1.1 “Albers Aerospace Hardware” means the Albers Aerospace cameras or devices, pole, clamps, installation components, and any other physical elements provided by Albers Aerospace that interact with the Embedded Software and the Web Interface to provide the Services.
1.2 “Albers Aerospace IP” means the Services, the Documentation, the Embedded Software, Web Interface, and all intellectual property therein or otherwise provided to Customer and/or its Authorized End Users related to the Services.
1.3. “Aggregated Data” means information that relates to a group or category of individuals, from which any potential individuals’ personal identifying information has been permanently “anonymized” by commercially available standards to irreversibly alter data in such a way that a data subject (i.e., individual person or impersonal entity) can no longer be identified directly or indirectly.
1.4. “Authorized End User(s)” means any individual employees, agents, or contractors of Customer accessing or using the Services through the Web Interface, under the rights granted to Customer pursuant to this Agreement.
1.5 “Customer Data” means the data, media, and content provided by Customer through the Services, including, but not limited to, the Footage.
1.6. “Customer Hardware” means third-party physical elements controlled by Customer that interact with the Albers Aerospace Hardware, Embedded Software, and Web Interface.
1.8 “Documentation” means text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions, and operation of the Services which are provided by Albers Aerospace to Customer in accordance with the terms of this Agreement.
1.9 “Embedded Software” means the software and/or firmware embedded or preinstalled on the Albers Aerospace Hardware.
1.10 “Footage” means still images, video, audio, and other data captured by the Albers Aerospace Hardware or Customer Hardware in the course of and provided via the Services.
1.11 “Services” means the provision, via the Web Interface and Documentation, of Albers Aerospace software applications for automatic license plate detection, alerts, searching image records, video, and sharing Footage, as well as any support services to maintain the Albers Aerospace Hardware and Embedded Software.
1.12 “Spotlight” means the interface which provides real time access to Albers Aerospace Services, location of Albers Aerospace Hardware, alerts, and other integrations.
1.13 “Web Interface” means the website(s) or application(s) through which Customer and its Authorized End Users can access the Services, in accordance with the terms of this Agreement.
2.1 Provision of Access. Subject to all terms of this Agreement, Albers Aerospace grants Customer a limited, non-exclusive, non-transferable, non-sublicensable (except to the Authorized End Users), revocable right to access the features and functions of the Services via the Web Interface during the Term. The Footage will be available for any Authorized End Users to access and download via the Web Interface for thirty (30) days following recording such Footage. Authorized End Users will be required to sign up for an account and select a password and username (“User ID”). Albers Aerospace will also provide Customer with the Documentation to be used in accessing and using the Services. Customer shall be responsible for all acts and omissions of Authorized End Users, and any act or omission by an Authorized End User which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer. Customer shall undertake reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such Authorized End User’s use of the Services and shall cause Authorized End Users to comply with such provisions. Albers Aerospace may use the services of one or more third parties to deliver any part of the Services, (such as using a third party to host the Web Interface for cloud storage or a cell phone provider for wireless cellular coverage) which makes the Services available to Customer and Authorized End Users.
2.2 Embedded Software License. Subject to all terms of this Agreement, Albers Aerospace grants Customer a limited, non-exclusive, non-transferable, non-sublicensable (except to the Authorized End Users), revocable right to use the Embedded Software as installed on the Albers Aerospace Hardware solely as necessary for Customer to use the Services.
2.3 Documentation License. Subject to the terms of this Agreement, Albers Aerospace hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable (except to the Authorized End Users) right and license to use the Documentation during the Term in connection with its use of the Services as contemplated herein.
2.4 Albers Aerospace Hardware. Customer understands that all Albers Aerospace Hardware is owned by Albers Aerospace and that title to any Albers Aerospace Hardware does not pass to Customer upon execution of this Agreement.
2.5 Usage Restrictions.
2.5.1 Permitted Purpose. The permitted purpose for usage of the Albers Aerospace Hardware, Documentation, Services, and Albers Aerospace IP are solely to facilitate gathering evidence that could be used in a lawful criminal investigation (“Permitted Purpose”). Customer will not, and will not permit any Authorized End Users to, use the Albers Aerospace IP, Albers Aerospace Hardware, or Services for any purpose other than the Permitted Purpose.
