Software as a Service (SaaS) End User License Agreement (EULA)
ITEXACT Limited, trading as Surveil (Supplier)
Last updated 29.4.26 Version: 3.1
1.EULA terms and conditions
1.1.Acceptance of terms and conditions:
(a)This EULA comprises these EULA terms and conditions, the Customer Information, Selected Options, Relevant Pricing and the Support and Service level Agreement. For Customers that have not entered into a Master Services Agreement with the Supplier, the pricing for the SaaS is set out in the Relevant Pricing
(b)The Customer accepts the EULA terms and conditions in effect at the time of supply of the SaaS. No right or license to access or use the SaaS is granted to the Customer unless and until the Customer has accepted this EULA (including by digital clickacceptance or other method made available by the Supplier).
(c)The Supplier may update these EULA terms and conditions at any time and the current version of the EULA terms and conditions (as published on Supplier’s website and referenced across the Supplier online services) will apply to the Customer except that where a Fixed Term applies the updated EULA terms and conditions will not apply for the remainder of the current Fixed Term but will apply for the renewal of that Fixed Term (if any) and any ongoing use beyond the end of the current Fixed Term (as applicable). Supplier will provide 30 days’ advance written notice of any material change to these EULA terms and conditions.
(d)Without limiting clause 1.1(b), the Customer’s continued use of the SaaS confirms the Customer’s acceptance to be bound by the latest EULA terms and conditions.
(e)Any additional or different terms that the Customer may stipulate or state in any communication with the Supplier will not be binding on the Supplier or included in this EULA unless expressly agreed in writing by the Supplier.
(f)The SaaS is available from the Supplier directly and from Authorized Partners and is available at various Purchase Locations. These EULA terms and conditions apply to Customers who have signed a Customer Master Services Agreement directly with Supplier and Customers that have purchased SaaS (or on whose behalf SaaS is purchased) via an Authorized Partners.
(g)All capitalized terms used in these EULA terms and conditions have the meanings given to them in the definition section in clause 19.
(h)Where someone other than the Customer purchases SaaS on behalf of the Customer that person is deemed to have authority to accept these EULA terms and conditions for the Customer.
(i)Where the Customer has entered into a Master Services Agreement with the Supplier which governs the supply of the SaaS, this EULA forms part of that Master Services Agreement as productspecific use terms. In the event of any inconsistency between this EULA and the Master Services Agreement, the EULA will prevail to the extent of that inconsistency.
2.Trial
2.1.If a Trial is available to the Customer and the Customer elects to use the SaaS for a Trial, the Customer acknowledges that use of SaaS for the Trial is subject to these EULA terms and conditions. This applies to Proof Of Concept (PoC) and Proof of Value (PoV) engagements.
2.2.Trial period
(a)The Trial will commence when the Trial SaaS is made available to the Customer. In order for the Trial SaaS to be available to the Customer, the Customer will need to follow the steps outlined to the Customer by the Supplier, the Authorized Partner or at the Purchase Location, and accept these EULA terms and conditions. The Customer acknowledges that the Trial is for the version of SaaS made available under the free trial offer, as hosted by the Supplier. The free trial will end on expiration of the Trial Period, unless terminated earlier under these EULA terms and conditions.
(b)No right or license to access or use the Trial SaaS is granted unless and until the Customer has accepted this EULA in accordance with clause 1.1.
(c)Any breach by the Customer of this EULA during a Trial shall give rise to the same rights of indemnity and recovery in favor of the Supplier as if the breach had occurred during a paid subscription term.
2.3.Provisioning for Trial
(a)The Supplier will provide the Trial SaaS to the Customer in accordance with these EULA terms and conditions. The Supplier will:
(i)provide the Customer with access to the Trial SaaS;
(ii)provide assistance with use of the SaaS as reasonably requested by the Customer (or the Supplier will procure the Authorized Partner to provide assistance). The assistance will be available from the Customer during the hours notified by the Supplier, or the hours notified by the Authorized Partner or at the Purchase Location (as applicable). If no hours are notified, the Supplier or relevant Authorized Partner will use reasonable endeavors to provide assistance during their working day.
2.4.Common terms apply: Except for clauses 3, 5 and 6, all clauses of these EULA terms and conditions apply to Trials (in addition to this clause 2). Without limiting the generality of the foregoing, any breach by the Customer of this EULA or of the Master Services Agreement during a Trial shall give rise to the same rights of indemnity and recovery in favor of the Supplier as if the breach had occurred during a paid subscription term.
3.SaaS
3.1.Provision of SaaS: Subject to the Customer having accepted this EULA in accordance with clause 1.1 the Supplier will provide the SaaS to the Customer in accordance with this EULA. The SaaS is provided to the Customer on a non-exclusive basis and the Customer’s right to use the SaaS is not transferable. The Supplier will provide log on access to the Customer to enable the Customer to access and use the SaaS.
