GIRAFFE360 CAMPAIGN TERMS OF SERVICE

1. INTRODUCTION 

(a) allows users to collect data relating to real estate properties using Giraffe360 camera equipment (such data may include a still image (the “Still”) and a 360 degree, or panorama, scan (the “Scan”), each such Still or Scan being a “Capture Asset”); 
(b) processes such Capture Assets through a cloud-based production service to create photos, virtual tours, floorplans, videos and other high-quality visual content (collectively, the “Content”);  and 
(c) makes such Content available to Clients to view, download and manage through a content management platform that Giraffe360 makes available as a service at dashboard.giraffe360.com (the “Dashboard”), (collectively, the “Giraffe360 Service”). 

By placing an order on Giraffe360 Campaign website located at deal.giraffe360.com (the “Website”), you agree to and accept these Terms of Service.
These Terms of Service sets out the terms and conditions upon which you may use the Giraffe360 Service, Giraffe360’s Camera Unit and the Content, as well as any application or functionality Giraffe360 makes available through the Giraffe360 Service. 

2. INFORMATION ABOUT GIRAFFE360 

The Giraffe360 Service is provided by Giraffe360, Inc., a Delaware Corporation, with a registered address at 1209 Orange Street, Wilmington, DE 19801 (“Giraffe360”). 

3. INTERPRETATION 

3.1. In these Terms of Service, except where the context expressly requires otherwise, the following terms shall have the following meanings: 
“Agreement” means the contract between the Client and Giraffe360 for the provision of the Giraffe360 Service, as described in these Terms of Service and accepted by the Client when placing an order on the Website.
“Business Day” means any day other than a Saturday, Sunday or bank holiday.
“Camera Unit” means the Giraffe360 camera and equipment that Giraffe360 makes available for the capturing of Capture Assets, including but not limited to the tripod, cables, carrying bag and other accessories.
“Campaign Subscription” has the meaning provided in section 4.1. 
“Campaign Subscription Fee” means the amount set out on the Website for the Campaign Subscription.
“Capture Session” means the period of time commencing on the activation of the camera and until the next deactivation of the camera.
“Client” or “you” means the person identified when placing an order on the Website.
“Client Account” means an account with an ID and password that the Client uses to access the Dashboard.
“Confidential Information” means information which is identified as confidential or proprietary by either party, or that would be considered confidential or proprietary by a reasonable person given the nature of the information or the circumstances of its disclosure, as further set forth in Section 11. 
“Dashboard” has the meaning given to it in the Introduction, available to the Clients that subscribes to Processing Subscription or other Subscriptions that involve access to Dashboard.
“Dashboard Access Fee” means the amount payable by the Client relating to the Client’s ongoing access to Dashboard following termination of its Campaign Subscription; 
“Dashboard Access Period” means the period commencing on the Delivery Date and ending on the later of: 

(a) the date on which Campaign Subscription is terminated; or 
(b) if the Client notifies Giraffe360 that it wishes to continue having access to the Dashboard after the date specified in subsection (a), the date which is agreed between the parties.

“Delivery Address” means the address specified by the Client when placing an order on the Website.
“Delivery Date” means the date on which a Camera Unit is delivered to the Client at the Delivery Address.
“Prohibited Personal Information” means any of the following: 

(a) personally identifiable financial information as defined by and subject to the Gramm-Leach-Bliley Financial Modernization Act of 1999; 
(b) documents or information relating to court, tribunal or arbitration proceedings; 
(c) cardholder or sensitive authentication data (as defined in the Payment Card Industry Data Security Standard) or information relating to an individual’s finances; 
(d) national identity or other government issued identity numbers (including, without limitation, Social Security Numbers); 
(e) education records, as defined under the Family Educational Rights and Privacy Act of 1974; 
(f) information relating to children under the age of thirteen (13) that would be subject to the Children Online Privacy Protection Act; 
(g) protected health information subject to the Health Insurance Portability and Accountability Act; 
(h) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, sexual orientation, sex life, biometric data (including any videos or photos of natural persons); or 
(i) any other information or documents that are either marked as sensitive, private or confidential or that would reasonably be considered as sensitive, private or confidential.

