Guard Module Software Agreement

The following terms and conditions (the “Terms and Conditions”) constitute an agreement between Hidden Eyes, LLC, d/b/a Envera Systems (“Envera”) and any Envera client who has elected to receive a Guard Module Software License via an Envera Services Agreement (the “Services Agreement”).

WHEREAS, Client intends to contract for the services of a third party to provide live guard monitoring during hours when Envera is not providing monitoring services under the Services Agreement; and WHEREAS, Client desires to obtain access to the Security System provided by Envera under the Services Agreement for its live guard(s); and WHEREAS, Envera has developed a Guard Module Software program that may be used by Client’s live guard personnel to access the Security System; and WHEREAS, Client seeks a license to use the Guard Module, which license shall be permitted only on hardware owned by Envera, and Envera is agreeable to granting a license under the terms herein; NOW, THEREFORE, in consideration of the promises, covenants and undertakings set forth herein, and for other good and valuable consideration, it is agreed:

  1. RECITALS. The foregoing recitals are true and correct and are hereby incorporated herein.
  2. LICENSE/FEES.
    Subject to the payment of the license fees to Envera as provided in an Envera Services Agreement, Envera grants Client that number of limited, nonexclusive, non-transferrable license(s) identified in such agreement to use Envera’s Guard Module Software program (hereafter “Licensed Program”) on Envera’s Computer Hardware (as hereinafter defined) subject to the terms and conditions contained in these Terms and Conditions.
  3. EQUIPMENT.
    (a) An executable copy of the Licensed Program will be installed on a computer and/or tablet device of Envera’s choosing (the “Computer Hardware”) for each license granted to Client.
    (b) Client acknowledges that the Computer Hardware shall remain the sole property of Envera and that Client is only licensed to use the Computer Hardware during the term of the Services Agreement and in accordance with these Terms and Conditions.
    (c) Use of the Computer Hardware shall be strictly limited to use of the Licensed Program – all other use of the Computer Hardware is strictly prohibited.
    (d) Neither the Licensed Program nor the Computer Hardware is part of the Security System addressed in the Agreement and shall not be considered or treated as part of that system or otherwise governed by the terms of the Services Agreement unless expressly set forth in these Terms and Conditions. .
  4. SCOPE OF RIGHTS. Client may:
    (a) Use and execute the Licensed Program on the Computer Hardware for the sole purpose of obtaining access to the Security System.
    (b) Grant a sublicense to third party live guard personnel – contracted by Client to provide live guard services – on the same terms and conditions included in these Terms and Conditions, which sublicense must be accepted and confirmed in writing and bind the subClient to these Terms and Conditions, including Envera’s right to enforce the Terms and Conditions against said subClient, before the subClient may access or use the Licensed Program or the Computer Hardware.
    (c) Notwithstanding any sublicense granted by Client pursuant to this section, Client shall remain, at all times, responsible for compliance with the Terms and Conditions and for any violations thereof whether by Client and/or its subClients.
    (d) In no event shall Envera owe any obligation or duties to any subClient. Envera’s obligations under the Terms and Conditions shall be for the benefit of Client only.
  5. PROPRIETARY PROTECTION AND RESTRICTIONS.
    (a) Envera shall have sole and exclusive ownership of all right, title, and interest in and to the Licensed Program and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to Client herein by Envera.  Neither the Services Agreement nor these Terms and Conditions provide Client with title or ownership of the Licensed Program or to the Computer Hardware, but only a right of limited use.
    (b) Client must keep the Licensed Program and the Computer Hardware free and clear of all claims, liens, and encumbrances. Client may not use, copy, modify, or distribute the Licensed Program (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Envera.
    (c) Client may not reverse assemble, reverse compile, or otherwise translate the Licensed Program or any other software program found on the Computer Hardware.
    (d) Client’s rights may not be transferred, leased, or assigned. No service bureau work, multiple-user license, or time-sharing arrangement is permitted, except as expressly authorized by Envera.
    (e) Client may not install the Licensed Program in any other computer system or use it at any other location.
    (f) Client may not use the Licensed Program to obtain and/or disseminate confidential information of residents of the Premises in any way.
    (g) If Client uses, copies, or modifies the Licensed Program, or if Client transfers possession of any copy, adaptation, transcription, or merged portion of the Licensed Program to any other party, or if Client uses the Computer Hardware in any way not expressly authorized by Envera, Client’s license is automatically terminated.
    (h) Client hereby authorizes Envera to enter Client’s Premises in order to inspect the Licensed Program in any reasonable manner during regular business hours to verify Client’s compliance with the terms hereof.
    (i) Client acknowledges that, in the event of Client’s breach of any of the foregoing provisions, Envera will not have an adequate remedy in money or damages. Envera shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Envera’s right to obtain injunctive relief shall not limit its right to seek further remedies.
  6. MAINTENANCE, SUPPORT, AND WARRANTY.
    (a) Envera is not the manufacturer of the Computer Hardware or any additional software that may be provided thereon. Envera does not guarantee the workmanship or any aspect of the Computer Hardware.
