For contracts effective after January 20, 2019.
These Subscription Terms and Conditions set forth the terms and conditions pursuant to which Targetvision LLC provides users of its software (“Subscriber”) access to the Platform and the Services (as described below). These terms are referenced and incorporated into and govern the Order Form executed by the Subscriber in a written document and are also incorporated into and govern the subscription package purchased online through the Targetvision LLC website checkout page. Capitalized terms not defined here shall have the meaning given to them in the Order Form or in the checkout page on the Targetvision LLC website. Acceptance of the Order Form or Subscriber’s use of or access to the Platform and/or the Services shall constitute Subscriber’s unconditional acceptance of the Agreement. Targetvision LLC and Subscriber are sometimes referred to herein collectively as the “Parties” or individually as a “Party”. Subscription Terms and Conditions
DEFINITIONS. The below capitalized terms have the meanings set forth below or in the referenced provision. Other capitalized terms used herein are defined as they arise in this Agreement.
- “Confidential Information” means, with respect to a Party, all non-public information regarding such Party and its suppliers and partners and their respective businesses, technologies or research disclosed by or on behalf of such Party in connection with this Agreement, that is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, should in good faith be treated as proprietary and/or confidential. The Documentation and all non-public information regarding the Platform, the Platform Services (including but not limited to their performance, operation and data formats), and the information collected during the data shared and collected during the on-boarding and implementation process shall be deemed the Confidential Information of Targetvision LLC. The Subscriber Content shall be deemed the Confidential Information of Subscriber. The compensation to be paid by Subscriber is the Confidential Information of both Parties. Notwithstanding the foregoing, Confidential Information will not include any information that the Party receiving such information can establish by convincing written evidence: (a) was independently developed by the receiving Party without use of or reference to any Confidential Information belonging to the other Party; (b) was acquired by the receiving Party from a third party having the legal right to furnish same to the receiving Party; or (c) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the receiving Party).
- “Documentation” means the user documentation provided to Subscriber with respect to the use of the Platform and the Platform Services, as updated from time to time by Targetvision LLC.
- “Platform” means, the modules of Targetvision LLC’s proprietary gun range camera system and software, which Subscriber has purchased a subscription.
- “Registered User” means anyone who has been provided a unique user name and password for such access.
- “Subscriber Content” means all text, data, graphics, pictures or other content that Subscriber or Registered Users input, post or upload into the Platform, including but not limited to all content relating to Subscriber’s medical and technical equipment. As set forth in Section 5.2(b), Subscriber Content is the Confidential Information of Subscriber.
- SUBSCRIPTION; SUBSCRIPTION RESTRICTIONS
- Subscription to Targetvision LLC Platform. Subject to the terms and conditions in this Agreement, Targetvision LLC grants to Subscriber, and Subscriber accepts, a nonexclusive, nontransferable subscription (the “Subscription”), without the right to sublicense, to remotely access, via the Internet, an executing instance of the Targetvision LLC Platform (collectively, the “Platform Services”), solely for Subscriber’s internal business use.
- Subscriber Responsibilities and Cooperation. Subscriber shall be solely responsible, at its expense, for devices and hardware in connection with establishing, maintaining, and operating its connection to the Internet (the speed of which may have a significant impact on the responsiveness of the Platform Services), including all access lines, all Internet service provider connection charges, and any long distance telephone charges. Subscriber shall: (a) reasonably cooperate with Targetvision LLC in all matters relating to the Platform, Platform Services and Inspection Services; and (b) respond promptly to any Targetvision LLC request to provide information, approvals, authorizations or decisions that are reasonably necessary for Targetvision LLC to provide the Platform Services or enable Inspection Services in accordance with this Agreement.
- No Modification, Reverse Engineering, etc. Subscriber shall not, nor shall Subscriber permit any Registered User to, (a) copy, modify or create derivative works of the Platform or the Platform Services, or (b) access, attempt to access or otherwise interfere with the hosting servers, the Platform or the Platform Services (other than to access the functionality of the Platform and the Platform Services in accordance with the terms of this Agreement).