“Project” means a set of Capture Assets created by the Client using the Giraffe360 Service, consisting of images and information collected by a Camera Unit during a single Capture Session at a single property.
“Project Credit” means a credit included in the Campaign Subscription, each credit granting the Client the opportunity to create one (1) Project.
“Subscription Period” means the duration of the Campaign Subscription, commencing on the Delivery Date and ending either:

(a) when the Client upgrades to another subscription plan, 
(b) when the Client cancels the subscription and returns the Camera Unit within seven (7) business days, or 
(c) when the Camera Unit is ultimately returned to Giraffe360 if returned later than seven (7) business days after cancellation. The Client will continue to be charged for the Campaign Subscription until the Camera Unit is returned as specified in this Agreement.

“Terms of Service” means these terms and conditions of service, as amended from time to time.
“Virus” means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software,  hardware, or network, any telecommunications service, equipment or network or any other  service or device; prevent, impair or otherwise adversely affect access to or the operation  of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including works, Trojan horses, viruses and other similar things or devices.

4. DURATION AND SUBSCRIPTION PERIODS 

4.1. The Campaign Subscription is available exclusively to Clients in the United States on the Website while supplies last (the “Campaign Subscription”). Each Client may subscribe to only one Campaign Subscription.
4.2. This Agreement commences on the date the Client places an order through the Website and continues until the end of the Subscription Period, as specified in this Agreement.
4.3. The Campaign Subscription is non-cancellable and non-refundable, except as otherwise provided in this Agreement.
4.4. The Campaign Subscription grants the Client 5 Project Credits, issued on the Delivery Date, for a fixed monthly price presented to and accepted by the Client when placing an order on the Website. Each Project Credit includes unlimited Capture Assets per Project and the following add-ons: Branding, Vector Floor Plans, Point Cloud download, Video Generation and Sky Replacement.
4.5. Each Project Credit expires within 12 days apart, beginning with the first Project Credit, which expires 12 days after the Delivery Date. Subsequent credits expire sequentially (the second Project Credit expiring within 24 days, the third within 36 days and so forth), with all credits expiring 60 days from the Delivery Date.
4.6. Clients may upgrade their subscription plan or cancel the Campaign Subscription in the “Subscription” section of the Dashboard.
4.7. If the Client does not upgrade to another Giraffe360 subscription and cancels their Campaign Subscription, the Client must return the Camera Unit, including all hardware and accessories received under this Agreement, to Giraffe360 within seven (7) Business Days of canceling the Campaign Subscription. If the Camera Unit is not returned, the Client will continue to be charged the Campaign Subscription fee until the Camera Unit is returned.
4.8. This Agreement will automatically terminate at the end of the Subscription Period.

5. PAYMENT TERMS

5.1. The Client agrees to pay the Campaign Subscription Fee as specified on the Website when placing the order. 
5.2. The Client shall make the first monthly payment on the Website at the time of placing the order and it shall cover the first subscription month commencing on the Delivery Date. The Campaign Subscription Fee shall be billed monthly in advance further on. 
5.3. Giraffe360 shall submit to the Client an invoice in respect of the Dashboard Access Fee due for the Client’s continued use of the Dashboard following termination of the Campaign Subscription, on the day after the termination of the Campaign Subscription  and each subsequent month during the remainder of the Dashboard Access Period. 
5.4. The Client shall make all payments within the invoice due period provided in the invoice. The Client shall settle the invoice by a debit or credit card on the Website, but alternative payment methods may be permitted, if available. 
5.5. The Client hereby authorizes Giraffe360 to automatically charge the payment method on file unless payment is manually completed by the Client. The Client shall be responsible for ensuring that sufficient funds are available in the account linked to the payment method and for keeping payment information up-to-date.
5.6. If Giraffe360 has not received payment in full within the invoice due period, and without prejudice to any other rights and remedies available to Giraffe360:
(a) Giraffe360 may, without liability to the Client, suspend or temporarily disable all or part of the Client’s access to or use of the Giraffe360 Service and Giraffe360 shall  be under no obligation to provide any access to the Giraffe360 Service while the relevant sum remains unpaid. For the avoidance of doubt, Giraffe360 will continue to invoice the Client, and the Client will remain liable for the Campaign Subscription Fees incurred, even during periods of suspension or when their access to the Giraffe360 Service is disabled;
(b) interest shall accrue on such due amounts at an annual rate equal to four per cent (4%) above the then current base rate as reported by The Wall Street Journal in  effect on the due date for payment of the relevant Fees, commencing on the due date for payment and continuing until the Fees have been paid in full, whether  before or after judgment; and 
(c) the Client shall reimburse Giraffe360 for all reasonable costs and expenses (including reasonable attorney fees) incurred by Giraffe360 in collecting any  overdue amounts.  
5.7. All amounts and Fees stated or referred to in the Agreement: 
(a) are payable in the currency specified on the Website; 
(b) and are exclusive of any and all excise, sales, use, VAT, and other similar taxes and duties.  
5.8. The Client shall be responsible for the collection, remittance, and payment of any and all taxes, charges, levies, assessments, and other fees of any kind imposed by any federal, state, or local governmental or regulatory authority or other authority in respect of its use of  the Giraffe360 Service, including (where applicable) payment of any customs fees or other  similar duties related to the importation of any Camera Units. Giraffe360 shall not be responsible for the payment of any taxes on Client’s income.