3.2.SaaS Hosting and Availability: The Supplier provides the SaaS bundled with the Hosting. The Supplier’s commitment to SaaS availability is subject to the Support and Service Level Agreement.
3.3.Security Breach
(a)Without limiting any other legal obligations that the Supplier may have in the event of a security breach, the Supplier represents that it has used and will continue to use reasonable endeavors in designing and/or utilizing the SaaS Systems and in operating and managing the SaaS so as to minimize the risk of a Security Breach.
(b)In the event of any Security Breach:
i.the Supplier will, subject to all applicable laws, notify the Customer as soon as practicable after the Supplier becomes aware of the Security Breach;
ii.the Customer will notify the Supplier as soon as practicable, but no later than 24 hours after the Customer becomes aware of the Security Breach;
(c)subject to all applicable laws, immediately following notification of a Security Breach under clause 3.3(a) or (b) above, the parties will coordinate with each other to investigate the Security Breach. The Supplier will cooperate with the Customer in the Customer’s handling of the matter, including, without limitation by assisting with any investigation, providing the Customer with physical access to the facilities and operations affected to the extent reasonably practical, facilitating interviews with the Supplier’s employees and others involved in the matter and making available all relevant records, logs, files, data reporting and other materials required to comply with applicable law, regulation, industry standards or as otherwise reasonably required by Customer.
3.4.Data. Subject to the Data Processing Agreement and clause 9 (Confidential Information):
(a)The Customer warrants that the Customer has the right and authority to deal with the Data in the manner contemplated by this EULA.
(b)The Customer is responsible for:
i.all Data entry requirements; and
ii.except as expressly provided otherwise in this EULA, for all aspects of the Customer’s access and use of the SaaS; and
iii.managing the Permitted Users and ensuring their compliance with the obligations of this EULA in respect of their use of the SaaS and managing any changes to the Permitted Users;
iv.ensuring that Permitted Users keep all login details for the SaaS confidential and do not share their login details; and
v.ensuring that, in using the SaaS, the Customer and all Permitted Users comply with all applicable laws. To the extent permitted by law, the Supplier accepts no responsibility for ensuring that use of the SaaS will result in the Customer complying with applicable laws or enable the Customer to comply with applicable laws (including for example and without limitation, laws requiring records to be stored in a particular jurisdiction).
(c)Nothing in this EULA transfers ownership of the Data to the Supplier or to any Authorized Partner.
(d)All Data is available to the Customer:
i.for the term of this EULA, via the SaaS;
ii.on request to the Supplier at any time during the term of this EULA and for a period of 90 days following expiration or termination of this EULA.
(e)The Customer grants permission for the Authorized Partner to process Data for the purposes stated in the Data Processing Agreement https://surveil.co/dpa. To the extent Authorized Partner processes Data outside the scope set forth in the Data Processing Agreement Customer and Authorized Partner shall enter into a separate Agreement and Schedule for such processing.
3.5.Support: The Supplier or Authorized Partner will provide assistance in resolving issues in respect of the Customer’s access or use of the SaaS, in accordance with the Support and Service Level Agreement.
3.6.Common terms apply: Except for clause 2, all clauses of these EULA terms and conditions apply to the SaaS (in addition to this clause 3).
3.7.The Customer acknowledges and agrees that Bulk Data Transfers may be necessary for the provision of the SaaS and related services. Where an entity within the Partner Hierarchy is acting on behalf of the Customer, the Customer confirms that such entity has the authority to include the Customer’s Commercial Transaction Data in a Bulk Data Transfer, subject to the conditions:
(a)The Supplier will take all necessary steps to ensure that Bulk Data Transfers are secure and comply with the terms of this EULA and the Data Processing Agreement.
(b)Where a Bulk Data Transfer includes Commercial Transaction Data, the Supplier will ensure that such data is scoped to the relevant Authorized Distributor or Authorized Partner (Reseller) within the Partner Hierarchy and is subject to data isolation controls consistent with clause 3.9 below. Commercial Transaction Data transferred in bulk shall not be combined with or used to derive personal data.
(c)Where a Bulk Data Transfer includes personal data, all transfers shall comply with the Data Processing Agreement and applicable Data Protection Legislation. The Supplier shall maintain records of all Bulk Data Transfers involving personal data and make such records available to the Customer on request.
3.8.Partner Hierarchy Data Sharing Obligations.
(a)Flow-down obligation. The Supplier shall ensure that each Authorized Distributor and Authorized Partner (Reseller) within the Partner Hierarchy is bound by obligations no less protective of the Customer’s data than those set out in this EULA, as applicable to their respective roles.
