Terms of Service

OPTIC SYSTEMS SOFTWARE - 360 SYSTEM TERMS OF SERVICE

These Terms of Service (“Terms of Service”) govern the use of the Optic Systems Software - 360 System provided by Optic Systems to Customer and are incorporated by reference into, and subject to, the Master Services Agreement (“MSA”) between Customer and Optic Systems, LLC. In the event of any conflict between these Terms of Service and the MSA, the terms of the MSA shall control. By accessing or using the 360 System Customer acknowledges that it has read, understands, and agrees to be bound by both the MSA and these Terms of Service.

1. DEFINITIONS. The following capitalized terms will have the following meanings when used in these Terms of Service. Any other defined terms used and not otherwise defined herein, shall have the meaning ascribed to them in the MSA.

1.1. 360 System. The “360 System” means the proprietary real property compliance and inspection software system and dashboard powered by Optic Systems and made available to Customer via a Subscription License through Optic Systems.

1.2. Affiliates. “Affiliates” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party, where “control” means the ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interests of such entity, or the power to direct or cause the direction of the management and policies of such entity, whether through the ownership, management, contract, or otherwise.

1.3. Applicable Laws. “Applicable Laws” means and includes all applicable laws, rules or regulations, including without limitation any local, state, provincial, national or international law; any Community Development District (“CDD”) or Property Owners’ Association articles of incorporation, bylaws, rules and regulations, board adopted resolutions, and covenants and restrictions; any laws governing the collection, sharing or use of personal or private information; any laws or regulations governing email, mailing or text messaging services; or any regulations promulgated by any state or federal authority.

1.4. Content. “Content” means data, information, resources, materials, maps, reports, photographs, illustrations, and other content such as text, audio, video, graphics, and other media.

1.5. Customers System and Software. “Customers System and Software” means any systems and/or software owned, licensed or controlled by Customer, that Optic Systems will be provided access to for purposes of integrating its software, or the Customer Data contained therein, into or with the 360 System, in order to communicate, share and/or process Customer Data.

1.6. Customer Data. “Customer Data” means data and Content in electronic form input or collected through the 360 System by or from Customer, End Users, or Customers System and Software, including without limitation, information uploaded by End Users into the 360 System and information communicated through or pulled from Customers System and Software, including information about Property Owners and their property their violation history and their contact information such as their mailing address, email address and telephone number, and other personal information related to Customer, End Users and/or Property Owners.

1.7. Documentation. “Documentation” means Optic Systems’ standard manual related to use of the 360 System, as well as all training guides, click-throughs, video walk-throughs and any user manuals for that may be made available.

1.8. End User. “End User” means any individual who uses and accesses the 360 System dashboard with permission from Customer, including but not limited to, employees, independent contractor and agents of Customer.

1.9. Enhancements. “Enhancements” means any change, derivation, extension or further development of an existing feature, or creation of a new capability or feature, of any component of the 360 System.

1.10. Feedback. “Feedback” means any suggestion or idea for improving or otherwise modifying the 360 System or any of Optic Systems’ applications, products or services.

1.11. Inspectors. “Inspectors” means the employees, agents and subcontractors of Optic Systems responsible for providing the Inspection Services, including but not limited to drivers and field-video technicians.

1.12. Inspection Data. “Inspection Data” means all data, information, materials and content collected, generated, or produced through use of the Services, including Inspection Videos, drone scans, photographs, images, asset tags, geo location data, annotations, reports, analyses and other work product.

1.13. Inspection Services. “Inspection Services” means inspection services provided by Inspectors on foot or via scooter, vehicle, ATV and/or drone.

1.14. Inspection Videos. “Inspection Videos” means the inspection videos uploaded to the 360 System, whether recorded by Inspectors or Customers.

1.15. Onboarding. “Onboarding” means the standard setup and configuration of Customer’s account and dashboard as well as training on how to use the 360 System.

1.16. Optic Systems Associates. “Optic Systems Associates” includes Optic Systems’ subsidiaries, agents, successors, and assigns.

1.17. Property Owners. “Property Owners” means the owners of the real property captured in images and recordings through use of the 360 System and Equipment.