6. USE AND CARE OF CAMERA UNITS 

6.1. Subject to the payment to Campaign Subscription Fee, Giraffe360 shall deliver and make available 1 (one) Camera Unit to the Client. 
6.2. The Camera Unit shall at all times remain the property of Giraffe360 and the Client shall have no right, title or interest in or to the Camera Unit (except the right to possession and use of the Camera Unit subject to the terms and conditions of the Agreement).  
6.3. The risk of loss, theft, damage or destruction of a Camera Unit shall be borne by the Client as of the transfer of physical possession of the Camera Unit to the Client or to anyone who  accepts delivery of the Camera Unit on behalf of the Client at the Delivery Address. Each Camera Unit shall remain at the sole risk of the Client during the applicable Subscription Period, and any further period until such time as the Camera Unit is returned and delivered to Giraffe360 (the “Risk Period”). In the event of loss, theft, damage, or destruction of a Camera Unit, the Client is responsible for indemnifying Giraffe360 the value of the Camera Unit, which is USD 3,000 per Camera Unit.
6.4. The Client shall give immediate written notice to Giraffe360 in the event of any loss of or damage to the Camera Unit arising out of or in connection with the Client’s possession or use of the Camera Unit. 
6.5. The Client shall, in respect of the Campaign Subscription: 
(a) keep the Camera Unit in as good an operating condition as it was on the Delivery Date (except for normal wear and tear); 
(b) take such steps as may be necessary to ensure, so far as is reasonably practicable, that the Camera Unit is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work; 
(c) not make (or permit any other person to make) any repair or alteration to the Camera Unit without the written consent of Giraffe360; 
(d) keep Giraffe360 fully informed of all material matters relating to the Camera Unit; 
(e) permit Giraffe360 or its duly authorized representative to inspect the Camera Unit at all reasonable times and for such purpose to enter upon any premises at which the Camera Unit may be located, and shall grant reasonable access and facilities for such inspection; 
(f) not, without the prior written consent of Giraffe360, part with control or possession of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Camera Unit or allow the creation of any mortgage, charge, lien or other security interest in respect of it; 
(g) not do or permit to be done any act or thing which will or may jeopardize the right, title and/or interest of Giraffe360 in the Camera Unit; 
(h) not suffer or permit the Camera Unit to be confiscated, seized or taken out of its  possession or control under any distress, execution or other legal process; if the  Camera Unit is so confiscated, seized or taken, the Client shall notify Giraffe360 and the Client shall at its sole expense use its best efforts to procure an immediate release of the Camera Unit and pursuant to Section 17, shall indemnify Giraffe360 on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation; 
(i) not use the Camera Unit for any unlawful, illegal or unethical purpose; 
(j) ensure that at all times the Camera Unit remain identifiable as being Giraffe360’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Camera Unit; and 
(k) return and deliver the Camera Unit at the end of the Campaign Subscription to such address as Giraffe360 requires, or if necessary allow Giraffe360 or its representatives access to the Client’s premises or any premises where the Camera Unit is located for the purpose of collecting the Camera Unit.
6.6. The Client shall be responsible for any loss of or damage to the Camera Unit during the  Subscription Period and the Risk Period, and the Client undertakes to indemnify Giraffe360 on demand against the same, and against all losses, liabilities, claims, damages, costs or  expenses of whatever nature otherwise arising out of or in connection with any failure by the Client to comply with the terms of clause 6.5. 

