TERMS OF SERVICE

1). DEFINITIONS AND INTERPRETATION

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• 1.1) The definitions and rules of interpretation in this clause apply in this Agreement.
  
  Affiliate: any entity directly or indirectly controlling or controlled by or under direct or indirect common control with another entity; and “control” means the beneficial ownership of more than 50% of the issued share capital or the legal power to direct or cause the direction of the general management of the company, partnership or other entity in question (including the right to appoint or remove the majority of the board of directors of the company).
  
  Agreement: the Quote or a Services Agreement signed by Evercam and Customer, together with these Terms of Service and any ancillary agreements or documents referred to or incorporated by reference herein.
  
  Authorised Users: those employees, contractors, subcontractors, agents who are authorised by Customer to use the Services.
  
  Customer:  the customer entity executing the Agreement.
  
  Customer Data: the information and data supplied by Customer and its Authorised Users for the purpose of using the Services during the Term, together with the audio and visual recordings captured by the Hardware.
  
  Confidential Information: means any information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by either party to the other party whether before, on or after the date of this Agreement which ought reasonably to be regarded as confidential including, without limitation, information relating to the disclosing party’s products, services, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities, business and financial affairs or other materials and information of a confidential nature.
  
  DPA: the Data Processing Agreement agreed between the parties and available at [INSERT HYPERLINK].
  
  Data Protection Laws: all applicable laws, regulations and binding regulatory requirements relating to the protection, privacy, security or processing of Personal Data, including, where applicable, the EU General Data Protection Regulation (EU) 2016/679 (“GDPR”), the UK GDPR, the California Consumer Privacy Act (as amended by the California Privacy Rights Act), and any similar or successor legislation, in each case as amended or replaced from time to time.  
  
  Effective Date: the effective date of the Agreement, as set out in a Quote or Services Agreement.
  
  “Evercam Software Service(s)” means the specific edition of Evercam’s reality capture software and the services provided via the Platform as developed, operated, and maintained by Evercam.
  
  “Evercam Technology” means all of Evercam’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) and all Intellectual Property Rights relating thereto and made available to the Customer by Evercam in providing the Services, including but not limited to the Platform and Services.
  
  Fees: the fees for the Services and Hardware as set out in a Quote or Services Agreement.
  
  Force Majeure Event: has the meaning in clause 17.
  
  Gate Report: A digital log that uses ANPR camera and computer vision to record all vehicle movement to and from the site. The report includes timestamps, vehicle classifications, and license plate data with associated visual evidence.
  
  Hardware: the camera(s) used for recording visual images, video signals and capturing any other data, together with the accompanying kit including router, SBC, SIM card and HDD, all of which may be supplied by Evercam to Customer and as set out in detail in any agreed Quote or Service Agreements.
  
  Initial Term: the initial term of this Agreement as set out in a Quote or Services Agreement.
  
  Installation Services: means services relating to the initial installation on the project site, if agreed between the parties in a Quote or Services Agreement. 
  
  Intellectual Property Rights: any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, trade dress, trade secrets, patentable rights, copyright, design  rights, utility models, trademarks (whether or not any of the above are registered), trade or business names, goodwill, rights in domain names, rights in inventions, rights in data, moral rights, database rights, rights in know-how and confidential information, and any other intellectual property rights that subsist in computer software, computer programs, websites, hardware, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites source code and all intellectual property rights concerning a technology application, and all other intellectual and industrial property and  similar or analogous rights existing under the laws of any country and all pending  applications for and right to apply for or register the same (present, future and contingent,  and including all renewals, extensions, revivals and all accrued rights of action).
  
  Quote(s): the form(s) signed by Customer confirming the order for the Services subject to these Terms of Service. 
  
  Platform: Evercam’s proprietary software platform for providing the Services to the Customer via the internet and accessible via cloud, evercam.io or another designated web site or IP address under the terms of this Agreement, together with any and all customisations, developments, modifications, Upgrades and Updates to the Platform. Reference to “Software” as used in any Services Agreement or Quote shall have the same meaning. 
  
  Professional Services: professional services to be provided by Evercam in accordance with an agreed Quote or Services Agreement.
  
  Project Data: the full recording of the Customer’s construction project including but not limited to any BIM and 3D models, drone flights, 360 capture as may be uploaded onto the Platform during the Term.
  
  Project Site: the Customer’s site location indicated on the Quote(s) or Services Agreement.
  
  Renewal Term: the renewal period(s) described in the Quote(s) or Services Agreement.
  
  Services: supply of the Hardware, Installation Services, Evercam Software Services, any other ancillary online or offline products and services provided to the Customer by Evercam, and all other additional services provided by Evercam to the Customer as more particularly described in a Quote or Services Agreement.
  
  Services Agreement: a services agreement signed by the parties setting out the Services to be provided to the Customer and incorporating these Terms of Service.
  
  Service Level Agreement or SLA: the service level agreement available at [INSERT HYPERLINK].
  
  Term: the Initial Term together with any subsequent Renewal Term(s).
  
  Third Party Products: any third-party product, subscription service, software platform or program other than the Platform and the Service.
  
  Update: means bug fixes, patches, or minor version updates to the Platform and features that are already part of Customer’s current subscription; 
  
  Upgrade: a major version upgrade to the Platform to include new functionality, modules, or features that are not part of Customer’s existing subscription.
  
  User Documentation: the operating manuals, user instructions, technical literature and all other related materials and documentation located online or provided by Evercam to Customer in respect of the Platform and Services.
  
