Terms & Conditions
Updated 2/5/2025
Introduction
These terms and conditions, together with the Order Form constitute the entire “Agreement” between the parties. This Agreement shall govern Customer’s purchase of the Services as defined in the Order Form from Augmented Reality Concepts, LLC or its affiliates (“Impel”). To the extent any terms of this Agreement conflict with the terms of an applicable Order Form, the terms of the applicable Order Form shall control. Wherever used in this Agreement, “you” or “Customer” means the person or legal entity accessing or using the Services. For the avoidance of doubt, if you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, “Customer” means the company or other legal entity that you are using the Services on behalf of.
By purchasing, accessing or using the Services offered by Impel, as set out in the Order Form, you are confirming that you have read, understand and accept Agreement. This Agreement can be updated from time to time in accordance with Section 21 below. You are responsible for regularly reviewing the most recent version of this Agreement, which is published at: https://impel.ai/terms-conditions/. When Impel changes this Agreement, Last Modified date above will be updated.
By purchasing, accessing or using the Services, you confirm that:
- You will only use the Services for business and professional reasons;
- You accept and will comply with this Agreement; and
- You are responsible for anyone that uses the Services through your account (“Authorized Users”), which may include your employees, consultants or contractors, or the employees, consultants or contractors of your Affiliates.
1. License. Subject to the terms and conditions of the Agreement, Impel shall grant the Customer limited, a non-exclusive and non-transferable (except as permitted by this Agreement) and non-sublicensable right to access and use, and permit the Authorized Users to access and use the Services, for internal purposes. If permitted in the Order Form, Authorized Users may include a third-party business, entity, or organization that is a customer, vendor, or affiliate of Customer, and such third party’s employees or agents. For the purposes of this Agreement, an “affiliate” of a party means any corporation or other entity which controls, is controlled by, or is under common control with such party, wherever located in the world.
2. License Restrictions. Customer may not do any of the following, nor may Customer permit any Authorized User or any third party to do any of the following: (a) resell any content created by the use of or resulting from the Services (b) exceed the limited license rights granted in this Agreement including, without limitation, the sharing of passwords or other login credentials with those not given explicit rights to access and view the Services under this Agreement; (c) remove any proprietary notices, labels, or marks from the Services; (d) sell, transfer, lend, lease, license, or sublicense the Services; (e) copy, distribute, modify, or otherwise create derivative works of the Services or any content therein; (f) circumvent any digital rights management or copyright management protection associated with the Services; (g) translate, reverse engineer, decompile or disassemble the Services; (h) use any manual or automated software, bots, devices, scripts, robots, or other means to access, “scrape,” “crawl,” or “spider” any web pages or data contained in the Services; or (i) falsely state, impersonate, or otherwise misrepresent any information relevant to your use of the Services. During the term of the Agreement, Impel may, in Impel’s sole discretion, audit your, and your Authorized Users’, use of the Services to ensure compliance with this Agreement.
3. Impel Responsibilities.
- Service Level. During the term, subject to the terms of this Agreement, Impel will provide the Services to you in accordance with the applicable Order Form and the Service Level Agreement published at www.impel.ai/service-level-agreement.
- Technical Support. Impel will provide Customer with unlimited free technical support. Customer’s technical support line is in operation between the hours of 9 am and 5 pm (ET) Monday – Friday, excepting U.S. holidays.
- Updates. The Services evolve constantly. Provided that Impel does not breach the warranty set out in Section 13, Impel may change the Services (such as by changing, adding or removing features) at any time, for any reason, and may or may not provide notice of those changes to you.
4. Customer Responsibilities.
- Use of Services. Customer shall use the Services: (i) in support of Customer’s business purposes, (ii) only for vehicles that are owned by Customer and located at the Location(s) specified in the Order Form and for no other vehicles or goods whatsoever, (iii) for the term of the Agreement, and (iv) in accordance with this Agreement. For the purposes of this Agreement, “vehicle” shall not exclusively mean automotive vehicles, but shall include all machines designed for transporting people or goods, including for powersport and aquatic uses.