(b)Authorized Distributor obligations. Each Authorized Distributor shall:
(i)access and process Commercial Transaction Data only for billing, provisioning and administration purposes within its authorized scope;
(ii)not access, view or process any Customer personal data held within the SaaS except where the Customer has given express written consent. Such consent shall be obtained at or prior to the point at which personal data is first shared with that entity, and the Supplier shall maintain a record of such consent and make it available to the Customer on request;
(iii)maintain adequate technical and organizational measures to protect Commercial Transaction Data;
(iv)notify the Supplier within 48 hours of becoming aware of any actual or suspected breach of Commercial Transaction Data within its systems; and
(v)on termination of its relationship with the Supplier or the Customer, securely delete or return all Commercial Transaction Data relating to that Customer within 30 days.
(c)Authorized Partner (Reseller) obligations. Each Authorized Partner (Reseller) shall:
(i)access and process Commercial Transaction Data only to the extent required to manage the Customer’s subscription;
(ii)not access, view or process any Customer personal data held within the SaaS except where the Customer has given express written consent. Such consent shall be obtained at or prior to the point at which personal data is first shared with that entity, and the Supplier shall maintain a record of such consent and make it available to the Customer on request;
(iii)maintain adequate technical and organizational measures to protect Commercial Transaction Data;
(iv)on termination of the Authorized Partner (Reseller)’s relationship with the Customer or the Supplier, securely delete or return all Commercial Transaction Data relating to that Customer within 30 days; and
(v)not retain or use Commercial Transaction Data for any purpose beyond the active term of its engagement with the relevant Customer.
(d)Customer visibility. The Supplier shall provide the Customer, at the point of entering into this EULA with a list of Authorized Distributors and Authorized Partner (Resellers) within the Partner Hierarchy that have been granted access to Commercial Transaction Data relating to that Customer’s account.
3.9.Data Isolation. The Supplier operates a multi-partner shared instance architecture. The Supplier commits that:
(a)each Customer’s Data is logically isolated within the SaaS such that no Authorized Distributor or Authorized Partner (Reseller) within the Partner Hierarchy can access the Data of Customers that are not within their own authorized Partner Hierarchy.
(b)Commercial Transaction Data is scoped at the individual Customer account level and is not aggregated across Customers in a manner that would expose one Customer’s Commercial Transaction Data to another; and
(c)the Supplier shall maintain and, on reasonable written request, evidence to the Customer the technical controls implementing this isolation commitment.
3.10.Delegated Administration and GDAP. Where the SaaS is provided in connection with Microsoft Cloud Services and a Granular Delegated Admin Privileges (GDAP) relationship is established between the Customer and an Authorized Partner (Reseller) or Authorized Distributor:
(a)the scope of access granted to the Partner Hierarchy via GDAP shall be limited to the roles and permissions expressly authorized by the Customer within the Microsoft admin environment and shall not be construed as a general permission to access Customer Data or personal data within the SaaS beyond those roles;
(b)the Customer acknowledges that GDAP is a Microsoft-controlled mechanism and that the Supplier’s obligations under this EULA apply to the SaaS environment specifically; and
(c)any access by a Partner Hierarchy entity to the Customer’s Surveil environment via GDAP-derived permissions is subject to Surveil’s role-based access controls (RBAC) and does not override the data isolation commitment in the preceding clause.
3.11.Multi-Partner Customer Relationships. A Customer may simultaneously have relationships with more than one Authorized Distributor for different services or service components. Where this applies:
(a)each Authorized Distributor’s access to Commercial Transaction Data is strictly limited to the service or services for which it has been appointed by the Customer;
(b)no Authorized Distributor has visibility of, or access to, Commercial Transaction Data relating to services administered by a separate Authorized Distributor for the same Customer; and
(c)the Supplier shall implement and maintain technical controls sufficient to enforce this boundary and shall, on reasonable written request, provide the Customer with evidence of those controls.
3.12.Data Analytics and Benchmarking
Subject to clause 7 (Data Processing) and clause 9 (Confidential Information) the Customer grants to the Supplier during the term of this EULA the worldwide, non-exclusive, non-transferable right to collect, copy, analyze (including by AI analytics), use, adapt, exploit and disseminate the Usage Data (provided this is aggregated and de-identified), in the course of its business activities for benchmarking, product development, and service improvement purposes. Supplier will ensure no Personal Data can be isolated or exposed in this process.
3.13.AI Features. Subject to clause 7 (Data Processing) and clause 9 (Confidential Information)
(a)From time to time, Supplier may introduce features and capabilities as part of the SaaS that utilize AI Features. Customer may upload Input, and receive Output generated by the AI Features. Customer is solely responsible for the Input and for ensuring that it complies with Applicable Laws and this EULA. Customer hereby grants to Supplier a non-exclusive, sublicensable, worldwide license in and to the Input during the term of this EULA solely in its business activities and subject to the restrictions in clause 3.13.