1.18. Property Owners’ Association. “Property Owners’ Association” means and includes any property owners’ association, formed pursuant to statute or otherwise, representing and composed of the interests of residential, commercial, and/or mixed-use property owners, including but not limited to homeowners’ associations, condominium owners’ associations, and/or any other governing body or organization with similar structure and purpose.

1.19. Third-Party Provider. “Third-Party Provider” means the owner of certain content and services, which are incorporated, integrated or used in the provision of the 360 System, or for which Optic Systems acts as a licensee, user, partner or customer.

1.20. Third-Party Provider Terms. “Third-Party Provider Terms” means applicable license agreements, end user license agreements, privacy policies, terms of use, service level availability rights and guarantees, and similar policies and requirements established by Third-Party Providers from time-to-time.

1.21. Updates. “Updates” means all revisions, updates, improvements, corrections and releases to the 360 System that could be used to support and provide the 360 System.

2. LICENSE AND AUTHORIZATION TO ACCESS AND USE THE 360 SYSTEM.

2.1. License Grant. Optic Systems hereby grants to Customer during the Subscription License Term (as defined in Customer’s MSA), the following: (i) a non-exclusive right and revocable license to use and access, and the right to authorize and provide End Users with use and access to the 360 System; and (ii) the right to view, prepare, reproduce, print, download and use copies of Documentation, as such may be applicable, for internal business purposes only as may be useful for use of the 360 System pursuant to these Terms of Service (the “Subscription License”). Optic Systems and Customer’s rights to terminate Customer’s Subscription License are set forth in the MSA.

2.2. End Users. Customer may authorize End Users to access or use the 360 System in accordance with the terms set forth herein. Before accessing or using the 360 System End Users shall be required to acknowledge and agree to the https://opticsystems.io/privacy-policy and https://opticsystems.io/terms-of-use the terms of which may be updated from time to time, and which are hereby incorporated by reference, as a condition of and prior to becoming an End User. Use of the 360 System by End Users will be governed by such policies as well as these Terms of Service.

2.3. Authorization Limitations and Restrictions. Customer shall not, nor shall Customer allow its End Users or any other person to, access or use the 360 System except as expressly permitted by these Terms of Service. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Terms of Service expressly permit:

2.3.1. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the 360 System to any person (other than End Users), including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

2.3.2. bypass or breach any security device or protection used by the 360 System or access or use the 360 System other than by an End User through the use of his or her own then valid access credentials;

2.3.3. input, upload, transmit or otherwise provide to or through the 360 System, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;

2.3.4. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the 360 System or Optic Systems’ provision of services to any third party, in whole or in part;

2.3.5. use the 360 System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the 360 System;

2.3.6. share non-public 360 System features or content with any third party;

2.3.7. access the 360 System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the 360 System, or to copy any ideas, features, functions or graphics of the 360 System;

2.3.8. remove, delete, alter or obscure any trademarks, patent registration numbers or markings, specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other Intellectual Property or proprietary rights notices from the 360 System, including any copy thereof; or

2.3.9. otherwise access or use the 360 System beyond the scope of the authorization granted in these Terms of Service.

3. CUSTOMER DATA & PRIVACY.

3. CUSTOMER DATA & PRIVACY.

3.1. Ownership and Treatment of Customer Data. Customer is solely responsible and liable for the accuracy, quality, legality, reliability, appropriateness, and completeness of, and for securing all appropriate Intellectual Property rights and other rights to use and disclose, any and all Customer Data that is sent to, stored with or made available by Customer through the 360 System or provided to Optic Systems. Customer acknowledges that Optic Systems does not own or control, and is not responsible or liable for the accuracy, quality, legality, reliability, appropriateness, or completeness of, any Customer Data that is sent to, stored with or made available through the 360 System. Optic Systems retains the sole and exclusive right to review and remove or refuse to display any Customer Data on the 360 System at Optic Systems’ discretion.

3.2. License to Customer Data. Customer hereby grants to Optic Systems and its Affiliates a limited, non-exclusive, royalty-free, non-transferable (except in connection with an assignment of Customer’s MSA), worldwide license to access, use, store, reproduce, display, perform, and modify Customer Data solely to the extent necessary to provide the Services (defined in the MSA) under the MSA and to develop, train, validate and improve the performance, functionality, and security of the 360 System (“Customer Data License”).