    (b) In the event that the Computer Hardware, or any portion thereof, malfunctions such that Client is prevented from executing the Licensed Program, Client shall notify Envera immediately. Upon notification, Envera may elect to inspect, and repair if possible, the Computer Hardware or provide replacement hardware. In the event that the malfunction is determined to be the result of user negligence or misuse, either by Client, any subClients/end users, or unauthorized users, the costs of replacing and/or repairing the Computer Hardware shall be the responsibility of Client and paid by Client on the next month’s invoice for the services hereunder. In the event the malfunction is not the result of user negligence or misuse as set forth above, Client’s sole remedy for the period of malfunction shall be a pro rata reduction of the monthly license fee for the license affected.
    (c) THE LICENSED PROGRAM IS PROVIDED ON AN “AS IS” BASIS AND ENVERA MAKES NO WARRANTIES REGARDING THE LICENSED PROGRAM OR THE COMPUTER HARDWARE. ENVERA IS NOT RESPONSIBLE FOR OBSOLESCENCE OF THE LICENSED PROGRAM THAT MAY RESULT FROM CHANGES IN CLIENT’S REQUIREMENTS.
    (d) EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, ENVERA DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE LICENSED PROGRAM, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
  7. LIMITATION OF LIABILITY
    (a) EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, ENVERA SHALL HAVE NO LIABILITY TO CLIENT FOR ANY CLAIMS RELATING TO THE LICENSED PROGRAM OR THESE TERMS AND CONDITIONS, INCLUDING ANY CAUSE OF ACTION SOUNDING IN INFRINGEMENT, CONTRACT, TORT, OR STRICT LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS AND CONDITIONS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. ENVERA SHALL HAVE NO LIABILITY FOR LOSS OF DATA OR DOCUMENTATION, IT BEING UNDERSTOOD THAT CLIENT IS RESPONSIBLE FOR REASONABLE BACKUP PRECAUTIONS.
    (b) IN NO EVENT SHALL ENVERA BE LIABLE FOR ANY LOSS OF PROFITS; ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST CLIENT OR ANY END USER, EVEN IF ENVERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE SERVICES AGREEMENT OR THESE TERMS AND CONDITIONS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
    (c) ENVERA ASSUMES NO RESPONSIBILITY FOR CLIENT’S OR ANY SUBCLIENT OR END USER’S USE OF THE LICENSED PROGRAM OR THE COMPUTER HARDWARE.
    (d) ENVERA IS NOT RESPONSIBLE FOR THE ACTIONS OF ANY PERSON(S) WHO ENTER THE CLIENT’S PREMISES.
    (e) ENVERA SHALL HAVE NO RESPONSIBILITY FOR THE ACTIONS OF ANY SUBCLIENT AND/OR END USER AND THE INDEMNIFICATION OBLIGATIONS SET FORTH IN PARAGRAPH 8 BELOW SHALL EXPRESSLY EXTEND TO AND INCLUDE ANY AND ALL CLAIMS RELATING TO ACTION OR OMMISSION OF ANY SUBCLIENT AND/OR END USER.
  8. INDEMNIFICATION.
    (a) To the extent permitted by law, Client agrees to and shall indemnify, defend and hold harmless Envera, its employees and agents from and against all claims brought by third parties arising out of or relating to these Terms and Conditions. This provision shall apply to all claims whether based upon negligence, active or passive, express or implied contract or warranty, contribution or indemnification.
    (b) Envera shall indemnify, defend and hold harmless Client from and against claims for property damage or personal injury brought by third parties arising SOLELY from a malfunction of the Licensed Program, but not for any claims relating to the entry into the Premises by any third party or any other claims not expressly indemnified hereunder.
    (c) Client hereby waives its right to recovery against Envera for any loss covered by insurance on the Premises or its contents to the extent permitted by any policy or by law.
  9. NO THIRD PARTY BENEFICIARY/WAIVER OF SUBROGATION.
    (a) These Terms and Conditions are made solely and specifically between, and for the benefit of, the parties hereto, and their respective successors and assigns (subject to the express provisions hereof relating to successors and assigns) and no other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of these Terms and Conditions as a third-party beneficiary or otherwise.
    (b) Client shall cause each insurance policy carried by Client insuring Client or the Premises, or any portion or combination thereof, to provide that the insurer waives all rights of recovery by way of subrogation or otherwise against Envera (including all affiliates) in connection with any loss or damages which is covered by such policy or that such policy shall otherwise permit.
  10. TERM OF AGREEMENT; TERMINATION.
    (a) Client’s license of the Licensed Program shall become effective on the Commencement Date established in the Services Agreement.
    (b) The license shall extend for the term of the Services Agreement, unless sooner terminated as provided herein.
    (c) Upon termination or expiration of the Services Agreement, all rights granted to Client will terminate and revert to Envera. Promptly upon termination or expiration of the Services Agreement for any reason or upon discontinuance or abandonment of Client’s possession or use of the Licensed Program, Client must return or destroy, as requested by Envera, all copies of the Licensed Program in Client’s possession (whether modified or unmodified), and all other materials pertaining to the Licensed Program, including the Computer Hardware.
    (d) The provisions of paragraphs 4-9 shall survive the termination of the Services Agreement or of any sublicense granted under these Terms and Conditions for any reason.
  11. MISCELLANEOUS.
    (a) These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of law principles.
    (b) In the event of any litigation or other legal proceeding hereunder, the prevailing party will be entitled to an award of his, her, or its direct, indirect, and/or incidental expensed incurred, including but not limited to, court costs and reasonable attorneys’ fees throughout all negotiations, trials or appeals.
    (c) No modification of these Terms and Conditions shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought.
    (d) Any notices required or permitted under these Terms and Conditions shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed to the party address listed below.
    (e) In the event that any of the terms of these Terms and Conditions is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from these Terms and Conditions and all remaining terms of these Terms and Conditions shall remain in full force and effect.
    (f) In the event of a conflict between the terms of these Terms and Conditions and the Services Agreement, the terms of these Terms and Conditions shall control.