(b)Subject to clause 7 (Data Processing) and clause 9 (Confidential Information) and the restrictions in clause 3.11, the Supplier hereby grants Customer a limited, terminable only upon material breach by Customer or expiry/termination of this EULA, non-exclusive, non-transferable and non-sublicensable license to use the AI Features during the term of the term of this EULA. Supplier and its licensors exclusively own all right, title, and interest in and to the AI Features and the Output, including all associated intellectual property rights. For the avoidance of doubt, where the Output includes the Input in an unaltered state, that Input will remain the property of the Customer. To the extent permitted by applicable third-party terms of service, Supplier hereby grants to Customer a non-exclusive, sublicensable, worldwide license in and to the Output during the term of this EULA solely in its business activities and subject to the restrictions in clause 3.11 and 3.12.
3.14.Restrictions. Customer will not, unless permitted by express written consent from Supplier:
(a)Use any Supplier IP or the Output in connection with the development of any software program, such as competing service including, without limitation, training any artificial intelligence tools for any purpose, such as the purpose of developing content or large language model training; or
(b)use Supplier Content or the Output in connection with any third-party Artificial Intelligence tools for the purpose of deriving any profit or other financial gain.
(c)EU AI Restrictions (EU Customers only). The Customer will not, unless permitted by express written consent from Supplier:
(i)use Supplier IP, AI Features, AI Content or Output in any manner that violates applicable laws, regulations or guidelines, including but not limited to the EU AI Act;
(ii)sub-license, sell, lease or otherwise distribute AI Features, AI Content or Output to any third parties.
3.15.Transparency, Accountability, Governance & Oversight. The Supplier will ensure that:
(a)AI features are deployed in a manner that is transparent, traceable, and auditable;
(b)clear and understandable information about the AI System’s capabilities, limitations, and potential risks is available to Customers;
(c)it implements appropriate data governance measures to ensure the accuracy, relevance, and proportionality of the AI Features, and conducts regular risk assessments to identify and mitigate potential risks; and
(d)AI Features are deployed with appropriate human-machine interface tools to enable effective human oversight, including the ability to monitor, interpret, override, or stop the system when necessary.
4.SaaS Dependencies
(a)The Customer acknowledges that the SaaS is or may be dependent on proper implementation and availability and correct functioning of the Customer’s Integrated Services and Products.
(b)Neither the Supplier nor any Authorized Partner has any responsibility or liability to the Customer, and in any event no obligation to refund or reduce amounts paid by the Customer, for incorrect or unexpected functioning, or failure, of the SaaS where that incorrect or unexpected functioning, or failure, is directly or indirectly due to incorrect or inappropriate implementation or incorrect functioning, or lack of availability of the Customer’s Integrated Services and Products.
5.Charges and payment
5.1.The Customer will pay:
(a) where the Customer has entered into a Master Services Agreement with the Supplier in respect of the SaaS, the Charges set out in the Services Schedule (and any applicable Statement of Work) to that Master Services Agreement, in accordance with the timing and payment terms specified in that Master Services Agreement; and
(b) in all other cases, the Relevant Pricing for the SaaS to the Supplier, the Authorized Partner or via the Purchase Location (as applicable) in accordance with the timing agreed in writing between the Customer and the Supplier, between the Customer and the Authorized Partner or as accepted by the Customer at the Purchase Location. The Supplier reserves the right to suspend access to the SaaS if payment is not received within the applicable agreed timeframe.
5.2.All applicable value added taxes will be charged and payable in addition to the Relevant Pricing.
5.3.Subject to clause 5.4, the Customer will pay all invoices in full, without setoff, counterclaim or deduction of any kind, on or before the due date.
5.4.If the Customer wishes to dispute an invoice, it must notify the Supplier in writing within 14 days of the date of the invoice and provide details of the dispute. The Customer may withhold payment of the disputed part of an invoice only and must pay that part (or any amount subsequently agreed or determined to be the correct amount owing) promptly on resolution of the dispute.
5.5.Without the Supplier waiving any other right or remedy it may have, if any amount due is not paid by the Customer by the due date, the Supplier may:
(a)charge the Customer interest calculated at 10% on the balance of the amount due by the Customer from the due date until payment is received in full by the Supplier; and/or
(b)charge the Customer all collection costs reasonably incurred by the Supplier in collection of the amount outstanding (including solicitor and/or collection agency fees); and/or
(c)suspend supply of the SaaS until the outstanding amount is paid in full. The Supplier will give 10 Working Days’ notice in writing of its intention to suspend delivery under this clause. Any suspension right in this clause 5.5(c) is without prejudice to, and shall be exercised consistently with, any applicable suspension or termination rights in the Master Services Agreement (if any).