- Equipment; Hardware. Customer shall be responsible for obtaining and maintaining all hardware, software, communications equipment and network infrastructures required to access and use the Services. Any hardware purchased by Customer from Impel is covered by the manufacturer’s warranty, if any, and not by Impel. Impel shall not be held liable to Customer for any defects or flaws in hardware. Any issues with hardware are to be resolved by the manufacturer and not Impel.
- Accounts. Impel shall issue to Customer, or shall authorize a Customer administrator to issue, a password for each Authorized User to use Customer’s account. You are responsible for maintaining the confidentiality of all usernames and passwords and for ensuring that each username and password is used only by the appropriate Authorized User. Customer is solely responsible for any and all usage of the Services resulting from access through any Authorized User’s username and password. Customer shall promptly notify Impel of any unauthorized use of Customer’s account (including each password of each user accessing the Services by means of Customer’s account) or any other breach of security known to Customer.
- Acceptable Use. Customer and its Authorized Users must comply with the Acceptable Use Rules (published at https://impel.ai/acceptable-use-policy/) and all applicable laws. If you or any of your Authorized Users do not comply with the Acceptable Use Rules or any applicable laws, Impel may remove or disable any violating content transmitted via the Services or temporarily suspend or restrict your access to the Services without prior notice. In such case, we will then notify you and, where applicable, will work with you in good faith to resolve the issue.
5. Customer Data.
- Customer Data. Customer shall provide and/or upload all necessary information, content, or materials that Customer and/or its Authorized Users submit to or through the Service (“Customer Data”) to Impel to enable Impel to perform the Services, and depending on the Service(s) used by Customer, may include (i) photographs, videos, information and other copy or data, and all derivatives and transformations thereof, from Customer’s own vehicles and the relevant vehicle manufacturers with whom Customer has an agreement (each, an “OEM”), (ii) items obtained from the OEM directly, or from the OEM’s websites and other publicly displayed areas on the Internet and otherwise, to be used in any content created or displayed by, for, or on behalf of Customer, and (iii) any content, data, or information that Customer authorizes Impel to use or obtain as part of the Services pursuant to this Agreement. Customer is solely responsible for Customer Data. Impel have no obligation or responsibility to review, filter, block or remove Customer Data.
- Ownership and Use. Customer retains ownership of its Customer Data. Customer hereby grants to Impel and its relevant service providers a worldwide, limited, nonexclusive, license to access, store, reproduce, handle, perform, transmit, test, modify, process, combine with other data, distribute, display and otherwise use the Customer Data (i) to provide, maintain, operate, and update the Services and to provide support for the Services; (ii) to prevent or address service, security, support or technical issues; and (iii) as required by Applicable Law.
6. Implementation. Impel will perform certain implementation services (“Implementation Plan”), if any, as of the Effective Date and for a period of 60 days. (“Implementation Period”). Each of Impel and Customer will fulfill its respective obligations under the Implementation Plan and will cooperate with the other to permit the timely performance thereunder. Impel’s obligations under the Implementation Plan are contingent upon Customer’s full and timely performance of its obligations, Customer’s reasonable cooperation and any assumptions included in the Order Form or otherwise communicated by Impel to Customer. All dates and fees under the Implementation Plan are estimates made for project planning purposes only. Any changes to the scope of the Implementation Plan shall become effective only upon the execution of a written amendment by authorized representatives of Impel and Customer.
7. Product Specific Terms. Product specific terms are available at www.impel.ai/impel-services-rider which is incorporated by reference into the Agreement and which may be modified from time to time in Impel’s sole discretion. Any such modifications will not affect a material reduction in the Services in an applicable Order Form.
8. Fees.
- Fees. Customer will pay all fees as and when described in the Order Form.
- Discounts. Any discounts, concessions or accommodation applied to service bundles shall only be considered earned and in effect if the Customer is current and in good standing and does not apply to any renewal of an applicable Order Form. If a Customer cancels any one of the services bundled in an Order Form, Impel has the right to cancel the applied discount and invoice the full price listed on the Order Form for the remaining services.