2.5.2 Albers Aerospace IP. Customer will not, and will not permit any Authorized End Users to, (i) copy or duplicate any of the Albers Aerospace IP; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component of any of the Albers Aerospace IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Albers Aerospace IP; (iii) attempt to modify, alter, tamper with or repair any of the Albers Aerospace IP, or attempt to create any derivative product from any of the foregoing; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Albers Aerospace IP; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Services or Albers Aerospace IP; or (vi) assign, sublicense, sell, resell, lease, rent, or otherwise transfer, convey, pledge as security, or otherwise encumber, Customer’s rights granted in this Agreement.
2.5.2. Albers Aerospace Hardware. Notwithstanding the notice and cure period set for in Section 6.3 (Termination for Material Breach), Customer agrees and understands that in the event Customer is found by Albers Aerospace, in its sole discretion, to engage in any of the restricted actions of this Section, all warranties herein shall be null and void, and this Agreement shall be subject to immediate termination (without opportunity to cure) for material breach by Customer.
2.6 Retained Rights, Ownership. As between the Parties, subject to the rights granted in this Agreement, Albers Aerospace and its licensors retain all right, title, and interest in and to the Albers Aerospace IP and Albers Aerospace Hardware, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Albers Aerospace retains the right to use the foregoing for any purpose in Albers Aerospace sole discretion. There are no implied rights.
2.7.1 Service Suspension. Notwithstanding anything to the contrary in this Agreement, Albers Aerospace may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Albers Aerospace IP or Albers Aerospace Services if Albers Aerospace reasonably determines that (a) there is a threat or attack on any of the Albers Aerospace IP by Customer; (b) Customer’s or any Authorized End User’s use of the Albers Aerospace IP disrupts or poses a security risk to the Albers Aerospace IP or any other customer or vendor of Albers Aerospace; (c) Customer or any Authorized End User is/are using the Albers Aerospace IP for fraudulent or illegal activities; (d) Customer has violated any term of this Agreement, including, but not limited to, utilizing the Services for anything other than the Permitted Purpose (“Service Suspension”). Customer shall not be entitled to any remedy for the Service Suspension period, including any reimbursement, tolling, or credit.
2.7.2 Service Interruption. Services may be interrupted in the event that: (a) Albers Aerospace provision of the Services to Customer or any Authorized End User is prohibited by applicable law; (b) any third-party services required for Services are interrupted; (c) if Albers Aerospace reasonably believe Services are being used for malicious, unlawful, or otherwise unauthorized use; (d) there is a threat or attack on any of the Albers Aerospace IP by a third party; or (e) scheduled or emergency maintenance (“Service Interruption”). Albers Aerospace will make commercially reasonable efforts to provide written notice of any Service Interruption to Customer and to provide updates regarding resumption of access to Albers Aerospace Services. Albers Aerospace will use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Interruption is cured. Albers Aerospace will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized End User may incur as a result of a Service Interruption. To the extent that the Service Interruption is not caused by Customer’s direct actions or by the actions of parties associated with the Customer, the expiration of the Term will be tolled by the duration of the Service Interruption (for any continuous suspension lasting at least one full day) prorated for the proportion of cameras on the Customer’s account that have been impacted. For example, in the event of a Service Interruption lasting five (5) continuous days, Customer will receive a credit for five (5) free days at the end of the Term.
2.8.1 Albers Aerospace’s Setup Obligations. Albers Aerospace shall provide Customer with standard optimal setup specifications to assist Customer in installing the Albers Aerospace Hardware (“Optimal Setup Guidelines”). Albers Aerospace does not provide tailored information regarding the specific location or positioning related to Customer’s unique instillation needs. Albers Aerospace does not restrict Customer’s instillation of the Albers Aerospace Hardware, other than as set out in the Optimal Setup Guidelines. Albers Aerospace shall have no liability to Customer resulting from any poor performance, functionality, or Footage and Albers Aerospace shall have no obligation or liability regarding any modifications or reinstalls of the Albers Aerospace Hardware. Albers Aerospace shall have no liability to Customer for claims by third parties related to the Services, including, but not limited to, any claims by third parties for damages due to improper setup.
