Eyer Subscription Agreement, 

(from date: 24 October 2023)

AGREEMENT between Eyer AS, a company registered under the laws of Norway, with registration number 932 437 252 and registered office at Transistorfaret 24, 1394 Billingstad, Norway (“Eyer”) and (“Customer”)  (jointly the “Parties”)

1. Introduction

This Agreement (“Agreement”) governs the Customer’s utilization of EYER’ Services and Purchased Services as set out in the Agreement and in the Order Form. This Agreement also governs the optional free tier / free trial / Pilot / Proof-of-Concept.

2. DEFINITIONS

"Customer" shall mean the physical person, company or other legal entity/entities for which the Agreement has been entered into and the Order Form has been submitted.

"Order Form/Quote” shall mean the form to be duly filled out and submitted by the Customer in order to purchase or subscribe to any of the products or services offered by EYER. Order Forms shall be deemed incorporated into the Agreement by reference. The Order Forms contain the specifications of the purchased services.

"Purchased Services" shall mean those of EYER’ products or services that the Customer purchases or subscribes to by submitting an Order Form, once the relevant fee or price has been paid. The Purchased Services are specified in the Order Form. Services provided for free (free tier / free trial / Pilot / Proof-Of-Concept) are not to be considered Purchased Services.

"Services" shall mean all EYER products and services that are not Purchased Services, including but not limited to EYER products and services ordered by the Customer for free (free tier / free trial / Pilot / Proof-Of-Concept).

"Users" shall mean individuals who are authorized by the Customer to use the Services or the Purchased Services, and to whom the Customer or EYER upon the Customer’s request have supplied user identifications and passwords. Users may include, inter alia, the Customer’s employees, consultants, agents or contractors.

“Local install” shall mean installation of the Services or Purchased Services in the Customer´s controlled facilities.

“Cloud install” shall mean the install of the Services or Purchased Services in an environment hosted by a third party provider under control of EYER and not as local premise install.

3. Free Tier / Free Trial / Pilot / Proof-Of-Concept

EYER may offer free use of its Services in the form of free tier, free trial, pilot or proof-of-concept. The free use is governed by the terms and conditions in the Order Form / Quote and this Agreement.

All data entered into the Services and all customizations made to the Services by or for the Customer, will be permanently lost at the termination of any free use Services.

The free use Services are provided “as is” without any warranties. Article 8 (Warranties) is thus not applicable for any free use.

4. THE PARTIES RIGHTS AND OBLIGATIONS

4.1. EYER’ rights and obligations

EYER shall provide and make the Purchased Services available to the Customer during the subscription term under the terms and conditions set forth in this Agreement and in the relevant Order Forms / Quote.

EYER shall, furthermore:

(i) provide EYER’ support according to article 9 at no additional charge, and software patches 

(ii) provide the Purchased Services in accordance with applicable laws and regulations, and

(iii) in the case of Cloud install : use all commercially reasonable effort to make the Purchased Services available 24 hours a day, 7 days a week,

Any fault, error or unavailability of the Purchased Services caused by circumstances beyond EYER’ reasonable control shall not constitute a breach of contract, nor justify or provide grounds for remedies for breach of contract (including liability for damages). Such circumstances include but are not limited to: acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), ISP (Internet service provider) failures or delays, or denial of service attacks.

EYER shall not have access to sensitive information about the Customer. All of the Customer’s data otherwise collected by EYER shall be treated according to the laws and regulations in force.

In the case of Cloud install:  Regardless of the obligations described under this clause, EYER reserves the right to perform planned downtime subject to at least 8 hours notice to the Customer. To the extent possible such downtime shall be scheduled during weekends between Friday 6:00 p.m. and Monday 6:00 a.m. local time according to Customer location.

4.2 The Customer’s rights and Obligations.

EYER grants to the Customer through this Agreement a non-exclusive, non-transferable license to use the Services and Purchased Services in accordance with the provisions in the Agreement and the Order Form, in the period the Agreement is in force.

The Customer shall be responsible for User´s compliance with this agreement.

The Customer shall utilize the Purchased Services and/or the Services in accordance with EYER’ instructions and in accordance with applicable laws and regulations.