3.3. Privacy Policy. Optic Systems’ use, collection, and disclosure of personal information shall be governed by its Privacy Policy. Customer acknowledges and agrees that the Privacy Policy may be updated from time to time to reflect changes in laws, regulations, or business practices, and that the most current version of the Privacy Policy shall be made available and maintained at https://opticsystems.io/privacy-policy or another Optic Systems-controlled web address. Optic Systems shall provide notice of material changes to the Privacy Policy by posting a prominent notice on Optic Systems’ Website. The Privacy Policy does not apply to any third party owned websites, or service linked to the 360 System or Optic Systems’ website or recommended or referred to through the 360 System, Optic Systems’ website or by Optic Systems’ staff. The Privacy Policy applies only to Optic Systems and Optic Systems Associates websites.

3.4. Security. Customer shall be responsible for Customer Data in possession of Customer and End Users and all security or breaches for Customer Data while in Customer’s possession and others caused by acts or omissions of Customer or Customer’s End Users.

3.5. Data Accuracy. Optic Systems will have no responsibility or liability for the accuracy of data uploaded to the 360 System by Customer or its End Users, including without limitation Customer Data and any other data uploaded by Customer or End Users. Optic Systems shall further have no responsibility or liability for the accuracy of Third-Party Provider services used as part of the 360 System, including without limitation Google Maps API.

3.6. Data Deletion. Optic Systems may temporarily or permanently restrict Customer’s access to Customer Data stored in the 360 System, if Customer’s account is delinquent, suspended, or terminated for ninety (90) days or more. After ninety (90) days following the termination or expiration of these Terms of Service, Optic Systems shall have the right to permanently delete all Customer Data from its systems and backups.

3.7. Aggregate & Anonymized Data. Notwithstanding anything to the contrary, Optic Systems and its successors and assigns shall have the right where permitted by law to collect, aggregate and analyze anonymized or de-identified data and other information relating to Customers, End Users and/or Property Owners and their use of the 360 System, including, without limitation, information concerning Customer Data and data derived therefrom (collectively, “Aggregated Data”), and Company will be free during and after the Term to use Aggregated Data to analyze, support, develop, operate, train and improve the 360 System and other related business offerings and for other lawful business purposes.

4. INSPECTION DATA AND INSPECTION VIDEOS. The Inspection Data and all other data and Content generated that is not directly uploaded into the 360 System by Customer but is instead generated for Customer or through Customer’s use of the 360 System or other Services, shall be owned by Optic Systems (“System Data”). All Inspection Videos, excluding Customer Recorded Videos, are exclusively owned and controlled by Optic Systems. All videos that are captured by Customer, its End Users or their authorized agents, using equipment leased through Optic Systems (“Customer Recorded Videos”), shall be considered Customer Data, subject to the Customer Data License of Section 3.2.

5. OPTIC SYSTEMS RESPONSIBILITIES. Optic Systems shall be responsible for the following:

5.1. Access. Optic Systems will provide Customer and its End Users with access to 360 System pursuant to these Terms of Service. Optic Systems may modify the 360 System in its sole discretion provided, however, that Optic Systems shall notify Customer of any modifications which would materially affect Customer’s use of the 360 System. Optic Systems will engage in commercially reasonable efforts to provide Customer with advance notice of any planned

360 System shutdowns or outages or other events which Optic Systems believes are likely to interrupt Customer’s access to the 360 System. Updates to the 360 System are considered critical to Optic Systems in improving the 360 System’s performance, response, and security to the benefit of its entire customer base. Optic Systems may, in its sole discretion, subcontract with Third-Party Providers to provide services related to the 360 System.

5.2. Risk of Exposure; Security. The Parties acknowledge that hosting and transmitting data over the internet involves inherent risks. Optic Systems shall implement and maintain commercially reasonable administrative, technical and physical safeguards designed to protect Customer Data against unauthorized access, disclosure or loss while it is stored in the 360 System. As to the 360 System and implementing and maintaining security systems consisting of encryption and "firewall" technologies to enable the secure transmission of data, Optic Systems may from time to time, in its sole discretion, modify or upgrade such security systems to maintain or enhance the level of security provided for the transmission of data. This does not exclude or limit the responsibility of Customer in any way as to the security required to be maintained over Customers System and Software, Customer Data and data transmission. Optic Systems shall be responsible for unauthorized access to, disclosure of and loss of Customer Data to the extent caused by Optic System’s failure to comply with this Agreement, including its security obligations hereunder. Optic Systems shall not be responsible for unauthorized access, disclosure or loss of Customer Data resulting from actions of Customer or its End Users or Customer’s System and Software. Any liability arising under this Section shall be subject to the limitations of liability set forth in Section 13.