  Virus: any software, code, file, program or device designed to prevent, impair or otherwise adversely affect the operation, security or integrity of any software, hardware, network, telecommunications system, service, program or data, including worms, ransomware, trojan horses, viruses or similar malicious code.

• 1.2) Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. References to a clause, section, schedule, exhibit or appendix is to a clause, section, schedule, exhibit or appendix of this Agreement unless the context requires otherwise. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. Reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes email. 

• 1.3) In the event, and to the extent only, of any conflict between the terms of any Quote or Services Agreement and any terms in this Terms of Service, the terms of the Quote or Services Agreement shall prevail.

2). SERVICES

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• 2.1) Subject to the terms and conditions of this Agreement and the payment of all Fees, Evercam hereby grants to Customer a non-exclusive, worldwide, non-transferable right, without the right to grant sublicences, of access to and use of (and to permit the Authorised Users to access and use) the Services during the Term. All rights not expressly granted to the Customer are reserved by Evercam.

• 2.2) Customer must designate an Authorised User as a project owner/data controller with control over Customer’s service account, including management of Authorised Users and Customer Data. Customer is fully responsible for its choice of project owner/data controller and any actions they take. Customer agrees that Evercam’s responsibilities do not extend to the internal management or administration of the Services for Customer.

• 2.3) Each Authorised User must create and use unique access credentials, which may not be shared or used by more than one Authorised User. Customer shall ensure its Authorised Users do not share their access credentials with any other person or permit any other person to access the Services and shall be responsible for any unauthorized usage that occurs due to misuse of its log-in credentials.

• 2.4) Professional Video Requests. Timelapse pro videos and other special video requests must be submitted to Evercam using Evercam’s designated request form on its Platform. Each video includes up to two (2) editorial revision rounds following delivery of the initial draft. Additional revisions or requests outside the agreed scope may incur extra charges at Evercam’s standard service rates.

• 2.5) Customer shall cooperate with Evercam in all matters relating to the Services and will give Evercam timely access to any Customer Data, site, materials and systems reasonably necessary for Evercam to provide the Services, and if Customer fails to do so, Evercam’s obligation to provide the Services will be excused until access is provided. 

• 2.6) Affiliates of Customer may procure Services from Evercam under the terms and conditions of this Agreement, provided that each such Affiliate enters into a Quote for such Services, referencing this Agreement.  Any Affiliate that enters into such Quote with Evercam will be deemed to be “Customer” hereunder, provided that such Quote together with these Terms of Service will constitute a separate contract with such Affiliate.

• 2.7) This Agreement includes all Updates and improvements to the existing features of the Platform that are made generally available by Evercam as part of its standard subscription offering. This Agreement does not automatically include any Upgrades. Access to such Upgrades requires a separate written Quote and will be subject to additional Fees.

• 2.8) Both parties understand that Beta Products (including but not limited to Smart Search, Co-Pilot, PPE Detection) are subject to change throughout the Term of this Agreement. Beta Products are provided for early access and evaluation purposes only and may be subject to ongoing changes in functionality, availability, fair usage, or applicable fees, at Evercam’s sole and absolute discretion. Evercam does not guarantee performance or continuity of any Beta Products, which may evolve, be replaced, or discontinued at any time. “Beta Product” means a pre-release version of a product or feature that is tested by a limited, external audience (real users) in a real-world environment to find bugs, assess usability, and gather final feedback before the official launch.

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3). HARDWARE AND DELIVERY 

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• 3.1) All Hardware shall be delivered to Customer’s Project Site unless otherwise agreed in advance. Evercam shall use reasonable efforts to meet any stated delivery date but shall not be liable (in contract, negligence or otherwise) for any loss or damage resulting from its failure to do so, howsoever caused. Unless otherwise expressly agreed, Evercam may make delivery in one or more instalments.

• 3.2) Hardware shall be delivered by registered courier to the Project Site address. Risk in the Hardware shall pass to Customer upon delivery to that address. Title to the Hardware shall pass upon receipt of full payment of all amounts due in respect of the Hardware. Delivery shall be deemed to occur upon signature/receipt by Customer or its authorised representative at the delivery address. After delivery, Evercam shall not be liable for loss of or damage to the Hardware except to the extent caused by its negligence. Any costs arising from delivery requirements outside the agreed scope, including customs duties, clearance charges, engineering assessments, relocation or site modification costs, shall be borne by Customer, provided that such costs have been notified to Customer in advance where reasonably practicable.

• 3.3) Customer data is securely stored on cloud servers and physical hard drives. The maximum disk storage space is one year from the camera go-live date. Once the project extends beyond this period, the Customer can purchase and install a replacement hard drive at their own expense or allow the existing storage device to continue operating, with older data being overwritten on a first-in, first-out basis. Evercam reserves the right to establish or modify its general practices and limits relating to storage of files and Customer Data.

• 3.4) Evercam will store all Project Data for ninety (90) days following project completion. After this period, Customer may extend data storage at an additional cost, with several options available based on data retention levels and pricing. If Customer does not select a paid storage option within the 90-day timeframe, the storage will default to the free "Minimal" option, which results in the deletion of most Project Data. 

• 3.5) Upon full settlement of all amounts due and owing under this Agreement, Evercam will transfer Customer Data upon request. Any costs associated with the data transfer will be communicated and agreed upon with the Customer before the transfer is completed. Evercam is not obligated to store data for any Customer that has materially or persistently breached this Agreement.