The Customer has no right to resell, sub-license or in any other way award a third party any right to utilize the Purchased Services or the Services. The Customer shall not permit any third party to access the Purchased Services nor the Services, and shall make reasonable efforts to prevent unauthorized access and use. The Customer undertakes to notify EYER without undue delay in case of such access

The Customer undertakes to use the Services in good faith, and not access the Purchased Services or the Services in order to perform any disloyal and/or illegal behavior, nor to breach any of EYER’ intellectual property right and/or other right over the Purchased Services or the Services.

The Customer agrees that EYER may collect and use technical information collected for support or product improvement purposes.

The Customer further undertakes to provide EYER with sufficient access to the Services or Purchased Services independent of install version to provide support and maintenance.

5. PAYMENT

5.1 General

Fees, prices and payment terms are specified in the Order Forms / Quote.

Payment obligations are not subject to a right of cancellation or withdrawal, and paid fees are non-refundable except for what is covered in this Agreements article 11.4.

5.2 Overdue payment

Overdue fees and prices may at EYER’ discretion accrue default interest at the rate of 2 % per month of the outstanding balance, or the maximum rate permitted by law, whichever is higher, from the due date until payment is effectuated.

If the Customer is 21 days or more overdue on payment obligations under this Agreement or any other agreement regarding EYER products and services, EYER may, without limiting EYER’ other rights and remedies, suspend the provision of the Purchased Services to the Customer until such amounts including interests are paid in full. EYER undertakes to give the Customer at least 7 days’ prior notice that payment is overdue and that suspension of the Services will be carried into effect, before suspending services to the Customer.

EYER shall not exercise their rights under this clause if the payment obligations in question are contested, provided the objections are reasonable and are held in good faith, and the Customer is cooperating to resolve the dispute. If the disagreement is not solved within one week, EYER before mentioned rights are re-established.

5.3 Price adjustments

EYER reserves the right to adjust the fees and prices up to the higher of 3% or trailing 12 months Consumer Price Index for the applicable country. Any adjustments above 3% or trailing 12 months Consumer Price Index requires that the Customer in notified in writing 30 days before the end of the current subscription period.

5.6. Taxes

Unless otherwise stated, EYER’ fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes").The Customer is responsible for paying all Taxes associated with the Customer’s purchases under this Agreement.

If EYER has the legal obligation to pay or collect Taxes for which the Customer is responsible under this item, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides EYER with a valid tax exemption certificate authorized by the appropriate taxing authority.

For clarity, EYER is solely responsible for taxes assessable against it based on EYER’ income, property and employees.

6. INTELLECTUAL PROPERTY RIGHTS (IPR)

EYER shall remain the holder of all intellectual property rights related to the Services and the Purchased Services and the contractual relationship in general, including its present and all future versions thereof. Subject to the limited rights expressly granted hereunder, the Agreement does not constitute a transfer of any intellectual property rights from EYER to the Customer. All intellectual property rights, including but not limited to trade marks, copyright, patents and design, are to remain with EYER.

Utilization of EYER intellectual property, including software, after termination of the Agreement or without a valid subscription is illegal, and will induce liability.

The Customer accepts that EYER at its sole discretion and at its own expense, may establish any patent, design or trade mark, or establish alternative grounds for Intellectual Property Right protection, including as business secrets related to the Services and the Purchased Services. If requested by EYER and it being necessary to obtain such protection, the Customer undertakes to assist and contribute to establishing such protection.

The Customer shall notify EYER in writing of any suspected infringements of EYER intellectual property by third parties and shall inform EYER of any evidence of such infringements.

The Customer thus has no right to create derivative works of, copy, frame, mirror or reverse engineer any part or feature of the Services or Purchased Services provided by EYER.

EYER will from time to time request feedback from the Customer regarding EYER’ Services and Purchased Services. Giving feedback is voluntary. EYER will have the exclusive right to use any suggestions, recommendations or other feedback provided by the Customer, relating to the Services. Such right is royalty-free, worldwide, irrevocable and perpetual.