- Invoicing. Impel will invoice you for the fees in the currency set forth on the applicable Order Form. Impel will invoice you the fees set out in the Order Form on the date that is either (i) the start of the Initial Subscription Term for Service(s) or bundle; or (ii) for the full Order Form fee as of the end of the Implementation Period, whichever is earliest. Unless otherwise stated on the Order Form, all undisputed invoices are payable within the period set out in the applicable Order Form. Any disputed amounts will not affect payment of non-disputed amounts. You will make payments to the entity and address set forth in the invoice. Except as provided elsewhere in this Agreement, payment obligations are non-cancellable and all fees paid by Customer are non-refundable.
- Payment Processing. Impel may use a third party payment service for billing through an online account or by pre-approved credit card of ACH debits (specific remittance information will be provided in the Order Form). By submitting payment account information, Customer authorizes Impel to initiate debits to Customer’s checking or savings account indicated at Customer’s depository financial institution and to debit the same to such account. Customer hereby grants Impel the right to store and process such information with the third party payment service and agrees that Impel will not be responsible for any failures of the third party, including any failure to adequately protect such information. Such authorizations shall continue and shall remain in full force and effect until cancellation, termination or expiration of this Agreement and Customer agrees to execute and provide to Impel all authorizations and other documents necessary to affect the foregoing payments. The processing of payments will be subject to the terms, conditions and privacy policies of such third-party payment service in addition to this Agreement. Full payment for invoices issued in any given month must be received by Impel within thirty (30) days after the mailing date of the invoice.
- Late Payment. If any undisputed amounts invoiced are not received by Impel by the due date, then, at Impel’s discretion, such charges may accrue late interest at the lower of: (a) the rate of 12% per year; or (b) the maximum rate permitted by law from the date such payment was due until the date paid. In addition, upon thirty (30) days’ written notice to you provided after the due date of any undisputed amount, Impel may suspend your access to the Services if Impel has not received the amounts invoiced in full.
- Taxes. You are responsible for paying all taxes, assessments, charges, fees, and levies that may be levied on or applicable to the sale or license of goods or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, customs duties, and assessments, together with any installments and any interest, fines, and penalties with respect thereto, imposed by any governmental authority, including federal, state, provincial, municipal, and foreign governmental authorities (“Taxes”) associated with your subscription to, use or delivery of the Services, which for clarity does not include any taxes based on Impel’s income.
9. Third Party Applications.
- Data Sources. The Services may require access by Impel to the applications, systems, data, or databases of third parties with whom Customer has a direct contractual relationship and who provide Customer services or otherwise process information on Customer’s behalf (“Data Sources”). You are solely responsible for procuring for Impel the right and permission for Impel to access and connect with Data Sources on your behalf. Customer acknowledges and agrees that Impel is not responsible or liable for the acts, omissions, or conduct of any Data Source. Customer represents and warrants, now and for the duration of this Agreement, that: (a) Customer owns all right, title, and interest in and to any information or data Impel accesses or receives via a Data Source, including any consumer data (“Sourced Data”); (b) Customer is authorized by each Data Source to allow and authorize Impel to access, use, transmit, download, copy, and process any Data Source information or systems, as contemplated by this Agreement; (c) Customer has all rights, permissions, and authority necessary, with respect to the Data Source, to itself engage in the conduct and actions Impel will be engaging in as part of providing the Services; and (d) Impel’s performance of its obligations hereunder will not violate any agreement between Customer and any Data Source or any applicable laws. Impel may deny Customer access to Sourced Data, in whole or part, at any time, without notice, and with no further liability to Customer, if a Data Source terminates or withdraws the permissions necessary for Impel to supply the Sourced Data to Customer. Customer shall indemnify, defend, and hold harmless Impel, its affiliates, officers, directors, employees, agents, and contractors, from and against any and all losses, claims, liabilities, damages, and expenses (including attorneys’ fees) relating to or arising out of any claim by any Data Source that Impel’s provision of the Services, or access or use of any Sourced Data retrieved or originating from such Data Source, infringes upon, misappropriates, or violates any intellectual property or proprietary right of such third party, violates any agreement between Customer and such Data Source, or otherwise violates applicable laws.