• 3.6) Any warranties provided for the Hardware are those issued by the manufacturer of same. Evercam is not liable for any hardware failure occurring outside the warranty period or conditions set by the manufacturer of any such Hardware, in accordance with the provisions of clause 10.

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4). INSTALLATION 

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• 4.1) Customer shall allocate personnel with the sufficient time, resources and permissions to ensure the successful installation and operation of the Hardware and access to the Platform. Additionally, the Customer will appoint a designated on-site representative for each Project Site at which the Services are being provided, who will oversee and liaise with Evercam on the successful installation, operation and maintenance of the Hardware at such site. 

• 4.2) Communication with any third party for setup or operational purposes remains the responsibility of Customer. Any Customer-nominated representatives are assumed to have the necessary authority and competence to manage the installation and operation of the Hardware and access to the Platform.

• 4.3) Where Evercam provides Installation Services, the Customer will ensure that the Hardware mounting locations have safe and unobstructed access, have suitable power availability and that all necessary consents, permits, and third-party approvals have been obtained in advance. Additional charges may apply for unforeseen circumstances, including, but not limited to, required union labor, induction training, site access delays or restrictions that extend installation or maintenance work. These costs will be passed on to the Customer. The Customer will inform Evercam in advance of any known labor requirements or site access constraints. Failure to do so may result in scheduling delays and additional fees. Unless otherwise agreed in writing, any and all equipment required for site activities (including, but not limited to, lifts or MEWPs, forklifts) is not included in the quoted price. The Customer is solely responsible for the associated cost, coordination, and timely availability. If equipment is procured by Evercam, at the request of the Customer, additional charges will apply. An installation date will be agreed with Customer and the installation shall be performed by Evercam or a third party engaged by Evercam. The full installation fee will be payable in the event Customer provides less than 24 hours’ notice to cancel/reschedule installation.

• 4.4) Where Customer elects to undertake installation of the Hardware itself (“Self-Installation”), Evercam shall supply the Hardware together with installation instructions (confirmation of the field of view) and reasonable remote support documentation.  Delivery of the Hardware to the Customer Project Site shall constitute completion of Evercam’s installation obligations for the purposes of the Agreement. Customer shall be solely responsible for: (i) installation, mounting, wiring, and commissioning of the Hardware; (ii) ensuring compliance with all applicable laws, site rules and safety requirements; (iii) ensuring installation is carried out by suitably qualified and competent personnel; and (iv) any loss, damage, malfunction or reduced performance arising from incorrect or incomplete installation.

• 4.5) Evercam shall have no liability for any failure of the Hardware or the Platform to operate in accordance with this Agreement to the extent caused by Customer’s improper Self Installation, or due to site conditions. If Evercam is subsequently requested to attend on site or provide remedial services as a result of Self-Installation, such services shall be chargeable at Evercam’s then-current rates.

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5). ON SITE REQUIREMENTS

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• 5.1) The Customer will ensure a stable and reliable power supply to the Hardware, either from mains electricity or a generator connection. If a generator is used, Evercam and the Customer will mutually agree upon a power schedule in order to ensure the Hardware can operate and Services can be provided (the “Power Schedule”). The Customer is solely responsible for ensuring that the generator power source supports the agreed schedule. In the case of solar-powered Hardware, the Hardware will function to a maximum 12-hour schedule subject to adequate environmental conditions (inclement weather, limited sunlight and geographic location may impact performance versus power schedule). The Customer will ensure that the solar panels and batteries remain undamaged and are not moved without prior consultation with Evercam. Additionally, the Customer will ensure that the solar panels are free from debris, dust, and obstruction. The Customer accepts these limitations and agrees that performance outside of the specified schedule does not constitute a defect or failure in hardware. If any Hardware recording capabilities are limited due to weather or other conditions on-site, intervention may be required from the Customer or from Evercam to ensure operability and shall be carried out at the Customer's expense.

• 5.2) Evercam recommends a stable VAC (main electrical) power source for reliable camera performance. Alternative power sources, such as solar or generators, introduce reliability risks that may impact uptime, service continuity, and potentially void hardware warranties due to inconsistent power supply.

• 5.3) Customer will promptly inform Evercam of any on-site changes that may impact the performance of the Hardware and Services, or obstruct the field of view of the Hardware. Customer will not tamper with or move the Hardware without prior notification to Evercam. Reasonable measures shall be taken by the Customer to prevent accidental or intentional interference with the Hardware. Any such incidents may compromise the Platform’s functionality, requiring on-site intervention from Customer or from Evercam to ensure operability and shall be carried out at the Customer's expense.

• 5.4) Prior to the calibration of a Gate Report the Customer and Evercam will mutually agree upon the Gate Report camera's position, configuration and field of view. Any alterations to these agreed-upon parameters may compromise the Gate Report camera's functionality, requiring on-site intervention from the Customer or from Evercam to ensure operability and shall be carried out at the Customer's expense.

• 5.5) Where the building information modeling (“BIM”) integration functionality of the Platform is enabled for the Customer’s use, the Customer shall provide accurate and up-to-date BIM models and is responsible for ensuring such models are compatible with the Platform. Evercam will configure and align the BIM model within the Platform but is not responsible for the accuracy of the model or any subsequent changes made by Customer. Changes to these BIM models or camera repositioning may disrupt BIM model functionality, necessitating model re-alignment or on-site intervention by either the Customer or from Evercam to ensure operability and shall be performed at Customer’s expense and charged at Evercam’s then-current service rates.