7. CONFIDENTIALITY

The term “Confidential Information” means any and all information disclosed by any of the Parties verbally, electronically, visually, or in a written or other tangible form that is either identified as, or should be reasonably understood by the recipient party to be confidential, classified or proprietary. Confidential Information includes, but is not limited to, information concerning the Purchased Services, the Services, the Customer’s data, the terms and conditions of the Agreement and all Order Forms, computer programs, software, formulas, all available data, inventions, techniques, technology, technical information, documentation, business plans, marketing plans, strategies, forecasts, information relating to the employees of EYER, third party confidential information and list of Customers.

The Customer shall not under any circumstances disclose any Confidential Information received from EYER to any third party, except legal counsel and accountants, without a written and unequivocal consent, and will take all necessary precautions to avoid unauthorized disclosure and protect against all unauthorized use of the Confidential Information. Disclosed Confidential Information cannot be used for any other purpose than for the purpose for which it was disclosed.

The Customer is entitled to provide information to its employees on a “need to know”-basis. The Customer is regardless of own fault, legally and economically responsible for its employees’ breach of the Agreement, as if the Customer itself committed the breach. The Customer shall at request from EYER provide a list of all of its employees that have been given access to Confidential Information.

The Parties shall use the same degree of care in treating the other party’s Confidential Information, as it does treating its own Confidential Information (but in no event less than reasonable care).

Confidential Information received from EYER shall upon request and under all circumstances at the end of the Agreement, be returned and/or destroyed without delay. EYER may request documentation of such destruction.

The Confidential Information is provided “as-is”, implying that EYER make no warranty of any kind with respect to the suitability, accuracy or non-infringement of third party rights. In no event shall EYER be liable for any special, incidental or consequential damages of any kind, including lost profits, even if advised of the possibility of such damages.

Information that evidently is, or later becomes, well known in the public other than through the Customers breach of this agreement, is exempt from the duty of confidential management. Confidential Information does not include information that was known to a party prior to the disclosure by the other party, nor information received from a third party, provided the information was disclosed without a breach of any obligation owed to the party whose information is disclosed.

The Parties may disclose Confidential Information if compelled by applicable law or regulation, but only that portion of information which, to the extent permitted by the relevant law or regulatory requirement, is legally required to be furnished.

The Customer’s obligations under this Agreement shall continue in full force and effect also after the termination of the Agreement or after the return or destruction of the Confidential Information received.

8. WARRANTIES AND DISCLAIMERS

8.1. EYER Warranties

EYER warrants to have validly entered into this Agreement, and that no third party rights or other restrictions prevent EYER from administering the Services or Purchased Services.

8.2. The Customer’s Warranties

The Customer warrants to have validly entered into this Agreement and to have the legal power to do so.

8.3. Disclaimer

Except as expressly provided in this Agreement, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.

8.4. Test services

EYER may invite the Customer to try a service under development, free of charge. EYER makes no warranties for such services, and these services are provided “as is”. Being these services under development, they may contain errors etc. Such services may be governed by additional terms as provided for the specific service. EYER reserves the right to remove such services at any time.

9. SUPPORT

EYER technical support offers assistance according to the response times set herein. The support service will operate daily from 9:00 to 17:00 (EST for North America and CET for Europe), except on weekends and public holidays.  Support tickets are to be submitted online or by e-mail as instructed by EYER.  

Levels are classified in four categories and defined below.  All reference is made to the Purchased Services:

The Response Time does not start running before the error is reported to the help/support service and Resolution Time when EYER is provided remote access, if required, to investigate the error.

If a Priority Level A error occurs, and EYER does not manage to repair the error within the Response Time set above, the Client may terminate the Agreement, provided the error does not depend on circumstances the Client is liable for.  Refund payment on termination is covered by article 11.4.

10. LIMITATION OF LIABILITY

10.1 Limitation of Liability.

Neither the Customers', EYER's or EYER Authorized Resellers' aggregate liability to the other for all direct losses arising out of or in connection with this Agreement will exceed the amount paid for the preceding year’s subscription.

Neither the Customers', EYERS' or EYER Authorized Resellers' liability with respect to any single incident arising out of or related to the Agreement (whether in contract or tort or under any other theory of liability) shall exceed the lesser of $ 5 000 or the amount paid by the Customer hereunder in the 12 months preceding the incident. The foregoing shall not limit the Customer’s payment obligations under article 5. 