- As part of the Platform Services, Targetvision LLC (or its subcontractors as applicable) shall use good faith efforts to implement security measures (such as password protection and encryption) and maintain such other safeguards (including virus protection safeguards) which are reasonably intended to prevent the destruction, loss, interception, or alteration of Subscriber Content by unauthorized persons and which are consistent with current commercial practices in the industry. Subscriber expressly recognizes that, although Targetvision LLC shall take such reasonable steps, or cause such reasonable steps to be taken, to prevent security breaches, it is impossible to maintain flawless security. Subscriber and its Registered Users will not attempt to disable, modify or circumvent any security safeguard adopted by Targetvision LLC.
- SUBSCRIPTION TERM & TERMINATION.
- The term of the Agreement is three (3) years, and unless otherwise agreed in writing by the Parties, this Agreement shall commence on the Effective Date and continue for the period of time specified on the Order Form (such period being referred to as the “Initial Subscription Term”). Thereafter, unless specified otherwise on the Order Form, this Agreement shall automatically renew for successive renewal terms of 1 year each (each a “Renewal Subscription Term,” and, together with the “Initial Subscription Term”, the “Subscription Term”), unless either Party notifies the other Party in writing of its desire not to renew at least thirty (30) days prior to the expiration of the Initial Subscription Term or Renewal Subscription Term then in effect.
- Termination. This Agreement may only be terminated prior to the expiration of the Subscription Term by either Party, if the other Party materially breaches any provision of this Agreement and such breach remains uncured for at least sixty (60) days following notice thereof.
- Effects of Termination. Except as expressly provided herein, upon any expiration or termination of this Agreement prior to the end of the “Initial Subscription Term”: (i) all rights, subscriptions and obligations of Subscriber to access and use the Platform and the Services shall immediately cease and terminate and Subscriber and its Registered Users shall cease to use and access the Platform and the Services; (ii) Subscriber shall pay Targetvision LLC in full any remaining unpaid amounts owed to Targetvision LLC including any Services authorized hereunder.
Upon any expiration or termination of this Agreement after the end of the “Initial Subscription Term”: (i) all rights, subscriptions and obligations of Subscriber to access and use the Platform shall continue; however, subscriber’s platform will no longer receive updates and the platform features and functionality will remain unchanged from what was available at the end of the Subscriber’s “Subscription Term.”
Notwithstanding the foregoing, the provisions of Sections 1, 2.2, 2.3, 4, 5, 6, 7 and 8 shall survive the termination of this Agreement in accordance with their terms.
5. OWNERSHIP, INTELLECTUAL PROPERTY RIGHTS AND NONDISCLOSURE.
- Subscription Fees. Subscriber shall pay Targetvision LLC the subscription fees (“Subscription Fees”) set forth in the Order Form when due in accordance with the Order Form. Unless paid in a lump sum, payment under this Agreement will be made by automatic Electronic Funds Transfers (EFT’s). To accomplish this, Subscriber will provide their account information and authorization on the “Authorization Agreement for Electronic Funds Transfer and Automatic Payments” form which will be provided. Credit Card payments may be accepted at the discretion of Service Provider and will be subject to a convenience fee. The Subscription Fees shall remain unchanged during the Initial Subscription Term. Targetvision LLC may change the Subscription Fees for Renewal Subscription Terms by notifying Subscriber in writing of such change at least forty-five (45) days in advance of the Renewal Subscription Term in which such change or increase will take effect.
- Subscriber acknowledges that it is responsible for any sales, value-added, use or other taxes, tariffs and governmental charges that are due in connection with the sale and provision of, and access to, the Platform and the Services hereunder (except taxes based on Targetvision LLC’s net income for which Targetvision LLC shall be solely responsible), and that if Targetvision LLC is required to pay any such taxes or charges based on the Platform, the Services or other items provided to Subscriber, then such charges shall be billed to and paid by Subscriber. Subscriber shall obtain and provide to Targetvision LLC any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax, use tax or other tax liability.