• 5.6) Where any Hardware is hosted by, at or on a third-party building, Evercam does not guarantee continuous physical hosting of any such Hardware, and delays may occur if access to the third-party host building is required to resolve any issues with such Hardware. Evercam is not responsible for any interruptions in a third party building’s hosting any such Hardware or delays in accessing the host building, and disclaims responsibility for any consequences of this reduced access (including but not limited to any disruption to the Services).

• 5.7) Evercam is not liable for offline events, damage to Hardware, or site visit requirements resulting from Force Majeure Events. Unless otherwise agreed, the Customer is responsible for monitoring camera uptime and notifying Evercam of any issues. In the event of an uptime issue, the Customer must submit a service ticket at support@evercam.io to request troubleshooting assistance in accordance with the SLA. 

• 5.8) Where the Services include 360 Capture the following terms shall apply. To activate Customer’s project for the first 360 Capture, the Customer must upload to the Platform (directly via Evercam dashboard or Capture App) the site address, floor/site plan(s) (mini-map), and any relevant model files (if applicable). Uploaded plans are available immediately when recording a Walk (360 Capture). The processing workflow is triggered automatically upon upload, and the 360 Viewer will be enabled and available for use within twenty-four (24) business hours of the project’s first successful 360 Capture upload.

• 5.9) Drone and 360 uploads processed via the Platform shall be completed within twenty-four (24) business hours. Processing starts only after a complete, uncorrupted dataset is received. Manual uploads require forty-eight (48) business hours and are not guaranteed, if file formats or capture settings deviate from published Evercam guidelines. Reprocessing necessitated by plan amendments or other adjustments requires up to five (5) business days, contingent upon current queue volume. Reprocessing that requires retrospective data modification may extend up to five (5) business days and is subject to a standard processing fee. 

• 5.10) Customer is solely responsible for the procurement and management of compatible hardware. Evercam will not manage, insure, or maintain hardware for 360 Capture and drone services in any capacity. Customer assumes sole responsibility for all processes pertaining to data acquisition, including the utilization of drone and 360 Capture methodologies. These responsibilities extend to ensuring the data's integrity, format compliance, and delivery.

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6). CLIENT’S OBLIGATIONS

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• 6.1) Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Evercam. Customer shall be responsible for the acts and omissions of its Affiliates and Authorised Users who access the Services, as though they were the acts and omissions of Customer. Customer agrees to indemnify and hold harmless Evercam, its Affiliates and subcontractors against any claims, costs, losses, damages, liabilities or expenses arising from the acts or omissions of its Affiliates and Authorised Users.

• 6.2) Customer shall not during the course of its use of the Services access, store, distribute or transmit any Viruses, or any material that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or depicts sexually explicit images; or (ii) facilitates illegal activity, promotes unlawful violence; or (iii) is discriminatory or otherwise illegal or causes damage or injury to any person or property; (iv) contains any unsolicited or unauthorized advertising, promotional or marketing materials; or (v) encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation.

• 6.3) Customer shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Services; (iii) access all or any part of the Services in order to build a product or service which competes with the Services; or (iv) work around any technical limitations in the Services.

• 6.4) Customer shall comply with all applicable laws and regulations with respect to its activities under this Agreement.

• 6.5) Customer may not access the Services if Customer (or any Affiliate of Customer) is a competitor of Evercam (as may be identified by Evercam from time to time), except with Evercam’s prior written consent.

• 6.6) Customer acknowledges that it is solely responsible for ensuring that its use (and the use of its Authorised Users) of the Services do not infringe this clause 6. Without prejudice to Evercam’s other rights in law or equity, Evercam reserves the right, without liability to Customer, to suspend or disable Customer’s or any Authorised Users access to the Services where Customer or an Authorised User is in breach of the provisions of this clause 6 and fails to remedy such breach within ten (10) days of being notified by Evercam to do so, provided however that where such breach of same: (a) violates or may violate any applicable law; or (b) has or may have a material adverse impact on Evercam’s ability to provide the Services to its clients; or (c) impacts on the integrity and security of the Platform, then no remedy period shall be granted to Customer prior to Evercam exercising the suspension or disablement rights herein. Customer shall not thereby be entitled to claim any refund or compensation for such suspension or disablement and shall remain responsible for all Fees arising during any period of suspension. Evercam reserves the right to impose a reconnection fee in the event Customer remedies the breach and access to the Services is reinstated.

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7). FEES AND PAYMENT

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• 7.1) Evercam shall invoice Customer and Customer shall pay the Fees in accordance with the provisions of the relevant Quote or Services Agreement and this clause 7.

• 7.2) All Fees are non-cancellable and non-refundable unless stated elsewhere in the Agreement and are exclusive of all sales, use, value-added, withholding and other taxes, duties and tariffs which shall be added to Evercam's invoice(s) at the appropriate rate. Customer will pay all taxes and duties (including withholding tax) assessed in connection with this Agreement. Customer shall pay all Fees in full without set off or counterclaim.

• 7.3) All payments due under this Agreement shall be made by Customer either via direct debit or within 30 days of receipt of invoice, as set out in the Quote or Services Agreement. Where Customer is paying by direct debit, Customer agrees to provide and maintain valid and up-to-date direct debit instructions with the designated bank account for the duration of the Agreement. Payments shall be debited on the agreed date each month (or as otherwise specified) without the need for further action by Customer, and Customer acknowledges that failure to maintain valid direct debit details may result in delays or non-payment of amounts due. 