2.8.2 Customer Setup Obligations. Customer shall follow the Optimal Setup Guidelines in full and install the Albers Aerospace Hardware in a workmanlike manner. Customer is solely responsible for (i) any permits or associated costs, and managing the permitting process of installation of cameras or power; (ii) any federal, state, or local taxes including property, license, privilege, sales, use, excise, gross receipts, or other similar taxes which may now or hereafter become applicable to, measured by or imposed upon or with respect to the installation of the Albers Aerospace Hardware, its use (excluding tax exempt entities), or (iii) any other supplementary cost required to install and maintain the Albers Aerospace Hardware. Customer represents and warrants that it has, or shall lawfully obtain, all necessary right title and authority to install the Albers Aerospace Hardware and to make any necessary inspections or tests in connection with such installation.
2.8.3 Return/Removal of Albers Aerospace Hardware. Albers Aerospace Hardware shall remain the personal property of Albers Aerospace and will be returned to Albers Aerospace upon the natural expiration of this Agreement at no additional cost to Customer. If Hardware is not returned within thirty (30) days of termination or natural expiration, in working condition, Customer will be charged $1500 for the restocking of Albers Hardware. Customer shall not perform any acts which would interfere with the retention of title of the Albers Aerospace Hardware by Albers Aerospace. Should Customer default on any payment of the Services, Albers Aerospace may remove Albers Aerospace Hardware at Albers Aerospace’s discretion. Such removal, if made by Albers Aerospace, shall not be deemed a waiver of Albers Aerospace’s rights to any damages Albers Aerospace may sustain because of Customer’s default and Albers Aerospace shall have the right to enforce any other legal remedy or right.
2.9 Upgrades. Albers Aerospace may, in its sole discretion, make any upgrades it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of the Services, (b) the competitive strength of, or market for, the Services, (c) such platform or system’s cost efficiency or performance, or (ii) to comply with applicable law. Parties understand that such upgrades are necessary from time to time and will not materially change any terms or conditions within this Agreement.
3.1 Customer Obligations. Albers Aerospace will assist Customer’s Authorized End Users in the creation of a User ID. Customer agrees to provide Albers Aerospace with accurate, complete, and updated registration information. Customer may not select as its User ID a name that Customer does not have the right to use, or another person’s name with the intent to impersonate that person. Customer may not transfer their account to anyone else without prior written permission of Albers Aerospace. Customer will not share its account or password with anyone and must protect the security of its account and password. Customer is responsible for any activity associated with its account. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services. Customer will, at its own expense, provide assistance to Albers Aerospace, including, but not limited to, by means of access to, and use of, Customer facilities, as well as by means of assistance from Customer personnel to the limited extent any of the foregoing may be reasonably necessary to enable Albers Aerospace to perform its obligations hereunder.
3.2 Customer Representations and Warranties. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and all applicable laws and regulations, including but not limited to any laws relating to the recording or sharing of video, photo, or audio content. Although Albers Aerospace has no obligation to monitor Customer’s use of the Services, Albers Aerospace may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
4.1 Confidentiality. To the extent allowable by applicable FOIA and state-specific Public Records Acts, each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Albers Aerospace includes non-public information regarding features, functionality, and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Albers Aerospace or collected by Albers Aerospace via the Albers Aerospace Hardware or Customer Hardware, to enable the provision of the Services, which includes but is not limited to geolocation information and environmental data collected by sensors. The Receiving Party agrees: (i) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the Party takes with its own proprietary information, but in no event will a Party apply less than reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. Albers Aerospace’s use of the Proprietary Information may include processing the Proprietary Information to send Customer alerts, or to analyze the data collected to identify motion or other events. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. For clarity, Albers Aerospace may access, use, preserve and/or disclose the Footage to law enforcement authorities, government officials, and/or third parties, if legally required to do so or if Albers Aerospace has a good faith belief that such access, use, preservation or disclosure is reasonably necessary to: (a) comply with a legal process or request; (b) enforce this Agreement, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of Albers Aerospace, its users, a third party, or the public as required or permitted by law, including respond to an emergency situation. Albers Aerospace may store deleted Footage to comply with certain legal obligations, but such retained Footage will not be retrievable without a valid court order.