5.6.The Relevant Pricing may be changed by the Supplier on the Supplier giving at least six weeks’ written notice (by email) to the Customer of the new charges that will apply except that where a Fixed Term applies, the new pricing will not apply until expiration of the current Fixed Term.
5.7.Where the Customer has entered into a Master Services Agreement with the Supplier in respect of the SaaS, if there is any inconsistency between the pricing or payment provisions in that Master Services Agreement (including any services schedule) and this clause 5 or any Relevant Pricing, the Master Services Agreement will prevail to the extent of that inconsistency.
6.Term
6.1.Subject to clause 6.4 (Master Services Agreement customers), this EULA commences (and provision of the SaaS and Support Services commences) when the Customer purchases the SaaS, and this EULA will continue:
(a)where there is no Fixed Term, until terminated under clause 6.2 or clause 11;
(b)where there is a Fixed Term, for the Fixed Term unless terminated under clause 6.3 or clause 11.
6.2.In addition to the parties’ rights of early termination under this EULA or otherwise at law, where there is no Fixed Term, this EULA may be terminated by the Customer at any time:
(a)on written notice to the Supplier, or where the purchase was made from an Authorized Partner on written notice to that Authorized Partner; or
(b)through the termination processes at the Purchase Location,
with the termination taking effect at the end of the month in which the Supplier or Authorized Partner (as applicable) confirms receipt of the Customer’s termination request. The Customer shall pay all fees for the entire month in which the termination notice is provided.
6.3.In addition to the parties’ rights of early termination under this EULA or otherwise at law, where a Fixed Term applies (including where the Customer selects a Fixed Term at the Purchase Location as a Selected Option (where available)), this EULA will continue until expiration of the Fixed Term. On expiration of the Fixed Term this EULA will, subject to clause 5.4, automatically continue for further periods each of the duration of the Fixed Term (or such shorter period as may apply following the initial Fixed Term) on the same terms and conditions (unless updated as provided for under clause 1.1(b)) unless at least one month prior to the expiration of the current Fixed Term one party notifies the other party in writing that this EULA is to terminate on expiry of the current Fixed Term.
6.4.For Master Services Agreement customers: Where the Customer has entered into a Master Services Agreement with the Supplier in respect of the SaaS,
(a) the term, renewal and termination of the SaaS shall be governed by the term and termination provisions of that Master Services Agreement. Any provisions of this EULA concerning term, renewal or termination apply only to the extent they are not inconsistent with the Master Services Agreement: and
(b) this EULA will apply for the duration of the term of the Master Services Agreement and will automatically expire or terminate when that Master Services Agreement expires or terminates.
7.Data Processing
7.1.Where Data Protection Legislation applies, the current Data Processing Agreement found at https://surveil.co/dpa, as governed by the current Privacy Policy found at https://surveil.co/privacy, applies to this EULA and is incorporated into it by reference.
7.2.The parties acknowledge and agree that the Data Processing Agreement sets out the exclusive and exhaustive terms governing the processing of personal data by the Supplier on behalf of the Customer in connection with the SaaS. To the extent of any inconsistency or overlap between the Data Processing Agreement and this EULA (including any provisions relating to data protection, security, international transfers or data subject rights), the Data Processing Agreement shall prevail in respect of the processing of personal data.
8.Intellectual Property
8.1.All Intellectual Property in:
(a)the SaaS; and
(b)the software, processes, methodology and know-how used by the Supplier in its performance of this EULA;
is the property of the Supplier (or its licensors) and nothing in this EULA operates to change that ownership.
8.2.The Customer must not, nor may the Customer permit any other person to do any of the following, or attempt to do so:
(a)copy, alter, modify, reverse assemble, reverse compile, reverse engineer, decompile, disassemble, or enhance the SaaS Systems; or
(b)permit or enable users other than Permitted Users to access or use the SaaS; or
(c)provide the SaaS to any users through operation of a bureau or like service; or
(d)resell, rent, lease, transfer, sublicense or otherwise transfer rights to use the SaaS; or
(e)use the SaaS in any way that could damage or interfere with the SaaS Systems in any way;
(f)use the SaaS otherwise than in the manner in which the SaaS is designed to be used;
(g)use the SaaS in any way that could interrupt, damage or otherwise interfere with use of the SaaS by any other customers;
(h)do any act which would or might invalidate or be inconsistent with the Supplier’s Intellectual Property rights.
8.3.The Customer must notify the Supplier of any actual, threatened or suspected infringement of any Intellectual Property right and of any claim by any third party that any use of the SaaS infringes any rights of any other person, as soon as that infringement or claim comes to the Customer’s notice. The Customer must (at the Supplier’s expense) do all such things as may reasonably be required by the Supplier to assist the Supplier in pursuing or defending any proceedings in relation to any such infringement or claim.