5.3. Updates, Enhancements and Maintenance. Optic Systems endeavors to provide uninterrupted service to Customer. Optic Systems reserves the right to interrupt service to perform updates, Enhancements and routine scheduled maintenance. Customer acknowledges that the 360 System may be subject to occasional downtime for maintenance, updates or other operational issues. In the event of unforeseen network or software failures, Optic Systems will use reasonable efforts to expeditiously repair and/or restore the 360 System. The 360 System is integrated with and hosted by Third-Party Providers, including but not limited to Google and AWS, and Optic Systems has no control over when those third-party applications might interrupt service due to equipment or technology failures, or to perform updates, enhancements and routine scheduled or unscheduled maintenance, which would in turn disrupt the 360 System.

5.4. Support Services. Optic Systems shall provide to Customer and its End Users, initial training and support services, as agreed to by the Parties, in connection with the use and operation of the 360 System (“Support Services”). Customer shall have the option to purchase additional training beyond the scope of the Support Services, by executing an Order Form, on terms mutually agreed to by Optic Systems and Customer. Optic Systems shall provide Support Services and technical support personnel for the resolution of technical questions and errors in line with Optic Systems’ Documentation. Telephonic support for the 360 System will be available to Customer between the hours of 8:00 AM and 7:00 PM Eastern Time Monday through Friday except federal holidays.

5.5. Material Customizations or Changes to the 360 System. Should Customer request, at any time, material modifications, customizations, or changes to the 360 System that are beyond the standard scope of functionality and configurations available in the 360 System (“Material Changes”), Optic Systems and Customer will negotiate an appropriate cost, description, and schedule and incorporate these additional services or deliverables by executing an addendum or statement of work to the MSA. Optic Systems shall make such Material Changes and refine the design and development of the customized version in accordance with such addendum or statement of work. Customer shall pay the costs of such Material Changes as agreed upon by the Parties in the addendum or statement of work.

6. CUSTOMERS’ RESPONSIBILITIES & RESTRICTIONS.

6.1. Inspection Video Storage. Customer can access the Inspection Videos, by accessing their dashboard through the 360 System for up to ninety (90) days free of charge. Inspection Videos stored beyond ninety (90) days will be charged at the then current rate for video storage over ninety (90) days, as set forth in Customer’s Cost Schedule. Customer shall be solely responsible for deleting Inspection Videos from Customer’s dashboard. Optic Systems does not back-up Inspection Videos and shall have no liability or responsibility to Customer, for Customer’s inadvertent or mistaken removal or deletion of any Inspection Videos.

6.2. Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the 360 System, including without limitation by protecting Customer and its End User’s passwords and other log-in information. Customer will notify Optic Systems immediately of any known or suspected unauthorized use of the 360 System or breach of its security and will use best efforts to stop said breach.

6.3. Customers System and Software. Customer acknowledges that it is solely responsible for the maintenance and security of Customers System and Software including any Customer Data, Property Owner information or other personally identifiable data, maintained, monitored or transferred through Customers System and Software. Customer will be responsible for: (i) establishing, maintaining and providing the necessary security over Customers System and Software that integrates or communicates with the 360 System; (ii) ensuring that all proper licenses and permissions have been obtained for Optic Systems to access, use and/or communicate with Customers System and Software and Customer Data; and (iii) establishing and maintaining appropriate and necessary integration between Customers Systems and Software including, but not limited to, delivering the required Customer Data to Optic Systems’ server(s) and ensuring that the Customer Data to be transmitted in conjunction with the 360 System is accurate, secure and in the format required by Optic Systems.

6.4. Compliance with Applicable Laws. In its use of the 360 System Customer will comply with all Applicable Laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data. Customer shall be responsible for ensuring that no Applicable Laws restrict or prevent use of the 360 System in connection with a particular Property.