4.2 Customer Data. As between Albers Aerospace and Customer, all right, title and interest in the Customer Data, belong to, and are retained solely by, Customer. Customer hereby grants to Albers Aerospace a limited, non-exclusive, royalty-free, worldwide license to (i) use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Albers Aerospace to provide the Services to Customer and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify, display, and distribute the Customer Data as a part of the Aggregated Data, (ii) disclose the Customer Data (inclusive of any Footage) to enable law enforcement monitoring for elected law enforcement hotlists, as well as provide Footage search access to law enforcement for investigative purposes only, and (iii) obtain Aggregated Data as set forth in Section 4.4 (Aggregated Data). As between Customer and law enforcement that have prescribed access to Footage by Customer, both share all right, title, and interest in the Customer Data. Albers Aerospace will automatically permanently delete Footage older than thirty (30) days. Customer has a thirty (30) day window to view, save and/or transmit Footage prior to its deletion. Albers Aerospace does not own and shall not sell Customer Data.
4.3 Feedback. If Customer provides any suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the subject matter hereunder, Customer hereby assigns (and will cause its agents and representatives to assign) to Albers Aerospace all right, title and interest (including intellectual property rights) with respect to or resulting from any of the foregoing.
4.4 Aggregated Data. Albers Aerospace shall have the right to collect, analyze, and anonymize Customer Data to create Aggregated Data to use and perform the Services and related systems and technologies, including the training of machine learning algorithms. Customer hereby grants Albers Aerospace a non-exclusive, worldwide, perpetual, royalty-free right (during and after the Term hereof) to use and distribute such Aggregated Data to improve and enhance the Services and for other development, diagnostic and corrective purposes, other Albers Aerospace offerings, and crime prevention efforts. Parties understand that the aforementioned license is required for continuity of Services. No rights or licenses are granted except as expressly set forth herein. Albers Aerospace does not sell Aggregated Data.
5.1 Service Fees. Customer shall pay Albers Aerospace the service fees for the Initial Term on or before the 15th day from the date of invoice. For any Renewal Terms, Customer shall pay invoice on or before the 30th day from the date of renewal invoice. All service fees paid under this Agreement, including fees related to the Initial Term and any Renewal Terms, are collectively referred to as the “Service Fees.”
5.2 Notice of Changes to Fees. Albers Aerospace reserves the right to change the fees or applicable charges and to institute new charges and fees on subsequent terms by providing sixty (60) days’ notice prior to the end of such Initial Term or Renewal Term (as applicable) to Customer (which may be sent by email).
5.3 Invoicing, Late Fees; Taxes. Invoice payments must be received by Albers Aerospace within fourteen (14) days after the receipt of invoice. If Customer is a non-tax-exempt entity, Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Albers Aerospace’s net income. If Customer believes that Albers Aerospace has billed Customer incorrectly, Customer must contact Albers Aerospace no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Customer acknowledges and agrees that a failure to contact Albers Aerospace within this sixty (60) day period will serve as a waiver of any claim Customer may have had because of such billing error.
6.1 Term. The initial term of this Agreement shall be for the period of time set forth on the Order Form (the “Term”). In the event the Order Form is silent as to the length of time, the default Term shall be two years. Following the Term, unless otherwise indicated on the Order Form, this Agreement will automatically renew for successive renewal terms of the greater of two years or the length set forth on the Order Form (each, a “Renewal Term”) unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
6.2 Termination for Convenience by Albers Aerospace. At any time during the agreed upon Term, Albers Aerospace may terminate this Agreement for convenience upon thirty (30) days prior written notice. Upon termination for convenience by Albers Aerospace, Albers Aerospace will refund to Customer a pro-rata portion of the pre-paid fees for Services not received due to such termination.