- Payment Terms. Subscriber shall pay any setup fee shown in the Order Form within thirty (30) days from the Effective Date. Subscriber shall pay the first monthly license fee described in the Order Form no later than the last business day in the calendar month in which the Effective Date occurs. Thereafter, monthly license fees shall be due on or before the first calendar day of each month. All payments shall be made in U.S. Dollars. In addition to any other remedies available to Targetvision LLC hereunder, if Subscriber fails to pay any amounts within thirty (30) days after payment is due, then Subscriber shall pay Targetvision LLC a late payment charge equal to 5% per month (or the highest rate permitted by law, if lower), together with all costs and expenses, including reasonable attorney fees, incurred by Targetvision LLC in collecting such overdue amounts.
6. LIMITED WARRANTY; LIMITATIONS OF LIABILITY
- Targetvision LLC and its licensors are the sole owners of the Platform, and of all copyright, trade secret, patent, trademark and other intellectual property rights therein and thereto. This Agreement does not provide Subscriber with any rights to the Platform, the Services, or any copies thereof except as expressly set forth herein. As between Subscriber and Targetvision LLC, Subscriber is the sole owner of the Subscriber Content and all intellectual property right therein and thereto, and this Agreement does not provide Targetvision LLC with any rights to the Subscriber Content except as expressly set forth herein.
- Confidential Information. Each Party agrees that during the Subscription Term and thereafter: (i) it will use Confidential Information belonging to the other Party solely for the purpose(s) of this Agreement; and (ii) it will take reasonable precautions, but no less than it would take to prevent the disclosure of its own similar Confidential Information, to ensure that it does not disclose Confidential Information belonging to the other Party to any third party (other than to its employees, contractors, and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the other Party’s written consent. Each Party will be responsible for any breach of this Section 5 by its employees, representatives, and agents. The terms of this Agreement are the Confidential Information of both Parties, but may be disclosed by either Party with its advisors and potential investors or acquirers who are subject to confidentiality obligations or to enforce its terms.
- Subscriber Content. Targetvision LLC acknowledges and agrees that the Subscriber Content (including but not limited to all content relating to Subscriber’s suppliers) is the Confidential Information of Subscriber and is therefore subject to the restrictions on disclosure and use set forth in Section 5.2(a) above. Notwithstanding the foregoing, Targetvision LLC may use Subscriber Data or other Confidential Information of Subscriber to (i) provide the Services to Subscriber as contemplated herein, (ii) monitor Subscriber’s and it Registered Users’ use of the Platform and the Services for security purposes, (iii) enforce the terms of this Agreement, and (iv) to improve and expand the features and functionality of the Platform and the Services for Subscriber and other Targetvision LLC customers (with Targetvision LLC’s right set forth in this clause (iv) surviving any expiration or termination of this Agreement).
- Required Disclosures. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Party disclosing such Confidential Information gives prompt notice to the other Party of any such order and reasonably cooperates with the other Party at the other Party’s request and expense to resist such order or to obtain a protective order.
- Targetvision LLC warrants to Subscriber that the Platform shall perform substantially in accordance with the Documentation. Targetvision LLC’s sole obligation, and Subscriber’s sole remedy, with respect to any breach of this limited warranty of performance shall be for Targetvision LLC to correct such nonconformance, or, if Targetvision LLC is unable to do so in a timely manner, refund to Subscriber actual damages up to a limit of the Subscription Fees paid for the period during which the breach of warranty occurred.