- Third Party Data. The Services may allow access to data, information, or services disseminated by outside data sources and Customer acknowledges that Impel and its suppliers and licensors disclaim responsibility for the use, content, accuracy, timeliness, completeness or availability of such third-party data information or services and make no warranty concerning such information. CUSTOMER USES SUCH THIRD-PARTY DATA, INFORMATION, OR SERVICES AT ITS OWN RISK.
10. Term; Termination.
- Term. The Agreement shall become effective and binding upon the Customer on the date of execution by Impel as in the Order Form (“Effective Date”) and shall continue for the initial term as stated therein, unless earlier terminated in accordance with the Agreement. Thereafter, the Agreement will be extended automatically for periods of time equivalent to the initial term or the then-current renewal term at Impel’s then-current prices and subject to the terms of this Agreement, unless the Agreement is cancelled in writing at least ninety (90) days prior to the expiration of the initial term or the then-current renewal term. Following the Effective Date, Customer may add additional Products to Customer’s subscription package included in such Agreement (“Added Products”). Any such Added Products will be subject to the terms and conditions of the existing Agreement and the term of such Added Products will run coterminous with the Initial Subscription Term, provided, however, that the fee for such Added Products will be prorated such that Customer will begin to incur Fees for such Added Products as of the effective date of the subsequent Order Form.
- Termination. The authorized representative of a party as per the Order Form may terminate this Agreement with immediate effect upon written notice to the other party if: (i) the other party materially breaches any term or condition of this Agreement that is not capable of remedy, or if the breach is capable of remedy, has not been cured by the breaching party within thirty (30) days after its receipt of notice of such breach; or (ii) if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, or if the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, and such petition or proceeding is not dismissed within sixty (60) days of filing. Upon termination or expiration of this Agreement, Customer shall pay all charges and out-of-pocket expenses that are due and have been accrued through the date of termination or expiration.
- Effect of Termination. Expiration or termination of this Agreement shall immediately terminate all subscription, access and any other rights granted to Customer herein. Upon the expiration or termination of this Agreement, except as otherwise provided herein, Impel will have no further obligations to Customer, and will have no obligation to maintain, deliver or provide access to any Services. Upon the expiration or termination of this Agreement Impel may, at Customer’s reasonable request, provide transition assistance services at reasonable rates mutually agreed to by the parties, for a period of up to ninety (90) days after the termination effective date. Notwithstanding the foregoing, upon request by Customer to transfer any conversational data to a new provider, Impel reserves the right to charge a fee equivalent to at least 3x the monthly recurring fees at the time of termination. The parties’ respective obligations hereunder which by their nature would continue beyond the termination or expiration of this Agreement shall survive – for example, those sections of this Agreement titled, “Confidentiality,” “Intellectual Property,” “Limitations of Liability” and “Indemnification.”
11. Confidentiality.
- “Confidential Information” means any non-public technical, business, financial, or other proprietary information disclosed by one party (“Disclosing Party“) to the other party (“Receiving Party“) under this Agreement. This includes, but is not limited to, business plans, marketing strategies, product development, customer data, and information obtained from third parties. Confidential Information also includes the non-public aspects of the Services and the terms of this Agreement.
- Exclusions from Confidential Information Confidential Information does not include information that: (i) was already known to the Receiving Party at the time of disclosure; (ii) becomes publicly available through no fault of the Receiving Party; (iii) is rightfully disclosed to the Receiving Party by a third party without a confidentiality obligation; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
- Confidentiality Obligations The Receiving Party agrees: (i) to keep all Confidential Information confidential and not to disclose it to any third party except to employees, agents, or contractors (“Representatives“) who need access to the information to perform their duties under this Agreement and who are bound by confidentiality obligations no less restrictive than those in this Agreement, (ii) to use the Confidential Information solely for the purposes of this Agreement and not for any other purpose, (iii) to take reasonable care to protect the Confidential Information and prevent unauthorized use or disclosure, using at least the same degree of care as it uses to protect its own confidential information and (iv) to promptly notify the Disclosing Party in writing if there is any loss, unauthorized use, or disclosure of the Confidential Information. If the Receiving Party is required by law or legal process to disclose any Confidential Information, it must promptly notify the Disclosing Party to allow it time to seek a protective order or other remedy and only disclose the minimum amount of Confidential Information necessary to comply with the legal obligation, based on advice from legal counsel.
