer’s responsibility to keep its account contact email address current. Customer will be deemed to have received any email sent to the email address then associated with its account when Brivo sends the email, whether or not Customer actually receives it.
13.13 Notices by Customer. Notices provided to Brivo by Customer under this Agreement must be sent either by: (i) email transmission to [email protected] 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 Customer’s account. Notices sent by Customer to Brivo are effective upon receipt by Brivo.
13.14 Construction. 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.