- Except for the warranty set forth in Section 6.1 above, Targetvision LLC makes no representation or warranty whatsoever, and hereby disclaims all representations and warranties, with respect to the Platform and the Services (in each case whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise), including any warranty (a) of merchantability, fitness for a particular purpose, or noninfringement, (b) that the Platform or the Services will meet Subscriber’s requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error, (c) as to the results that may be obtained from the use of the Platform or the Services, or (d) as to the accuracy or reliability of any information obtained from the Platform or the Services.
- Targetvision LLC shall in no event be liable for any indirect, special, incidental, exemplary, punitive or consequential damages or expenses (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS OR LOST SAVINGS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY), UNDER STATUTE OR OTHERWISE arising out of or in connection with the use or performance of the Platform or the Services, whether or not Targetvision LLC has been made aware of the possibility of such damages, including but not limited to any damages resulting from loss of data or content or lost profits.
- Targetvision LLC’s liability for damages to subscriber for any claims whatsoever, and for all claims in the aggregate, regardless of the form of any claim or action, shall not exceed the Subscription Fees paid under this Agreement during the twelve (12) month period prior to when the most recent claim arose.
- Subscriber acknowledges and agrees that the Subscription Fees and other fees under this Agreement have been agreed by Targetvision LLC in reliance on limitations of liability and disclaimers of warranty set forth in Sections 6.2, 6.3 and 6.4 above and that these provisions are an essential term of this Agreement.
- Annulment for Improper Use. Any use of the Platform or the Platform Services in contravention with the terms of this Agreement or the Documentation may annul the warranty set forth in Section 6.1
- Assignment. Targetvision LLC may transfer or assign its interests and obligations under this Agreement to a third party without the consent of Subscriber. In the event of an assignment, Service Provider shall provide reasonable notice to Subscriber. If Subscriber continues the Agreement with the assignee, Subscriber will release and hold Service Provider harmless from any liability thereafter
- Targetvision LLC shall defend, indemnify, and hold harmless Subscriber and its officers, directors, employees, and shareholders from and against any and all any damages, penalties, judgments and reasonable related costs and expenses, including but not limited to reasonable legal fees and expenses, (“Damages”) arising out of any third party claim or allegation (a “Claim”) that Subscriber’s use or access of the Platform or the Platform Services in accordance with the terms of this Agreement infringes the patent, copyright or other intellectual property right of any third party, except to the extent: (a) due to any Subscriber Content or specific materials that Subscriber uses or uploads into the Platform; or (b) such claim is based on Subscriber’s unauthorized or unlawful use of the Platform or the Platform Services (i) in combination with other services and products not supplied by Targetvision LLC and not required by the Documentation or (ii) in contravention of the Documentation or Targetvision LLC’s express written directions.
- Subscriber shall defend, indemnify and hold harmless Service Provider and its officers, directors, employees, and shareholders from and against any third party claims, demands, loss, damage or expense relating to or resulting from 1) a breach of any promise, representation or warranty under this Agreement, 2) bodily injury or death or damage to property related to the operation of the equipment subject to this Agreement, and 3) any willful or negligent act or omission of Subscriber.
- If Subscriber or Targetvision LLC intends to claim indemnification hereunder (for itself or for another indemnitee) with respect to any Damages arising under a Claim, then Subscriber or Targetvision LLC (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) of any Claim in respect of which the Indemnified Party (whether for itself or for one of the persons entitled to indemnification under Section 7.1 or 7.2) intends to claim such indemnification reasonably promptly after the Indemnified Party is aware thereof, and the Indemnifying Party shall assume the defense of any related third party action, suit or proceeding with counsel of the Indemnifying Party’s choice. The indemnity agreement in this Section 7 shall not apply to amounts paid in settlement of any claim, loss, damage or expense if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld or delayed unreasonably. The failure of the Indemnified Party to deliver notice to the Indemnifying Party within a reasonable time after the Indemnified Party becomes aware of any such matter, if prejudicial to Indemnifying Party’s ability to defend such action, shall relieve the Indemnifying Party of any liability under this Section 7 with respect to such Claim. The Indemnified Party and all indemnitees shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation of any matter covered by this indemnification.