6.5. End Users and 360 System Access. Customer is responsible and liable for: (i) Customer’s End Users’ use of the 360 System, including without limitation unauthorized End User conduct and any End User conduct that would violate the requirements of these Terms of Service applicable to Customer; and (ii) any use of the 360 System through Customer’s account, whether authorized or unauthorized.

7. THIRD-PARTY PROVIDERS.

7.1. Ownership of Third-Party Provider Intellectual Property. Customer acknowledges that Optic Systems may utilize certain Third-Party Provider owned or controlled software, services or other content in connection with the provision of the Services and that such Third-Party Provider owned or controlled software, services and other content may be acquired and licensed directly or indirectly to Customer from such Third-Party Provider. Subject to Customer’s right to use the Third-Party Provider content as incorporated in the 360 System any Third-Party Provider owned or controlled Intellectual Property used in the provision of the 360 System shall continue to be owned or controlled by such Third-Party Provider.

7.2. Third-Party Provider Services. Optic Systems is an authorized licensee, user, partner and/or customer of certain Third-Party Provider owned or controlled services and content. Customer understands and agrees that: (i) although Customer is contracting directly with Optic Systems for access to the 360 System generally, certain content and services may be provided by Third-Party Providers and are provided to Customer in accordance with the applicable Third-Party Provider Terms; (ii) Optic Systems retains the right to change any such Third-Party Provider at any time, upon prior notice to Customer; and (iii) Customer agrees to be bound by any applicable Third-Party Provider Terms. Customer further acknowledges that the Third-Party Provider services and content will be provided in accordance with such Third-Party Provider Terms, the service levels and availability of which Optic Systems cannot guarantee.

7.3. Third-Party Errors. Customer acknowledges that the 360 System may interoperate with or rely on Third-Party Provider platforms, software or networks that Optic Systems does not control. While Optic Systems implements commercially reasonable safeguards to protect the 360 System, Optic Systems does not guarantee that no errors will occur or that unauthorized code, malware, or viruses will not be introduced into the 360 System as a result of acts or omissions of third parties outside of Optic Systems reasonable control (“Third-Party Errors”). Optic Systems shall not be liable for such Third-Party Errors.

8. INTELLECTUAL PROPERTY & FEEDBACK.

8.1. Definition of Intellectual Property. “Intellectual Property” means: (i) all works of authorship, including without limitation, all literary works, pictorial and graphic works, software, source code and any other work that may be the subject matter of copyright protection and all worldwide registrations thereof (“Copyrights”); (ii) any trademarks, service marks, brand names, trade dress, trade names, designs and any other word, symbol, device, product configuration, slogan or any combination thereof used to distinguish or identify goods or services that may be the subject matter of trademark protection, including all worldwide applications and registrations therefore and associated goodwill (“Trademarks”); (iii) any patents, patent applications, continuations, continuations in part, child applications, invention disclosures or inventions, including all methods, business methods, processes, machines, manufactures, systems and compositions of matter, designs and any other inventions that may be the subject matter of patent protection (“Patents”); (iv) all domain names, URLs, websites, and all data, content, “look and feel”, operating and underlying code or software of all websites; (v) all trade secrets, proprietary information, data, and knowledge and experience of a technical, commercial or administrative nature, including all proprietary information, know-how, information processes, operating, maintenance and other manuals, data and databases, computer programs, including all documentation, design specifications, and flowcharts, operational and other plans, schematics and drawings, customer data and lists, advertising (“Know-how”), marketing and product concepts and campaigns and other valuable or proprietary information or data, and (vi) all worldwide statutory protection obtained or obtainable thereon on all of the preceding.

8.2. Ownership of Intellectual Property Rights to the 360 Systems. Optic Systems and Optic Systems Associates, as applicable, shall retain all right, title, and interest in and to the 360 System including without limitation all software used to provide the 360 System and all graphics, end user interfaces, logos, trademarks and other Intellectual Property used and reproduced through the 360 System, including all customizations, versions, Enhancements, Updates and Material Changes thereto. Optic Systems and Optic Systems Associates, as applicable shall own all software code existing prior to provision of the Services, including the 360 System, as well as all software code developed in contemplation, installation, implementation, customization and on-going provision of the Services. Customer recognizes that the 360 System and its components are protected by copyright and other Intellectual Property laws.