- Return or Destruction of Confidential Information Upon termination of this Agreement, or upon request by the Disclosing Party, the Receiving Party will Immediately return or destroy all Confidential Information, including any copies in any form.
- Enforcement and Remedies. Due to the proprietary nature of the Confidential Information, any breach of these obligations may result in irreparable harm to the Disclosing Party. Accordingly, the Disclosing Party is entitled to seek injunctive relief in addition to other legal remedies. The Receiving Party will be liable for any breach of confidentiality by its Representatives.
12. Intellectual Property.
A. Customer Materials; Impel Materials. Excluding any Sourced Data, Customer Data or other data, materials, or information (including content) submitted or uploaded to the Services by you or your Authorized Users or transmitted by you or your Authorized Users using the Services (“Customer Materials”), the Services and all technology or information related thereto, including all models, algorithms, and code used therein or in connection therewith (“Impel Materials”) are the sole and exclusive property of Impel or its licensors.
B. Ownership. As between the parties:
i. Customer retains all right, title, and interest, including all intellectual property rights, in and to the Customer Materials, or has the necessary approvals and licenses to use such materials. Customer hereby grants Impel a non-exclusive, royalty-free license during the term of this Agreement to access, use, collect, reproduce, display, execute, compile, and otherwise process the Customer Materials solely in connection with, and as required to provide, the Services. Customer further grants Impel permission to identify Customer by name, trademark, or logo: (i) as required for the performance of the Services, and (ii) as a customer of Impel in Impel’s marketing materials. No other licenses, permissions, or rights are granted hereby. For purposes of this Agreement, “Intellectual Property Rights” includes, without limitation, all rights in works of authorship, trademarks, patents, copyrights, trade secrets, know-how, designs, inventions, research, and any updates or derivative works thereof.
ii. As between the parties, Impel owns all right, title, and interest, including all Intellectual Property Rights, in and to the Impel Materials. Impel grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable right during the term of this Agreement to use Impel’s trademarks, service marks, trade names, logos, or other designations used or adopted by Impel in connection with the Services (“Impel Trademarks”) solely for promoting the Services, subject to the following conditions: (i) all use shall inure to the exclusive benefit of Impel; (ii) Customer shall obtain Impel’s prior written approval for any use of the Impel Trademarks; (iii) Customer must indicate Impel’s ownership of the Impel Trademarks in each such use; (iv) Customer must comply with any specifications and requirements provided by Impel regarding the use of the Impel Trademarks; and (v) Customer shall not, without Impel’s prior written consent, remove or alter any Impel Trademark applied to the Services. Customer acknowledges and agrees that (a) it will not acquire any right, title, or interest in or to the Impel Trademarks, (b) Impel exclusively owns the Trademarks, and (c) Customer will not dispute Impel’s ownership of the Impel Trademarks. Upon termination of this Agreement, Customer shall immediately cease using the Impel Trademarks and shall return or destroy all materials containing any such Impel Trademarks, as directed by Impel.
C. De-Identified Data. Notwithstanding anything in this Agreement to the contrary, Customer agrees that Impel may use Customer Materials to create De-Identified Data. “De-Identified Data” means data and information that is collected or created by Impel while providing the Services that does not identify any individual, or Customer, or any Authorized User. De-Identified Data may include data or information collected by Impel when Customer or its Authorized Users access or use the Services, including technical data, performance data, statistical data, and connection data. As between Customer and Impel, Impel owns all right, title, and interest, including all Intellectual Property Rights, in and to the De-Identified Data and may use such data for any lawful purpose. This includes using De-Identified Data to conduct research, improve the Services, create or build new products, build and train proprietary algorithms or models, engage in data analytics, and otherwise exploit the data for Impel’s commercial purposes.