6.3 Termination for Material Breach. Notwithstanding the termination provisions in Section 2.5.2 (Albers Aerospace Hardware), in the event of any Material Breach of this Agreement, the non-breaching Party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach prior to the expiration of such thirty (30) day period. Either Party may terminate this Agreement, without notice, (i) upon the institution by or against the other Party of insolvency, receivership, or bankruptcy proceedings, (ii) upon the other Party’s making an assignment for the benefit of creditors, or (iii) upon the other Party’s dissolution or ceasing to do business. Upon termination for Albers Aerospace’s material breach, Albers Aerospace will refund to Customer a pro-rata portion of the pre-paid fees for Services not received due to such termination.
6.4 Survival. The following Sections will survive termination: 2.5 (Usage Restrictions), 2.6 (Retained Rights; Ownership), 2.8.3 (Return/Removal of Albers Aerospace Hardware), 3 (Restrictions and Responsibilities), 4 (Confidentiality; Customer Data), 5 (Payment of Fees), 6.4 (Survival), 7.3 (Warranty), 7.4 (Disclaimer), 8 (Limitation of Liability; Indemnification), and 9 (Miscellaneous).
7.1 Remedy. Upon a malfunction or failure of Albers Aerospace Hardware or Embedded Software (a “Defect”), Customer must notify Albers Aerospace. If Albers Aerospace is unable to correct the Defect, Albers Aerospace shall replace the Albers Aerospace Hardware or Embedded Software suffering from the Defect. Albers Aerospace reserves the right in their sole discretion to refuse or delay replacement or its choice of remedy for a Defect until after it has inspected and tested the affected Albers Aerospace Hardware provided that such inspection and test shall occur within a commercially reasonable time, but no longer than seven (7) business days after Customer notifies the Albers Aerospace of a known Defect. In the event of a Defect, Albers Aerospace will repair or replace the defective Albers Aerospace Hardware at no additional cost to Customer. Absent a Defect, if Albers Aerospace Hardware is lost, stolen, or damaged, Customer may request that Albers Aerospace replace the Albers Aerospace Hardware at a fee according to the then-current Reinstall policy. Customer shall not be required to replace subsequently lost, damaged or stolen Albers Aerospace Hardware, however, Customer understands and agrees that functionality, including Footage, will be materially affected due to such subsequently lost, damaged or stolen Albers Aerospace Hardware and that Albers Aerospace will have no liability to Customer regarding such affected functionality nor shall the Usage Fee or Implementation Fees owed be impacted. Albers Aerospace is under no obligation to replace or repair Customer acquired Hardware.
7.2 Exclusions. Albers Aerospace will not provide the remedy described in Section 7.1 (Remedy) if Customer has misused the Albers Aerospace Hardware or Service in any manner, or if the Customer is currently in Material Breach of this Agreement.
7.3 Warranty. Albers Aerospace shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Albers Aerospace or by third-party providers, or because of other causes beyond Albers Aerospace’s reasonable control, but Albers Aerospace shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.4 Disclaimer. THE REMEDY DESCRIBED IN SECTION 7.1 (REMEDY) IS CUSTOMER’S SOLE REMEDY, AND ALBERS AEROSPACE’S SOLE LIABILITY, WITH RESPECT TO DEFECTIVE ALBERS AEROSPACE HARDWARE OR EMBEDDED SOFTWARE. ALBERS AEROSPACE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND ALBERS AEROSPACE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.1 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ALBERS AEROSPACE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL HARDWARE AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY, INCOMPLETENESS OR CORRUPTION OF DATA OR FOOTAGE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ALBERS AEROSPACE’S ACTUAL KNOWLEDGE OR REASONABLE CONTROL INCLUDING REPEAT CRIMINAL ACTIVITY OR INABILITY TO CAPTURE FOOTAGE OR IDENTIFY AND/OR CORRELATE A LICENSE PLATE WITH DATABASES; (D) FOR ANY PUBLIC DISCLOSURE OF PROPRIETARY INFORMATION MADE IN GOOD FAITH; (E) FOR CRIME PREVENTION; OR (F) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID AND/OR PAYABLE BY CUSTOMER TO ALBERS AEROSPACE FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT OR OMISSION THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ALBERS AEROSPACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Responsibility. Each Party to this Agreement shall assume the responsibility and liability for the acts and omissions of its own employees, deputies, officers, or agents, in connection with the performance of their official duties under this Agreement. Each Party to this Agreement shall be liable (if at all) only for the torts of its own officers, agents, or employees.