• 7.4) Customer shall be solely responsible for the payment of all fees, additional charges and costs associated with the provision of any Third-Party Products (“Third Party Fees”), unless such Third-Party Fees are agreed between the parties in writing in a Quote  and payment is made by Evercam as part of the Services.

• 7.5) Should the Services not be available by reason of an absence of power, connectivity or damage to the Hardware caused by the Customer or any third party, whether inadvertently or intentionally, the Fees will continue to accrue and be payable during such period when the Service is not available.

• 7.6) Should Customer have a bona fide dispute in respect of all or any part of any invoice(s) it will notify Evercam of the nature of that dispute in writing within ten (10) days of receipt of the invoice giving the relevant details. Following any such notice, Customer will be entitled to withhold payment of the amount in dispute without interest but will pay the undisputed amount(s) in accordance with this Agreement. The parties will cooperate in good faith to resolve any such dispute as amicably and promptly as possible and on settlement of the dispute Customer shall discharge all agreed amounts in accordance with the agreed payment terms.

• 7.7) If Evercam has not received payment of undisputed Fees within fifteen (15) days after the due date in accordance with the payment terms set out in the relevant Quote, and without prejudice to any other rights and remedies of Evercam, including but not limited to the removal of all Fee discounts applied in Quote, Evercam may subject to providing a further fifteen (15) days’ written notice, without liability to Customer, disable Customer’s password, account and suspend access to all or part of the Services and Evercam shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. In addition, interest shall accrue on a daily basis on such outstanding amounts at an annual rate equal to four (4) percentage points above the European Central Bank’s reference rate or if such rate shall exceed any applicable permissible legal interest rate, then at the highest legally permissible rate, commencing on the due date and continuing until fully paid, whether before or after judgment.

• 7.8) Evercam may increase the Fees at the end of the Initial Term and any Renewal Term by giving Customer not less than sixty (60) days’ notice with such notice to expire at the end of the Initial Term or Renewal Term as the case may be. During this notice period the Customer can either: (i) accept the increase in the Fees by continuing to avail of the Services; or (ii) reject the increase in Fees and issue a notice to Evercam of their intention to terminate this Agreement on the expiration of the Initial Term or Renewal Term, as the case may be.

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8). SUPPORT AND MAINTENANCE 

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• 8.1) Evercam shall use all reasonable endeavours to provide the Services in accordance with the Service Level Agreement. Customer may contact Evercam for support in relation to the Services by contacting support@evercam.io or otherwise in accordance with the SLA.

• 8.2) From time to time it may be necessary for Evercam to complete maintenance on the Evercam systems and Platform. If the maintenance is likely to result in unavailability of the Services then Evercam will endeavour to advise Customer in advance. Unscheduled maintenance in respect of a significant event may be required to be performed at any time without notice.

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9). WARRANTIES AND DISCLAIMERS

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• 9.1) Each party warrants that it has the full corporate power: (i) to enter into this Agreement; (ii) to carry out its obligations hereunder; and (iii) to grant the rights herein granted to the other party.

• 9.2) Customer warrants that Customer Data provided to Evercam by or on behalf of Customer: (i) is owned by Customer or provided with the express consent from the third party holding any ownership rights (including copyright) over such material, or, alternatively, are in the public domain, and is not owned by any third party or otherwise covered by copyright laws; (ii) does not breach the rights of any person or entity, including rights of publicity, privacy, or under applicable Data Protection Laws or direct marketing laws and are not defamatory; and (iii) does not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, breach of Intellectual Property Rights, injury, damage or harm of any kind to any person or entity.

• 9.3) Evercam warrants that: (i) the Services shall perform materially in accordance with the User Documentation; (ii) it shall perform all Services with due care, skill, and diligence, consistent with currently recognised applicable professional standards;  (iii) it shall obtain and maintain all necessary licenses, permits and consents as required to provide the Services; and (iv) it shall comply with all applicable laws relating to the Services.

• 9.4) Notwithstanding any other provision of this Agreement, Evercam shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (i) errors resulting from misuse, abuse, negligence, or improper use of all or any part of the Services or Hardware by the Customer or any of its Authorised Users; (ii) problems with or caused by products or services not provided by Evercam; (iii) any modification, amendment, revision, or change to the Services or Hardware by any party other than Evercam or its authorised representatives; or (iv) failures relating to Customer’s premises and/or information technology environment including, but not limited to, electrical failure, Internet connection problems, or data or data input, output, integrity, storage, back-up, and other external and/or infrastructure problems, which shall be deemed under Customer’s exclusive control and sole responsibility, except to the extent caused by any Services failing to perform in accordance with their specifications or documentation.

• 9.5) Other than with respect to the express warranties set forth herein, the Services are provided “as is” and all warranties express or implied, representations, conditions and all other terms of any kind whatsoever implied by statute or common law, including those of non-infringement, merchantability and fitness for a particular purpose, all are, to the fullest extent permitted by applicable law, hereby disclaimed and excluded by Evercam from this Agreement. Customer is solely responsible for determining the suitability of the Services for its use in light of any applicable legislation or regulations including without limitation Data Protection Laws. 

• 9.6) Notwithstanding any other provision in this Agreement, Evercam does not warrant that Customer’s use of the Services will be uninterrupted or error-free or that the Services will operate in combination with third party services used by Customer save where otherwise agreed. The Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. Evercam is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities which are part of Customer’s system. In relation to the Services, Evercam is not responsible for any inaccuracies or errors arising as a result of incorrect data provided by Customer or data provided by any third party which does not conform to required input formats which are notified in writing by Evercam to Customer or as advised in the User Documentation.