- Should the Platform or the Platform Services become, or in Targetvision LLC’s opinion, be likely to become the subject of a claim or an injunction preventing its use as contemplated herein, Targetvision LLC may, at its option (a) procure for Subscriber the right to continue to access the Platform or the Platform Services hereunder, (b) replace or modify the Platform or the Platform Services so that it becomes non-infringing, or, if Targetvision LLC determines, in its sole discretion, that (a) and (b) are not commercially practical for Targetvision LLC, then (c) Targetvision LLC may terminate this Agreement and refund to Subscriber a pro-rated amount of the Subscription Fees paid in advance, if any.
- This Section 7 states the entire liability of Targetvision LLC with respect to infringement of third-party intellectual property rights by the Platform Services or Platform or any part thereof or by its operation.
- Entire Agreement. This Agreement (which includes the Order Form, the Platform Description, and the Subscription Terms and Conditions) constitutes the entire agreement between Targetvision LLC and Subscriber with respect to the subject matter hereof. No addendum, waiver, consent, modification, amendment or change of the terms of this Agreement shall bind either Party unless in writing and signed by duly authorized officers of Subscriber and Targetvision LLC.
- In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular provisions held to be unenforceable.
- Subscriber shall not assign (including but not limited to by operation of law) this Agreement or any of its rights, obligations or subscriptions granted hereunder without Targetvision LLC’s prior written consent, which shall not unreasonably be withheld, except that Subscriber may assign this Agreement to a successor to its business in connection with a merger or sale of all or substantially all of its assets. This Agreement shall inure to the benefit of the Parties and their permitted successors and assigns.
- Any notices required under this Agreement may be effectively transmitted to the other party by: 1) certified mail with return receipt, 2) express delivery from a nationally recognized courier, 3) personal delivery to the office of the other party, and 4) email delivery to an address that has been part of regular communications between the parties.
- Governing Law; Dispute Resolution. This Agreement shall be construed and governed according to the laws of the State of Texas. The provisions of any conflict-of-laws provisions that would require application of another choice of law, are excluded. In the event of any dispute arising from or relating to the Agreement, the parties hereto shall initially use their best efforts to amicably settle the dispute. To this effect, they shall consult and negotiate with each other in good faith and attempt to reach a mutually satisfactory solution. Upon notice by either party to the other, all disputes, claims, questions, or differences regarding the Agreement, or any other matter between the parties, will be finally resolved by binding arbitration, conducted in the English language using a single arbitrator. Unless otherwise agreed by Service Provider: (1) it will be conducted under the Commercial Arbitration Rules of the American Arbitration Association (AAA) in force as of the date of the request for arbitration, which rules are deemed to be incorporated by reference into this Agreement; (2) the arbitration will be conducted at Service Provider’s main offices in Pearland, TX; (3) the arbitrator will be selected from a list using the recommended selection method under the rules applicable to the arbitration proceeding; (4) the arbitrator's award shall include costs, reasonable attorney’s fees and interest to the substantially prevailing party, but in no event will any party be awarded penal, punitive or exemplary damages; and (5) the award of the arbitrator will be enforceable in any court of competent jurisdiction.
- No Waiver. The waiver by either Party of a breach of a default of any provision of this Agreement by the other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such Party.
- Section Headings. Captions and section headings hereof are for reference purposes only and shall not control or alter the meaning of this Agreement as set forth in the text.
- Force Majeure. Neither party shall be considered to be in breach of this Agreement to the extent that their performance is prevented due to circumstances beyond its reasonable control (including but not limited to flood, fire, earthquakes or other acts of God, accidents, riots, wars, acts of terrorism, operation of law, government regulations or requirements, strikes, labor difficulties, shortages of fuel, power, materials or supplies, or unavailability of transportation).