D. Feedback. The parties acknowledge and agree that Impel may solicit and Customer may provide to Impel suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Services (“Feedback”). Customer hereby grants to Impel a nonexclusive, perpetual, irrevocable, royalty-free right and license to disclose, use and incorporate the Feedback for any lawful purpose.
E. Reservation of Rights. All rights not expressly granted to Customer herein are expressly reserved by Impel. As between the parties the Services and all De-Identified Data are and will remain the exclusive property of Impel, and Impel will retain ownership of all copyrights, patents, trademarks, trade secrets, know-how, databases, and other intellectual property rights relating to or residing in the Services and any updates, improvements, modifications and enhancements (including error corrections and enhancements) thereto, and all derivative works thereof, including any software, applications, inventions or other technology developed in connection with Services, or support thereof, and the De-Identified Data, and Customer will have no right, title, or interest in or to the same. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of Impel’s or its licensors’ existing or future rights in or to the Services or the De-Identified Data.
F. Violations of Law; Misuse of Intellectual Property. Impel may immediately suspend provision of or access to the Services at any time, without notice to Customer and without liability, if Impel suspects or becomes aware that the Services or the use thereof may infringe or violate any third party rights, or may violate applicable law. Impel may suspend Customer’s and its users’ access to and use of the Services in order to comply with applicable law.
13. Warranties & Disclaimer.
- Mutual Warranty. Each party hereby represents and warrants that: (i) it has the right to enter into this Agreement, to grant the licenses granted herein and to perform its obligations hereunder, in each instance without the consent of a third party; (ii) when executed and delivered, this Agreement shall be each party’s legal, valid, and binding obligation enforceable in accordance with its terms; (iii) it shall comply with all applicable laws concerning its activities pursuant to this Agreement.
- Impel Warranty. Impel represents and warrants that the Services will perform in all material respects in accordance the terms of the applicable Order Form and/or any documentation. Impel’s sole obligation and your sole remedy with respect to a breach of this warranty will be a re-performance of the nonconforming Services under such Order Form. To the maximum extent permitted by law, Impel’s sole obligation, and Customer’s sole and exclusive remedy for any breach of the this warranty, shall be for Impel to use commercially reasonable efforts to correct any nonconformity.
- Customer Warranty. Customer represents, warrants and covenants that (i) Customer has received all third party consents and certifications for Impel to use and display the Customer Materials; (ii) Customer will comply with all applicable law with respect to its and its Authorized User’s access to and use of the Services; (iii) the Customer Materials do not contain any libelous or slanderous materials and is not otherwise objectionable; (iv) it has all necessary right, title and interest to use any trademarks, service marks, logos, graphics, portraits, photographs, pictures and artwork contained in the Customer Materials; (v) the Customer’s use of the Services, as envisioned by this Agreement, do not violate any third-party agreement to which the Customer is a party, including any agreement or policy of an OEM that the Customer is affiliated with as a dealer or otherwise; and (vi) no Customer Materials is false, inaccurate, misleading, fraudulent, or untrue in any way and that such Customer Materials accurately depicts any products or services offered to customers or prospective customers of the Customer, and Impel has no obligation to analyze, inspect, audit, validate, or otherwise review any Customer Materials.
- Warranty Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED FOR IN THIS AGREEMENT, ALL SERVICES AND OTHER MATERIALS, ARE PROVIDED “AS IS”, AND IMPEL HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO SUCH SERVICES AND OTHER MATERIALS, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, FREEDOM FROM INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IMPEL HEREBY EXPRESS DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES REGARDING THE PERFORMANCE OR FUNCTIONALITY OF ANY THIRD-PARTY SOFTWARE.
14. Privacy & Data Protection.
- Personal Data. To the extent that Impel processes any Personal Data (as defined in the DPA) contained in the Customer Data that is subject to Data Protection Laws (as defined in the DPA), Impel’s Data Processing Agreement (“DPA”) https://impel.ai/data-processing/ shall apply to such processing.