• 9.7) Customer is solely responsible for providing and maintaining valid API credentials, access tokens, and permissions for all connected systems throughout the Term. Evercam supports standard integrations only, any custom work or third-party middleware may incur additional Fees. Customer is responsible for alerting Evercam to any access changes. 

• 9.8) Customer may choose to use the Services with third-party platforms. Use of third-party platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Evercam makes no representation or commitment, does not control and has no liability for, third-party platforms, including their security, functionality, operation, availability or interoperability or how the third-party platforms or their providers use Customer Data. If Customer enables a third-party platform with the Services, Evercam may access and exchange Customer Data with the third-party platform on Customer’s behalf.

10). HARDWARE WARRANTY AND REMEDY

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• 10.1) Subject to clause 10.2, Evercam warrants that the Hardware shall be free from defects in materials and workmanship during the first twelve (12) months from the date of purchase of the Hardware (“Warranty Period”). If Customer gives notice in writing during the Warranty Period that some or all of the Hardware does not comply with these warranties, and Evercam is given a reasonable opportunity of examining the Hardware if required, Evercam shall as Customer’s sole and exclusive remedy promptly repair (either remotely or on site) or replace the defective Hardware.

• 10.2) Evercam shall not be liable in respect of any defective Hardware warranties to the extent that such defect is caused by:
  
  • 10.2.1) damage caused through normal wear and tear, misuse, neglect or abnormal usage or storage, environmental factors or physical damage caused to the surface of the Hardware (except damage caused by Evercam or its employees, agents or contractors);
  • 10.2.2) Customer failing to follow Evercam’s written instructions as to the storage, installation, commissioning, use or maintenance of the Hardware or (if there are none) good trade practice;
  • 10.2.3) Customer altering or repairing such Hardware without the written consent of Evercam; and
  • 10.2.4) Customer losing its access to the Platform due to non-compliance with this Agreement.
• 10.3) Evercam shall not be liable to Customer for any act, or failure on the part of any third party upon whom, the parties rely for the performance of this agreement (except Evercam’s employees, agents and contractors). Evercam disclaims any guarantee for the security of any wireless network used for the transmission of data and information from the Hardware. For the avoidance of doubt, relocating hardware to a new site does not restart the Warranty Period.

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11). DATA

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• 11.1) In providing its Services under this Agreement, Evercam may be required to process personal data on Customer’s behalf. In such circumstances, the parties record their intention that Customer and its Affiliates (as applicable) shall be the controller and Evercam shall be a processor and each party shall comply with Data Protection Laws and the DPA.

• 11.2) Evercam may generate and collect certain statistical or operational information relating to the use, operation and performance of the Services, the Hardware, access usage, storage usage and use of features and functionality (the “Usage Data”). Such Usage Data may be used by Evercam for its business purposes, including to improve the Platform and Services, develop new products or services and may also be used by Evercam’s artificial intelligence and machine learning software to provide enhanced and improved Services. Evercam covenants that no Customer Confidential Information or Personal Data shall be included in the Usage Data.

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12). INTELLECTUAL PROPERTY RIGHTS

• 12.1) Customer hereby agrees that Evercam alone (and/or its licensors, where applicable) owns all right, title and interest, including all Intellectual Property Rights, in and to the Services, including but not limited to the Platform and Evercam Technology, including any modifications or enhancements thereto, and all of Evercam’s Confidential Information or any other Intellectual Property Rights created or developed by Evercam and/or its Affiliates together with all Intellectual Property Rights arising out of or in connection with the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer or any other party relating to the Services. Except as expressly stated herein, this Agreement does not grant Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services and Platform.

• 12.2) All Customer Data shall be and remain the property of Customer, and/or its licensors, as the case may be. Customer shall own all right, title and interest in and to all of Customer Data and shall have sole responsibility and liability for the legality, reliability, integrity, accuracy and quality of all such Customer Data. Customer hereby grants Evercam a royalty-free, non-exclusive licence to use the Customer Data for the Term of this Agreement solely for the purposes of carrying out its obligations under this Agreement.

• 12.3) Without prejudice to clause 12.2, Evercam agrees that it has no ownership of any Intellectual Property Rights in all recordings, imagery or data the Services may capture on the Hardware, and that Evercam will never exploit it, share it or use it, save solely to the extent required to provide the Services. 

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13). INDEMNITY

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• 13.1) Evercam shall indemnify Customer and its officers, employees, agents and subcontractors in respect of any and all third party claims, suits, demands and actions and for resulting damages, awards of damages, losses, costs, expenses and liabilities (including reasonable legal fees) to the extent arising out of claims by third parties that the Services infringes a third-party’s copyright, trademark existing or patent granted as of the date of delivery in any country in which the Services are delivered. If Services are or are likely to be held to be infringing, Evercam will at its expense and option either: (i) procure the right for Customer to continue using it, (ii) replace it with a non-infringing equivalent, (iii) modify it to make it non-infringing, or (iv) terminate this Agreement and refund to Customer prepaid Fees on a pro-rata basis for any unused portion of the Services.

• 13.2) Notwithstanding the above, Evercam shall have no liability to Customer to the extent that any claim is based upon: (i) modifications to the Services made by anyone other than Evercam or a party authorised by Evercam; (ii) combination of the Services with software not provided by Evercam or specified in any agreed documentation; (iii) Customer’s failure to use modifications to the Services provided by Evercam to avoid infringement or misappropriation; or (iv)  Customer or its Authorised User’s unauthorised use or misuse of the Services or breach of applicable laws. 