8.4.The Customer indemnifies the Supplier its affiliates, and their respective officers, directors, employees, and agents against any loss, costs, expenses, demands or liability whether direct, indirect or otherwise, including reasonable legal fees, and whether arising in contract, tort (including negligence), equity or otherwise, arising out of or in any way connected with the Customer’s use of the SaaS or any breach of this EULA by the Customer or any Permitted User. The Customer’s indemnity in this clause applies to all use of the SaaS by or on behalf of the Customer, including any Trial, whether or not the Customer pays any fees for such use.
9.Confidential Information
9.1.The parties recognize and acknowledge the confidential nature of the Confidential Information.
9.2.Neither party may use or disclose any Confidential Information other than:
(a)to its employees, directors or contractors to the extent necessary in the performance of this EULA; or
(b)with the express prior written consent of the other party; or
(c)to its professional advisers.
10.Warranties
10.1.Each party warrants to the other that it has authority to enter into and perform and the ability to perform its obligations under this EULA.
10.2.With the exception of the warranties given under clauses 10.1, all warranties, terms and conditions (including without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
10.3.Any warranties made to the Customer under this EULA extend solely to the Customer.
11.Termination
11.1.The Supplier or the Customer may terminate this EULA immediately on written notice to the other party if the other party:
(a)breaches any of its obligations under this EULA and fails to remedy the breach within 20 days of receiving notice requiring the breach to be remedied; or
(b)ceases business or becomes insolvent or goes into liquidation or has a receiver or statutory manager appointed over its assets or ceases to carry on business or makes any arrangement with its creditors.
11.2.On termination of this EULA:
(a)all amounts due to the Supplier or relevant Authorized Partner will become immediately due and payable;
(b)the Supplier will cease to provide the SaaS to the Customer, and the Customer will cease to have any entitlement to use the SaaS;
(c)the provisions of this EULA that are by their nature intended to survive termination will remain in full force.
12.Liability
12.1.This limitation does not apply to claims by the Customer for bodily injury or damage to real property or tangible personal property where the Supplier is legally liable for that injury or damage.
12.2.In no event is the Supplier liable for any indirect loss or for any loss of profits, lost savings, lost revenue, loss of data, business interruption, incidental or special damages, or for any consequential loss.
12.3.Where the Customer has entered into a Master Services Agreement with the Supplier in respect of the SaaS, the limitations and exclusions of liability, and any indemnities, set out in that Master Services Agreement will apply to the supply and use of the SaaS and prevail over this clause 12 to the extent of any inconsistency.
12.4.Subject to clauses 12.1 to 12.3 the Supplier’s liability under this EULA (to the extent not governed by a Master Services Agreement) is limited to the amount paid by the Customer in the 12 month period preceding the event giving rise to the claim.
12.5.The limitations under clause 12.4 shall not apply to clause 8.4.
13.Dispute resolution
13.1.In the event of any dispute arising between the parties in relation to this EULA, no party may commence any proceedings relating to the dispute (except where the party seeks urgent interlocutory relief) unless that party has complied with the procedures in this clause 13.
13.2.The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within fourteen days of receipt of the notice, give written notice to the first party naming its representative for the negotiations (“Other Party’s Notice”). Each nominated representative will have authority to settle or resolve the dispute. The parties will co-operate with each other and endeavor to resolve the dispute through discussion and negotiation.
13.3.If the dispute is not resolved within one month following the date of the Other Party’s Notice (or such longer period agreed by the parties in writing), either party may utilize any other legal remedies available to it in seeking to resolve the dispute.
14.Consumer guarantees
14.1.The Customer acknowledges that where it is acquiring the SaaS for the purposes of a business, to the extent permitted by the relevant legislation, any statutory consumer guarantees or legislation that are intended to apply to non-business consumers only will not apply.
15.Force majeure
15.1.The Supplier may suspend its obligations to perform under this EULA if it is unable to perform as a direct result of a Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event continues.
15.2.Where the Supplier’s obligations have been suspended under clause 15.1 for a period of 90 days or more, the Customer may immediately terminate this EULA by giving notice in writing to the Supplier.
16.General
16.1.Entire agreement:
(a)Where the Customer has not entered into a Master Services Agreement with the Supplier in respect of the SaaS, this EULA constitutes the complete and exclusive statement of the agreement between the parties relating to the subject matter of this EULA, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to that subject matter.
(b)Where the Customer has entered into a Master Services Agreement with the Supplier in respect of the SaaS, that Master Services Agreement (together with this EULA, the Data Processing Agreement and the Support and Service Level Agreement (and any schedules thereto)) constitutes the complete and exclusive statement of the agreement between the parties relating to the subject matter of the Master Services Agreement. In the event of any inconsistency between this EULA and the Master Services Agreement, this EULA will prevail to the extent of that inconsistency.
16.2.Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.