8.3 Indemnification. Customer shall defend, indemnify and hold Albers Aerospace, and Albers Aerospace’s directors, officers, employees, and agents (collectively, the “Albers Aerospace Indemnitees”) harmless from and against any and all claims, actions, damages, expenses (including reasonable attorneys’ fees), losses or liabilities incurred by or asserted against the Albers Aerospace Indemnitees for injury (including death) to persons or damage or destruction to property and any and all fees, costs or penalties incurred by Albers Aerospace Indemnitees, provided that Customer shall not be required to indemnify the Albers Aerospace Indemnitees for any loss or claim to the extent such loss or claim is due to the negligence or willful misconduct of the Albers Aerospace Indemnitees.
9.1 Compliance with Laws. The Customer agrees to comply with all applicable local, state, and federal laws, regulations, policies and ordinances and their associated record retention schedules, including responding to any subpoena request(s). In the event Albers Aerospace is legally compelled to comply with a judicial order, subpoena, or government mandate, to disclose Customer Data, Albers Aerospace will provide Customer with notice.
9.2 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
9.3 Assignment. This Agreement is not assignable, transferable, or sublicensable by Customer, without prior consent.
9.4 Entire Agreement. This Agreement, together with the Order Form(s), Optimal Setup Guidelines, and any other referenced documents or addenda are the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. None of Customer’s purchase orders, authorizations or similar documents will alter the terms of this Agreement, and any such conflicting terms are expressly rejected. In the event of any conflict of terms found in this Agreement or any other terms and conditions, the terms of this Agreement shall prevail. Terms and Conditions are herein subject to change.
9.5. Special Terms. From time to time, Albers Aerospace may offer certain special terms related to guarantees, services, and support which are indicated in the proposal and on the Order Form and will become part of this Agreement, upon Customer’s prior written consent (“Special Terms”). To the extent that any terms of this Agreement are inconsistent or conflict with the Special Terms, the Special Terms shall control.
9.6 Relationship. No partnership, joint venture, or employment is created because of this Agreement and Customer does not have any authority of any kind to bind Albers Aerospace in any respect whatsoever. Albers Aerospace shall always be and act as an independent contractor.
9.7 Governing Law; Venue; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without reference to the choice of law principles. Any action or proceeding by either of the parties to enforce this Agreement shall be brought only in courts in Collin County, Texas and the United States District Court for the Easter District of Texas. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue. The Parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement.
9.8 Publicity. Albers Aerospace has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in business and development and marketing efforts, including without limitation on Albers Aerospace’s website.
9.9 Export. Customer may not remove or export from the United States or allow the export or re-export of the Albers Aerospace IP or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign Customer or authority. As defined in Federal Acquisition Regulation (“FAR”), section 2.101, the Services, the Albers Aerospace Hardware and Documentation are “commercial items” and according to the Department of Defense Federal Acquisition Regulation (“DFAR”) section 252.2277014(a)(1) and are deemed to be “commercial computer software” and “commercial computer software documentation.” Albers Aerospace is compliant with FAR Section 889 and does not contract or do business with, use any equipment, system, or service that uses the enumerated banned Chinese telecommunication companies, equipment, or services as a substantial or essential component of any system, or as critical technology as part of any Albers Aerospace system. Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
9.10 Headings. The headings are merely for organization and should not be construed as adding meaning to the Agreement or interpreting the associated sections.
9.11 Force Majeure. Parties are not responsible or liable for any delays or failures in performance from any cause beyond their control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, supply chain shortages of equipment or supplies, weather conditions, pandemics/epidemics or other public health crises, acts of hackers, internet service providers or any other third party acts or omissions.