• 13.3) The rights granted to Customer under Clause 13.1 shall be Customer’s sole and exclusive remedy and Evercam’s entire liability for any alleged or actual infringement of Intellectual Property Rights of any third party. 

• 13.4) Customer shall defend indemnify Evercam and its officers, employees, agents and subcontractors from and against all claims, demands, damages, awards of damages, losses, costs, expenses and liabilities (including reasonable legal fees) that result or arise in connection with: (i) Customer or its Authorised User’s unauthorised use of the Services in breach of clause 6; (ii) Customer or its Authorised User’s infringement or violation of Evercam’s Intellectual Property Rights; (iii) Customer or its Authorised User’s breach of applicable law including Data Protection Laws; and (iv) any actions carried out by Evercam’s personnel or subcontractors at the Project Site at the direction or instruction of the Customer.

• 13.5) The indemnities set forth in this Agreement are conditioned on the following: (i) the party claiming indemnification (the “Indemnitee”) shall promptly notify the indemnifying party (the “Indemnitor”) of any matters in respect of which it seeks to be indemnified, and shall give the Indemnitor full cooperation and opportunity to control the response thereto and the defense thereof, including without limitation any settlement thereof (provided that the Indemnitor will not enter into any settlement of such claim without the prior approval of the Indemnitee, which approval will not be unreasonably withheld); (ii) the Indemnitor shall have no obligation for any claim under this Agreement if the Indemnitee makes any admission, settlement or other communication regarding such claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld; and (iii) the Indemnitee’s failure to promptly give notice to the Indemnitor shall affect the Indemnitor’s obligation to indemnify the Indemnitee only to the extent the Indemnitor’s rights are materially prejudiced by such failure. The Indemnitee may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice. 

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14). LIMITATION OF LIABILITY

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• 14.1) Nothing in this Agreement limits or excludes liability of either party in respect of any claims for death or personal injury caused by negligence, fraud or any other liability which cannot be excluded or limited by law.

• 14.2) To the maximum extent permitted by applicable law, Evercam will not have any liability to Customer for any loss of profits, loss of business, loss of revenue, loss of data, business interruption, reputational damage, or for any indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not Evercam has been advised of the possibility of such.

• 14.3) Subject to clauses 14.1 and 14.2, to the maximum extent permitted by applicable law, Evercam’s total aggregate liability arising out of or related to this Agreement or the Services under any theory of law (including liability for negligence or breach of statutory duty or an indemnity claim) to Customer and its Affiliates shall not exceed the total amount of the Fees paid by Customer in the twelve months immediately preceding the event giving rise to the claim.

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15). TERM AND TERMINATION

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• 15.1) This Agreement shall commence on the Effective Date and shall, unless earlier terminated in accordance with this Agreement, continue for the Initial Term set forth on the Quote. Where the parties have entered into a Services Agreement, that Services Agreement shall govern the overall relationship between the parties and shall remain in force while one or more Quotes are active. Each Quote shall specify the applicable Quote Initial Term for the Services provided under that Quote.

• 15.2) Unless otherwise stated in the applicable Quote or Services Agreement, the Services provided under a Quote shall automatically renew for successive periods of twelve (12) months (each a “Renewal Term”) following expiry of the Quote Initial Term specified in that Quote, unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current Quote Initial Term or Renewal Term. The Initial Term together with any subsequent Renewal Terms shall constitute the Term. Each Quote shall renew (where renewal is agreed or occurs automatically) independently and such renewal shall apply only to the Services described in that Quote. The renewal or expiry of any individual Quote shall not affect the validity or continuation of this Agreement or any other Quote entered into under it. Termination or expiry of this Agreement shall automatically terminate all Quotes then in effect unless otherwise agreed in writing by the parties. Termination or expiry of a Quote shall affect only the Services provided under that Quote and shall not terminate this Agreement or any other Quote.

• 15.3) Evercam may immediately terminate this Agreement by notice in writing to Customer if Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment.

• 15.4) Either party shall be entitled, without prejudice to the rights and remedies otherwise available under this Agreement or by law, to terminate the Agreement on written notice in the event of:
  
  • 15.4.1) a material breach of this Agreement by the other party which, if capable of remedy, is not remedied by the defaulting party within thirty (30) days of its receipt of written notice of the breach from the non-defaulting party;
  • 15.4.2) fraud or wilful default of the other party; or
  • 15.4.3) the other party is unable to pay its debts, or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.

• 15.5) On termination of this Agreement for any reason:
  
  • 15.5.1) Customer shall immediately pay to Evercam all amounts due and owing up to the date of termination;
  • 15.5.2) all licences and rights of access granted under this Agreement shall immediately terminate;
  • 15.5.3) each party shall return and make no further use of any Confidential Information, property, documentation and other items (and all copies of them) belonging to the other party;
  • 15.5.4) Evercam shall provide archival and storage services in respect of Project Data as may be agreed between the parties in accordance with clause 3.4; and
  • 15.5.5) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
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• 15.6) If Evercam terminates this Agreement due to Customer’s breach in accordance with clause 15.3 or 15.4, then Evercam may declare all outstanding amounts due and to become due in relation to the termination (including unpaid Fees through the normal expiration date of the then-current Term) immediately due and payable. 