16.3.Partial invalidity: If any provision of this EULA or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this EULA and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
16.4.Independent contractor: The Supplier is an independent contractor to the Customer and is in all respects independent of the Customer. Nothing in this EULA constitutes either party a partner, agent, employee or joint venture of the other.
16.5.Suspension: The Supplier may suspend performance of its obligations under this EULA for so long as it is unable to perform for reasons outside of its control.
16.6.Assignment: The Customer is not permitted to assign its rights under this EULA. The Supplier may not assign this EULA without the Customer’s prior written consent, except in connection with a merger, acquisition, or sale of all or substantially all of the Supplier’s assets, in which case the Supplier shall notify the Customer within 30 days.
17.Notices
17.1.Notices from the Supplier to the Customer under this EULA will be sent to the Customer at the Customer’s contact details specified in the Customer Information. The Customer may notify the Supplier of a change to the contact details specified in the Customer Information, on 14 days’ notice in writing to the Supplier. Notices from the Customer to the Supplier under this EULA must be sent to the Supplier at the Supplier’s relevant office, details included on the Supplier’s website.
17.2.Notices sent by email will be deemed received on sending, provided that the sender does not receive an automatic delivery failure notification. Notices sent by post will be deemed received:
(a)on the fifth day following posting if sent and received nationally (not internationally); and
(b)on the fifteenth day following posting if posted internationally.
18.Governing law and jurisdiction
This EULA is governed by the laws of England and Wales. The parties hereby submit to the non-exclusive jurisdiction of the courts of England and Wales.
19.Definitions
In this EULA the following terms have the following meanings:
“AI Content” means any Input (as defined below) that is processed through or by or because of the AI Features, or Output prompted or generated through or by or because of the AI Features;
“AI Features” means the tools used by Supplier which include, use, require or are supported, created or powered by machine learning or Artificial Intelligence, including but not limited to: models, algorithms, training data and methodology, chatbot, virtual assistant etc.;
“AI System” means a machine-based system designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence a physical or virtual environment;
“Artificial Intelligence” or “AI” means machine-based functionality which has been developed to generate, create or predict Output based on Input;
“Authorized Distributor” means a third party that has been authorized by the Supplier to distribute the SaaS through Authorized Partner (Resellers) and that has been authorized by the Customer to act within the Partner Hierarchy in respect of that Customer’s account. An Authorized Distributor does not acquire any right to process the Customer’s personal data except as expressly authorized by the Customer;
“Authorized Partner (Reseller)” means a third party authorized by an Authorized Distributor to resell the SaaS to Customers and authorized by the Customer to act within the Partner Hierarchy in respect of that Customer’s account. An Authorized Partner (Reseller) does not acquire any right to process the Customer’s personal data except as expressly authorized by the Customer;
“Partner Hierarchy” means the chain of authorized entities comprising the Supplier, one or more Authorized Distributors, and one or more Authorized Partner (Resellers) through which the SaaS may be made available to Customers. Each entity in the Partner Hierarchy is bound by the obligations applicable to its role as set out in this EULA. No entity in the Partner Hierarchy acquires rights in excess of those expressly granted by this EULA or by the Customer;
“Commercial Transaction Data” means non-personal data relating to the commercial relationship between the Supplier, the Partner Hierarchy and the Customer, including without limitation subscription identifiers, SKU codes, license quantities, pricing, billing and provisioning data. Commercial Transaction Data does not include personal data (as defined in applicable Data Protection Legislation) and is governed by this EULA alone. Where any data flowing through the Partner Hierarchy could constitute both Commercial Transaction Data and personal data, the personal data elements shall be governed exclusively by the Data Processing Agreement (DPA);
“Bulk Data Transfer” means the transfer of large volumes of Data, including the Customer’s Data and Personal Data, to a third party or across borders, subject to compliance with applicable Data Protection Legislation;
“Confidential Information” means any proprietary information, know-how and data disclosed or made available by one party to the other party but does not include any information which:
i)is in the public domain without any breach of this EULA;
ii)on receipt by the other party is already known by that party;
iii)is at any time after the date of receipt by the other party, received in good faith by that party from a third party;
iv)required by law to be disclosed by the other party;
“Customer” means the customer named in the Customer Information;
“Customer Information” means the customer name, email address and any other contact information submitted by or on behalf of a customer:
i)to the Supplier or Authorized Partner in the course of agreeing to purchase (or agreeing to a Trial) of the SaaS;
ii)at a Purchase Location in the course of agreeing to purchase (or agreeing to a Trial) the SaaS;
“Customer’s Integrated Services and Products” means services or products (including third party services or products) which are integrated (in any way) by or for the Customer with the SaaS, regardless of who undertakes that integration work or how it is undertaken;
“Data” means the Customer’s data that is entered by the Customer and processed in the course of provision of the SaaS and includes where the context permits, the ‘Personal Data’ (as defined in the attached GDPR and DPA);
“Data Processing Agreement (DPA)” means the Suppliers current DPA found at https://surveil.co/dpa/;
“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK and EU including without limitation the UK GDPR, the EU GDPR, the Data Protection Act 2018 (and regulations made thereunder (DPA 2018), and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, the US Data Protection Legislation; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data;
End User License Agreement or EULA means this whole document and its applicable scope;
“EU AI Act” means the regulation (EU) 2024/1689;
“EU GDPR” means the General Data Protection Regulation (EU) 2016/679;
“Exception Factors” means factors the existence of which mean the Supplier cannot ensure availability of the SaaS, as described in clause 9.2 of https://surveil.co/ssla;
“Fixed Term” (if any) means:
i)the fixed term for supply of the SaaS, agreed in writing between the Supplier or relevant Authorized Partner and the Customer; or
ii)the fixed term selected by the Customer in the Selected Options;
“Force Majeure Event” means any war, riot, third party strike, natural disaster or other circumstance of a similar nature that is outside of the control of the affected party;
“Hosting” means the Standard Hosting or if applicable, the Selected Hosting and is subject to the Monthly Uptime Commitment;
“Input” means any data or other information Customer or Customer’s User provides to Supplier to be processed by an AI Feature.