- No Sensitive Data. Customer shall not upload, transmit, or cause to be uploaded or transmitted, any data that is subject to heightened privacy or security requirements by law or regulations, including, without limitation, any personal financial or medical information of any nature, or any sensitive personal (“Sensitive Data”). Impel shall have no liability under this Agreement for any Sensitive Data in violation of the foregoing.
15. Indemnification.
- Impel Indemnification. Impel will indemnify, defend, and hold harmless Customer from and against any and all damages payable to any third party in any suit or cause of action arising out of a third-party claim that the Customer’s use of the Services as permitted hereunder directly infringes the third-party’s intellectual property rights under the laws of the United States. In the event Customer is unable to use a portion of the Services due to such allegation, Impel may, at its option, procure Customer the right to continue to use such Service, or replace or modify such Service so that it becomes non-infringing. If neither option is available, Impel may terminate this Agreement or the applicable Order Form and refund all paid and unused fees. This section details Customer’s sole and exclusive remedy with respect to any claim related to intellectual property infringement. The foregoing obligations of Impel do not apply to the extent that (i) the infringing Service, or portions or components thereof, or modifications thereto, were not supplied or directed by Impel, or were combined with other products, services, processes, or materials not supplied or directed by Impel (where the alleged infringement relates to such combination) or (ii) any such infringement claim is based upon Customer Materials.
- Customer Indemnification. Customer will indemnify and hold harmless Impel and its affiliates, directors, officers, employees, and agents from and against any and all claims, losses, damages, suits, fees, judgments, costs and expenses, including reasonable attorneys’ fees brought or asserted by any third party arising out of or relating to: (a) the Customer Materials, including any allegation that Impel’s processing or use of Customer Materials infringes on any third-party intellectual property, proprietary, or privacy right; or (b) Customer’s violation of applicable laws, rules, or regulations.
- Process. Each party’s indemnification obligation under this section is conditional upon: (a) the indemnified party giving the indemnifying party prompt notice upon becoming aware of the claim (provided that failure to promptly notify shall not relieve the indemnifying party of its obligation to defend the claim unless such failure materially prejudices its ability to defend the claim); (b) the indemnified party giving the indemnifying party the right to solely control and direct the investigation, preparation, defense and settlement of the claim; and (c) the indemnified party reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in such defense and settlement. The indemnified party shall have the right, at its cost, to employ counsel of its choice to participate in the defense of such claim.
16. Limitations of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID (OR OWING BUT UNPAID) TO IMPEL BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM PURSUANT TO THE ORDER FORM TO WHICH THE CLAIM RELATES. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO A PARTY’S: INDEMNIFICATION OBLIGATIONS HEREIN OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS.
17. Insurance. Impel will, at its own cost and expense, obtain and maintain liability insurance, with, at minimum, the following coverages: commercial general liability insurance, including contractual liability, in the amount of $1,000,000 per occurrence and $2,000,000 in aggregate; workers compensation in the amount required by law; cyber liability insurance in the amount of $1,000,000 per occurrence and $3,000,000 in aggregate; and a fidelity bond/crime coverage in the amount of $500,000.
18. Export Laws; Government Entities. The Services and all related technical data are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations and may be subject to export or import regulations of other countries. You shall not use, export, re-export, or provide access to the Services in any form in violation of any applicable export or import laws of any jurisdiction. The Services are commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are the US Government or any contractor therefor, you shall receive only those rights with respect to the Services as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
19. Choice of Law; Exclusive Venue and Jurisdiction.
- If the Impel contracting party is Augmented Reality Concepts, LLC: The terms of this Agreement shall be governed by the laws of the State of New York without regard to conflicts of laws principles. The parties agree that the exclusive venue of any suit, arbitration or other decision-making process with respect to matters arising under this Agreement shall be located in Onondaga County, New York, and the parties consent to personal jurisdiction over them in that venue. The United Nations Convention on Contracts for International Sales of Goods shall not apply.
- If the Impel contracting party is Impel Canada, Inc.: The terms of this Agreement shall be governed by the laws of the Province of Ontario without regard to conflicts of laws principles. The parties agree that the exclusive venue of any suit, arbitration or other decision-making process with respect to matters arising under this Agreement shall be located in Toronto, Ontario, and the parties consent to personal jurisdiction over them in that venue. The United Nations Convention on Contracts for International Sales of Goods shall not apply.