8.3. Patent and Trademark Markings; Copyright Notice. Customer shall not remove or alter any trademark, trade name, copyright notice, patent marking or other proprietary notices, legends, symbols, or labels appearing on or in the 360 System or Documentation provided to or delivered to Customer by Optic Systems and shall use the same notices, legends, symbols, or labels in and on any use of the 360 System and Documentation.

8.4. Feedback. Optic Systems has not agreed to and does not agree to treat as confidential any Feedback Customer or End Users provide to Optic Systems, and nothing in these Terms of Service or in the Parties’ dealings arising out of or related to these Terms of Service will restrict Optic Systems’ right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the End User in question. Notwithstanding the provisions of Section 9 below, Feedback will not be considered Confidential Information.

9. CONFIDENTIAL INFORMATION.

9.1. Definition of Confidential Information. The term “Confidential Information” shall mean and include any and all information that is confidential and proprietary to the Party disclosing the information (the “Disclosing Party”), that has been or may hereafter be provided or shown to the Party receiving the information (the “Receiving Party”) including, but not limited to, the following: (i) any document either Party marks “Confidential”; (ii) the Documentation and related materials, whether or not marked or designated confidential; and (iii) any other nonpublic, sensitive information the Receiving Party should reasonably consider a trade secret or otherwise confidential.

9.2. Exclusions from Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the Receiving Party’s possession at the time of disclosure; (ii) is independently developed by the Receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the Receiving Party’s improper action or inaction; or (iv) is approved for release in writing by the Disclosing Party. Customer is on notice that the Confidential Information may include Optic Systems’ valuable trade secrets.

9.3. Nondisclosure. The Receiving Party will not use Confidential Information for any purpose other than in connection with use of the 360 System. The Parties: (i) will not disclose Confidential Information to any employee or contractor of the Receiving Party unless such person needs access to such Confidential Information in order to facilitate the use of the 360 System; and (ii) will not disclose Confidential Information to any third party without the Disclosing Party’s prior written consent. Without limiting the generality of the foregoing, the Receiving Party will protect Confidential Information with the same degree of care it uses to protect its own Confidential Information of similar nature and importance, but with no less than reasonable care. Receiving Party will promptly notify Disclosing Party of any misuse or misappropriation of Confidential Information that comes to the Receiving Party’s attention. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information as required by Applicable Law or by proper legal or governmental authority. Receiving Party will give Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party’s expense.

9.4. Injunctive Relief Available. Customer acknowledges and agrees that due to the unique nature of the Confidential Information being disclosed by Optic Systems, there can be no adequate remedy at law for a breach by the Customer of Customer’s confidentiality obligations under these Terms of Service. Accordingly, and in addition to any other legal or equitable remedies that may be available, Optic Systems may seek and obtain injunctive relief against a breach or threatened breach of Customer’s confidentiality obligations under these Terms of Service.

9.5. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 9.3 above (Nondisclosure) will terminate three (3) years after termination of these Terms of Service; provided that such obligations related to Confidential Information constituting either Party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of these Terms of Service, the Receiving Party will return all copies of Confidential Information to the Disclosing Party or certify, in writing, the destruction thereof.

10. REPRESENTATIONS & WARRANTIES.

10.1. By Optic Systems. Optic Systems represents and warrants that: (i) Optic Systems will use commercially reasonable efforts to provide the 360 System in line with industry practices; (ii) Optic Systems’ grant of the Subscription License under these Terms of Service, and Customer’s access and use of the 360 System is not known to infringe on any Intellectual Property rights of any third parties or otherwise violate any non-compete agreements or any other licenses granted by or contracts of Optic Systems; and (iii) Optic Systems is not aware of any pending, existing or potential claims of patent infringement, copyright infringement, or infringement of any other rights of third parties related to the 360 System.

10.2. By Customer. Customer represents and warrants that: (i) Customer has and will obtain all permissions and consents that are necessary in order to allow Optic Systems to provide the 360 System in accordance with these Terms of Service, including without limit, obtaining all necessary consents, licenses and permissions for Optic Systems to: (a) integrate, access and communicate with Customers System and Software; and (b) grant the Customer Data License of Section 3.2; (ii) Optic Systems shall not use or access, nor allow its End Users to use or access the 360 System in any manner that will infringe any third party Intellectual Property or privacy right; and (iii) Optic Systems’ sharing and use of Customer’s Data as used in line with the requirements of these Terms of Service shall not infringe on any Intellectual Property or privacy right of any third-party.