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16). CONFIDENTIALITY 

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• 16.1) Each party (the “Receiving Party”) acknowledges that, in the course of this Agreement, it may obtain Confidential Information from the other party, (the “Disclosing Party”). The Receiving Party shall keep in confidence and protect the Confidential Information of the Disclosing Party from unauthorised disclosure or dissemination and use no less than that degree of care it uses to protect its own like information, and in any event no less than reasonable care. The Receiving Party shall not use such Confidential Information except in furtherance of this Agreement. 

• 16.2) The Receiving Party shall not disclose any Confidential Information to any person without the Disclosing Party’s prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees, independent contractors and agents (“Representatives”) on a “need-to-know” basis, provided that such Representatives are bound by a written agreement with materially the same terms and conditions as this clause 16 and the Receiving Party remains ultimately liable for any breach thereof. In addition, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any audit, financing transaction, regulatory or due diligence inquiry provided the recipients are subject to obligations of confidentiality at least as restrictive as those contained herein. Except as expressly provided in this Agreement, no ownership or license rights are granted in any Confidential Information. 

• 16.3) The obligations of confidentiality shall continue during the term of this Agreement and thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in clause 16.4. 

• 16.4) This clause 16 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain as a result of no act or omission of the Receiving Party or its employees or agents; (b) is received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party; (c) was independently developed by the Receiving Party without reliance on the Confidential Information as evidenced by its written records at the time; or (d) was, prior to its receipt by the Receiving Party from the Disclosing Party, in the possession of the Receiving Party and at its free disposal.

• 16.5) If the Receiving Party is confronted with legal action to disclose the Confidential Information received under this Agreement from the Disclosing Party or it is required to be disclosed by operation of law, the Receiving Party shall, unless prohibited by the applicable laws, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief that it deems appropriate, and the Receiving Party shall reasonably assist the Disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only the portion of the Confidential Information which must be disclosed as advised by its legal counsel.  

• 16.6) Any breach or threatened breach by the Receiving Party of an obligation under this clause 16 may cause the Disclosing Party immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Disclosing Party has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the Receiving Party or to compel specific performance of this clause 16.

• 16.7) A Receiving Party must notify the Disclosing Party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information, or any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

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17). FORCE MAJEURE

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• 17.1) Neither party shall have any liability to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, epidemic, (each of which shall be considered a “Force Majeure Event”) provided that the affected party notifies the other party  of such an event and its expected duration. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for one (1) month, the party not affected may terminate this Agreement by giving one calendar month written notice to the other party. Force Majeure shall not prevent or delay the payment of any sum due or to be due by either party.

18). MISCELLANEOUS

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• 18.1) Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law, or a single or partial exercise of such right or remedy, shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 

• 18.2) Invalidity. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

• 18.3) Entire Agreement. This Agreement and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Additional Quotes  may be agreed between the parties referencing this Agreement, each of which shall form part of the Agreement.

• 18.4) Assignment. Either party may assign on written notice all of its rights and obligations under this Agreement to (i) an Affiliate, (ii) a purchaser of all or substantially all assets related to this Agreement, or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which a party is participating. Any attempt to assign this Agreement in violation of this provision shall be void and of no effect. This Agreement is binding upon and shall benefit the parties and their respective permitted successors and assigns.  

• 18.5) No agency. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the parties, or authorize either party to act as agent for the other.

• 18.6) Notice. Any notice to be given by either party for the purposes of the Agreement shall be sent by email to the contact party whose details are set out in the Agreement. A notice delivered by email shall be deemed to have been received at 9.00am on the next business day after transmission.

• 18.7) Survival. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement. Without limiting the foregoing, the following clauses shall survive the termination or expiration of this Agreement: clause 6, 9,11,12, 13, 14, 15, 16, 17 and this clause 18.

• 18.8) Amendment. No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party. Notwithstanding, Evercam may amend these Terms of Service from time to time and will notify Customer prior to any such amendments taking effect. Should Customer decide that any amendment to the Terms of Service is unacceptable, Customer may by issuing notice in writing to Evercam, terminate this Agreement within thirty (30) days of being notified of such change by Evercam.  If Customer has does not terminate the Agreement within thirty (30) days, it shall be deemed to have accepted the amended Terms of Service. 

• 18.9) Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. The parties acknowledge that they may use an electronic signature process to sign this Agreement and agree to be bound by any such electronic signature which they have applied to the Agreement. The exchange of a fully executed version of this Agreement (in counterparts or otherwise) by electronic transmission (including .pdf or any electronic signature complying with Regulation (EU) N°910/2014 (eIDAS Regulation) and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes and shall be sufficient to bind the parties to the terms and conditions of this Agreement. No exchange of original signatures is necessary.

• 18.10) Dispute Resolution. The parties shall do their best acting in good faith to settle amicably any dispute, controversy or claim arising out of or in connection with the existence, validity, construction, performance and termination of the Agreement (or any terms thereof). Escalation to the senior management (or C-Suite) of the parties shall be the preferred dispute resolution methodology. If senior management (or C-Suite) cannot resolve the dispute within 30 days of first notification of the dispute the matter shall be referred to the applicable courts in accordance with clause 18.11. 

• 18.11) Governing Law and Jurisdiction. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it, its subject matter or its formation shall be governed by and construed in accordance with the laws of the jurisdiction in which the Evercam entity entering into this Agreement with the Customer is incorporated, without regard to conflict of law principles. Each party irrevocably agrees that the courts located in that jurisdiction shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.