- If the Impel contracting party is Impel (Aus) Pty Ltd: The terms of this Agreement shall be governed by the laws of England & Wales without regard to conflicts of laws principles. The parties agree that the exclusive venue of any suit, arbitration or other decision-making process with respect to matters arising under this Agreement shall be located in London, England and the parties consent to personal jurisdiction over them in that venue. The United Nations Convention on Contracts for International Sales of Goods shall not apply.
- If the Impel contracting party is SpinCar UK Ltd: The terms of this Agreement shall be governed by the laws of South Australia without regard to conflicts of laws principles. The parties agree that the exclusive venue of any suit, arbitration or other decision-making process with respect to matters arising under this Agreement shall be located in South Australia, and the parties consent to personal jurisdiction over them in that venue. The United Nations Convention on Contracts for International Sales of Goods shall not apply.
20. Wavier of Class Action. Any claims brought by either party must be brought in that party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither party will participate in a class action or class-wide arbitration for any claims covered by this Agreement. Customer hereby waives any and all rights to bring any claims related to this Agreement, including related to any of Impel’s policies, as a plaintiff or class member in any purported class or representative proceeding. Customer may bring claims only on its own behalf.
21. Amendments. Except as otherwise set forth herein, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Impel. Notwithstanding the foregoing, to the extent any change in Applicable Law requires any amendment to this Agreement, Impel may unilaterally make such amendment upon written notice to Customer, in which case such amendment shall be effective thirty (30) days after such notice (or such shorter period as Impel may prescribe due to the applicable change in Applicable Law), and Customer shall have the right to terminate this Agreement prior to the amendment taking effect if Customer can demonstrate hardship due to such amendment.
22. Notices. Notices permitted or required to be given hereunder will be deemed sufficient if given by e-mail, or registered or certified mail, postage prepaid, return receipt requested, addressed to the respective addresses of the parties in the Order Form. Notices so given will be effective upon the earlier to occur of (a) receipt by the party to which notice is given, or (b) if sent by registered or certified mail, the fifth (5th) business day following the date such notice was posted, whichever occurs first.
23. Force Majeure. Each party’s performance may be subject to interruption and delay due to causes beyond the reasonable control of such party including without limitation, strikes, labor unrest, riots, power outages, inclement weather and acts of God. In the event of such interruption or delays, the period of performance shall be extended for a period of time equal to the interruption or delay. If such a force majeure event extends for more than thirty (30) consecutive days, either party may terminate this Agreement and any applicable Order Forms hereunder by delivering written notice to the other party.
24. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter herein and supersedes all prior discussions, understandings and agreements, written or oral, with respect to its subject matter. Any terms on a purchase order, payment document, or other document submitted by Customer shall be void and have no force or effect.
25. Remedies Cumulative. The enumeration herein of specific remedies shall not be exclusive of any other remedies unless otherwise expressly stated herein. Any delay or failure by any party to this Agreement to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, shall not be construed to be a waiver of such right, power, remedy or privilege, nor to limit the exercise of such right, power, remedy, or privilege, nor shall it preclude the further exercise thereof or the exercise of any other right, power, remedy or privilege.
26. No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim, in connection with this Agreement.
27. Assignment. This Agreement and all rights and obligations hereunder are not assignable or transferable by Customer without the prior written consent of Impel, and any attempt to do so shall be void. This Agreement is binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
28. Severability. If any provision of this Agreement proves to be or becomes invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent necessary in order to render such provision valid and enforceable in the manner that best advances the spirit of this Agreement; if such provision may not be so saved, it shall be severed and the remainder of this Agreement shall remain in full force and effect.
29. Waivers. No waiver of any provision of this Agreement or the breach thereof shall be effective unless made in writing and signed by an authorized representative of the waiving party.
30. Independent Contractors. Customer and Impel are independent contractors and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the parties. Except as otherwise specifically provided in this Agreement, neither party will have or represent that such party has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party.