11. WARRANTY DISCLAIMER. EXCEPT TO THE EXTENT SET FORTH IN SECTION 10 ABOVE, CUSTOMER ACCEPTS THE 360 SYSTEM IS BEING PROVIDED TO CUSTOMER “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, NON-INVASION OF PRIVACY, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING OPTIC SYSTEMS DOES NOT REPRESENT OR WARRANT THAT THE 360 SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR OR COMPLY WITH ALL APPLICABLE LAWS OR THAT THE 360 SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE. OPTIC SYSTEMS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PROVIDER SERVICES OR EQUIPMENT.

12. INDEMNIFICATION.

12.1. Optic Systems IP Indemnification. Optic Systems will defend, indemnify, and hold harmless Customer, its Affiliates, and their respective officers, directors, employees, and agents from all losses, penalties, judgments, suits, costs, claims, liabilities, damages, settlements, and expenses, including reasonable attorneys’ fees and disbursements, arising from a final court order based on: (i) a claim that the authorized use of the 360 System by Customer directly infringes a valid, registered U.S. trademark or copyright; or (ii) a claim that the 360 System (excluding Customer Data or third-party content provided by Customer or its End Users) directly and proximately caused a violation of a third party’s privacy right, solely to the extent caused by the 360 System’s design, or functionality. In the event of any such claim, Optic Systems may, at its discretion: (i) replace the infringing or violative element with non-infringing/non-violative material; (ii) modify the 360 System to avoid infringement or violation without materially reducing functionality; or (iii) obtain a license for continued use. For clarity, this indemnity does not apply to violations of privacy rights caused by Customer Data, End User actions, or Customer’s use of the 360 System. The remedies set forth in this Section 12.1 shall be the sole and exclusive remedies of Customer for claims, allegations, losses, or damages for infringement of any third party’s intellectual property.

12.2. Customer Indemnification. Customer will defend, indemnify, and hold harmless Optic Systems, its Affiliates, and their respective officers, directors, employees, and agents from and against all claims, losses, penalties, judgments, suits, liabilities, damages, settlements, and expenses (including reasonable attorneys’ fees) arising out of or related to: (i) Customer’s or its End Users’ use, misuse, or failure to use the 360 System; (ii) any claim that Customer Data, or content uploaded by Customer or its End Users, infringes or misappropriates a third party’s intellectual property, privacy, or confidentiality rights; (iii) Customer’s failure to obtain necessary permission or authorization to use the 360 System at a particular Property; (iv) any unauthorized disclosure or exposure of personally identifiable information (PII) or private information caused by Customer’s or its End Users’ acts or omissions; (v) Customer’s failure to obtain any necessary rights, licenses, consents, or authorizations for Optic Systems’ use of Customer Data or integrations with Customers System and Software; (vi) violations of Applicable Law by Customer’s use of the Services, including without limitation the CAN-SPAM Act, the Telephone Consumer Protection Act (TCPA), and other communications, privacy, or marketing regulations, as such may be applicable.

13. LIMITATION OF LIABILITY. OPTIC SYSTEMS’ LIABILITY ARISING OUT OF OR RELATED TO CUSTOMER’S USED OF THE 360 SYSTEM SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO OPTIC SYSTEMS DURING THE PREVIOUS TWELVE-MONTH PERIOD UNDER THE APPLICABLE ORDER FORM FOR THE SPECIFIC PROPERTY GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL OPTIC SYSTEMS BE RESPONSIBLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE. THE LIABILITIES LIMITED BY THIS SECTION 13 APPLY TO LIABILITY FOR NEGLIGENCE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; EVEN IF OPTIC SYSTEMS IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 13, OPTIC SYSTEMS’ LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR THE AVOIDANCE OF DOUBT, OPTIC SYSTEMS’ LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS SECTION 13 APPLY LIKEWISE TO OPTIC SYSTEMS ASSOCIATES.

14. GENERAL TERMS AND CONDITIONS. The general terms and conditions of the MSA are hereby incorporated by reference and shall apply to these Terms of Service as if fully set forth herein.