“Intellectual Property” includes all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights whether registered or unregistered;
“Master Services Agreement” means the master services agreement, entered into in writing between the Supplier and the Customer governing the supply of the SaaS .
“Monthly Uptime Commitment” (where applicable) means the monthly uptime commitment made by the Supplier for the SaaS, relevant to the Hosting, as defined in the Support and Service Level Agreement;
“Output” means any data, information, functionality, or action, carried out, prompted, predicted or generated by an AI Feature using the Input.
“Permitted Users” means:
(a)employees, directors or contractors of the Customer; and
(b)where the Selected Options include options for selecting the number of permitted users, not more than the number of employees, directors or contractors selected;
“Planned Maintenance” means maintenance on all or any part of the SaaS Systems and if applicable to this EULA will be undertaken at times notified to the Customer in writing;
“Purchase Location” means any internet site from which the SaaS is available for purchase;
“Relevant Pricing” means the pricing for the SaaS that is notified in writing to the Customer by the Supplier or by the relevant Authorized Partner prior to the purchase by the Customer or made available at the Purchase Location, and:
(a)includes Standard Hosting or Selected Hosting as applicable;
(b)where Selected Options apply, means or includes (as applicable) the pricing for the Selected Options;
“SaaS” means the software-as-a-service supplied by the Supplier and selected by the Customer by agreement with the Supplier or an Authorized Partner or at the Purchase Location, as modified from time to time by the Supplier;
“SaaS Systems” means, as the context permits, the software used by the Supplier to provide the SaaS and/or the equipment on which that software is installed (whether this is the Supplier’s software or equipment or is third party software or equipment);
“Security Breach” means access or disclosure of the Data to or by anyone other than the Permitted Users where the access or disclosure occurs through bypassing the security mechanisms of the SaaS Systems;
“Selected Hosting” if there are hosting options other than Standard Hosting, means the hosting selected by the Customer from the options offered by the Supplier to the Customer;
“Selected Options” means, if there are options to choose from for provision of the SaaS, the options for provision of the SaaS selected by the Customer by agreement with the Supplier, an Authorized Partner or at the Purchase Location (the options may include for example, the Selected Hosting (if applicable), Support Services options, the maximum number of users or the term for which the SaaS is to be provided);
“Supplier IP” means the Intellectual Property rights pertaining to the Supplier or its licensors incorporated in the SaaS.
“Support and Service Level Agreement” means the Supplier’s standard Support and Service Level Agreement which found at https://surveil.co/ssla;
“Support Services” means the support services provided under the Support and Service Level Agreement;
“Standard Hosting” means the Supplier’s standard hosting offering for the SaaS as notified by the Supplier to the Customer (or if not notified, details are available on request from the Supplier);
“Trial” (where available) means use of the SaaS, at 100% discount;
“Trial Period” (where applicable) means the trial period notified to the Customer in writing by the Supplier, Authorized Partner or at the Purchase Location, prior to commencement of the Trial;
“Trial SaaS” (if any) means the version of the SaaS made available by the Supplier at its discretion for a Trial.
“UK GDPR” means the EU GDPR as amended and incorporated into English law in the DPA 2018;
“Usage Data” means data derived from the use by the Customer of the SaaS;
“US Data Protection Legislation” means all applicable federal and state data protection law including the California Consumer Privacy Act 2018 and the California Privacy Rights Act 2020.
20.Interpretation
In this EULA:
(a)reference to the plural includes reference to the singular, and vice versa;
(b)headings inserted for convenience of reference only and do not affect the interpretation of this EULA.