7. ACCESS TO DASHBOARD

7.1. Giraffe360 grants the Client a non-exclusive, non-sublicensable, non-transferable licence, during the Dashboard Access Period, to access and use the Dashboard solely in accordance with and subject to the terms and conditions of the Agreement.  
7.2. The Client must: 
(a) treat any username and password used to access the Dashboard or Client Account as Confidential Information; 
(b) not disclose such information to any third party; and  
(c) take appropriate safeguards in accordance with good industry practice to prevent unauthorized access to the Dashboard.  
7.3. The Client is responsible for maintaining the confidentiality of its login details for its Client Account and for any activities that occur under its Client Account.  
7.4. Giraffe360 encourages the Client to use “strong” passwords (using a combination of upper and lower-case letters, numbers and symbols) with its Client Account.  
7.5. The Client must prevent any unauthorized access to, or use of, the Dashboard, and must promptly notify Giraffe360 in the event of any such unauthorized access or use. If the Client has any concerns about the login details for its Client Account, or thinks any of them may have been misused or stolen, the Client shall notify Giraffe360 in writing at  customersuccess@giraffe360.com.

8. CLIENT’S OBLIGATIONS WITH RESPECT TO THE GIRAFFE360 SERVICE 

8.1. The Client: 
(a) must comply with all applicable laws and regulations with respect to its use of the Giraffe360 Service and its activities under the Agreement; 
(b) must use the Giraffe360 Service in accordance with the terms of the Agreement; 
(c) must notify Giraffe360 in writing if there are any changes to any of the Client’s contact details as set forth when placing an order on the Website;
(d) must ensure that its network and systems, including its internet browser and operating systems, comply with any relevant specifications provided by Giraffe360 in writing (including e-mail) from time to time; 
(e) is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Giraffe360 Service; and  
(f) must not do, or allow any other persons to do, any of the following: 
i. access, store, distribute, or transmit any Virus through the Giraffe360 Service; 
ii. use the Giraffe360 Service to access, store, distribute, or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing, harassing, or racially or ethnically offensive;
iii. use the Giraffe360 Service in a manner that is illegal or causes damage or injury to any person or property; 
iv. use any automated system, including without limitation “robots”, “spiders”, or “offline readers”, to access the Giraffe360 Service in a manner that sends more request messages to the Giraffe360 Service than a human can reasonably produce in the same period of time by using a conventional online web browser;
v. attempt to interfere with or compromise the integrity or security of the Giraffe360 Service

8.2. Giraffe360 may monitor the Client’s use of the Giraffe360 Service to ensure the quality of, and improve, the Giraffe360 Service, and verify the Client’s compliance with the  Agreement.

8.3. The Giraffe360 Service may contain links to, or call the servers of, third party websites, data or services that are not under Giraffe360’s control, solely at the direction of and/or as a convenience to the Client (“Third Party Sites”). As such, Giraffe360 is not responsible for, and makes no express or implied warranties with regard to, the information, content or other material, products, or services that are contained on or are accessible through, or the policies regarding use and privacy in respect of, Third Party Sites. Access to and use of Third Party Sites, including information, content, material, products, and services on such websites or available through such websites, is solely at the Client’s risk.