10.2 Exclusion of Consequential and Related Damages.

UNDER NO CIRCUMSTANCES OR LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL EYER OR ITS SUPPLIERS OR AUTHORIZED RESELLERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (EVEN IF EYER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR, EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED WARRANTY PROVISION OF THIS AGREEMENT, FOR ANY OTHER DAMAGES OR LOSSES OF ANY NATURE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.

11. TERM AND TERMINATION

11.1 Term of Agreement.

This Agreement is executed upon submitting the Order Form and remains in force until the subscription has expired or has been terminated.

If the subscription is for a free trial according to article 2, and the Customer does not purchase a subscription before the free trial period expires, the Agreement terminates at the end of the free trial period.  For other free use such as free tier, pilot or proof-of-concept the Agreement terminates according to the Order Form.  If the subscription is for a free tier use EYER has the right to terminate the Agreement any time.

11.2 Term of Subscriptions.

Subscription terms are specified in the Order Form. Unless the Customer has given EYER a written notice of termination at least 30 days before the current subscription expires, or unless otherwise expressly agreed in writing between the parties, the subscription is automatically renewed.

When automatically renewing the subscription, the fee shall be the same as that for the prior term, unless EYER has given the Customer written notice of a price increase in accordance with article 5.3.

11.3. Termination for Cause

A party may terminate this Agreement for cause:

(i)                   upon 30 days written notice to the other party due to a material breach of this Agreement if such breach remains uncured at the expiration of such period, or

(ii)                 if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4 Refund or Payment upon Termination

Upon any termination for cause by the Customer, EYER shall refund the Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination.

In the event of termination for cause by EYER, the Customer is always obliged to pay any amounts outstanding.

12. PROVISIONS APPLICABLE AFTER EXPIRATION OR TERMINATION (article 11)

Section 5 (Payment), 6 (Intellectual Proprietary Rights), 7(Confidentiality), 8.3 (Disclaimer), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 13 (General Provisions) shall survive any termination or expiration of this Agreement.

13. GENERAL PROVISIONS

13.1 Notices

All notices, requests or other communications required or permitted under this Agreement, except for notices of termination or indemnifiable claims, shall be sent to EYER to the following address: support@eyer.ai.

All notices to the Client, including payment-related notices to The Client, shall be sent by e-mail to the relevant contacts designated by the Client.

E-mail shall not be sufficient for notices of termination or indemnifiable claims. Such notices shall be made in writing and sent by registered mail to the address below. 

EYER AS
Transistorfaret 24
N-1396 Billingstad,
Norway

Notices shall be deemed to have been given upon

(i)            personal delivery,

(ii)           the tenth business day after mailing, provided sufficient proof of mailing can be produced,

(iii)           the fifth business day after sending by registered letter, or

(iv)           the first business day after sending by e-mail to the before mentioned addresses,

always provided the procedure from the noticing party is proper and reasonable.

13.2 Governing law and disputes

This Agreement and any matter arising from or in connection with it shall be governed and construed by the following laws based on the location of purchase:

United States: local law

EU, Norway, Iceland, Switzerland, South Africa: local law

Any other country: US law applies

13.3 Anti-Corruption

The parties acknowledge that giving and taking bribes can lead to criminal proceedings, and confirm that neither have received any illegal or improper bribe, kickback, payment, or thing of value from the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

13.4 Independent contractors

The parties are independent contractors, and nothing in this Agreement shall be interpreted as to place the parties in the relationship of employer and employee, principal and agent, partners or joint venture partners etc.

13.5 Waiver

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

13.6 Severability.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the parties undertake to modify or compose a new provision having regard to the objectives and purpose of the Agreement, the original provision and the economic balance of the original provision, to the extent this is possible regarding the court’s decision. All remaining provisions of this Agreement shall remain in effect.

13.7 Modifications

All amendments and modifications to this Agreement shall be made in writing, and signed or electronically confirmed by both parties.

13.8 Entire Agreement

This Agreement and the Order Form/Quote constitutes the entire agreement between the parties and supersedes any and all previous agreement or arrangement between the parties relating to the subject matter hereof.