9. INTELLECTUAL PROPERTY RIGHTS 

9.1. Except as expressly set forth in this Agreement, Giraffe360 does not grant to the Client any rights to or licenses in respect of the Giraffe360 Service. 
9.2. The parties agree that all intellectual property rights in and to the Content created by the Client shall vest in the Client. To the extent that any rights in and to the Content vest in Giraffe360 by operation of law, Giraffe360 hereby assigns to the Client by way of future assignment,  absolutely and with full title guarantee.
9.3. The Client grants to Giraffe360 a royalty-free, perpetual, non-exclusive, transferable, sublicensable license to use, copy, reproduce, adapt, modify, display, make derivative works from and distribute the Content created in connection with the Client’s use of the Giraffe360 Service for the sole purpose of providing and improving the Giraffe360 Service as well as product development. This includes, but is not limited to, the use of the Content for machine learning and artificial intelligence training purposes. The Client acknowledges that due to the nature of machine learning and artificial intelligence processes, it may not be possible to completely erase or remove all data derived from the Content once it has been utilized for such purposes. Therefore, the Client agrees that Giraffe360 may retain and continue to use anonymized or aggregated data derived from the Content even after termination of Subscriptions. The Client hereby warrants that the Client has the right to grant the license set forth above, and that Giraffe360 will not be required to obtain any licenses from any third party or pay royalties to any third party for the right to use the Content as prescribed in this clause.
9.4. Except as expressly set forth in this Agreement, the Client will not, when using the Giraffe360 Service:  
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Giraffe360 Service in any form or media or by any means, except for using Giraffe360 Service in accordance with this Agreement;  
(b) attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Giraffe360 Service; 
(c) access all or any part of the Giraffe360 Service in order to build a product or service which competes with the Giraffe360 Service, or use or attempt to use the Giraffe360 Service to directly compete with Giraffe360; or 
(d) erase or remove any proprietary or intellectual property notice contained in the Giraffe360 Service. 

9.5. Giraffe360 may use the Client’s name, logo, and related trademarks in any of Giraffe360’s advertising or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Client uses the Giraffe360 Service and alongside any testimonials that the Client has agreed to give. The Client grants Giraffe360 such rights as are necessary to use its name, logo, related trademarks and testimonials for the purpose of this Section 9.5. Giraffe360 reserves the right to use the Content with Client’s permission for Giraffe360’s publicity, marketing or other purposes. 
9.6. The Client agrees to provide feedback to Giraffe360 in relation to its use of the Giraffe360 Service. By submitting feedback, the Client acknowledges that Giraffe360 may use and allow others to use this feedback in the Giraffe360 Service or otherwise without any restriction and without payment of any kind to the Client.
9.7. The terms covered in this Intellectual Property Rights section 9 shall survive the termination or expiration of Client’s Subscriptions and this Agreement.

10. DATA PROTECTION

10.1. The Client shall ensure that the Captured Assets do not contain any Prohibited Personal Information. 
10.2. Without prejudice to Section 10.1, the Client: 
(a) must notify Giraffe360 if the Content contains any Prohibited Personal Information that is not blurred or otherwise obfuscated or rendered illegible; and 
(b) shall ensure that it does not distribute or otherwise make publicly available any Content containing Prohibited Personal Information unless that  Prohibited Personal Information is blurred or otherwise obfuscated or rendered illegible. 

10.3. Information about Giraffe360’s privacy practices is available here.  

11. CONFIDENTIAL INFORMATION 

11.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that: 
(a) is or becomes publicly known other than through any act or omission of the receiving party; 
(b) was in the other party’s lawful possession before the disclosure;  
(c) is lawfully disclosed to the receiving party by a third party without restriction on  disclosure;  
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or  
(e) is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body. 

11.2. Each party shall hold the other party’s Confidential Information in confidence and, unless required by law, shall not make the other party’s Confidential Information available for use  for any purpose other than as needed to perform or enforce the terms of the Agreement.  
11.3. Each party shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.  
11.4. Each party shall take a backup of its own Confidential Information and shall not be responsible to the other party for any loss, destruction or alteration of Confidential Information.  

12. AVAILABILITY AND SUPPORT 

12.1. Giraffe360 will use commercially reasonable efforts to: 
(a) make the Giraffe360 Service available with an uptime rate of 98%; 
(b) process Capture Assets into the Content within seventy-two (72) hours of such Capture Assets being uploaded (and merged, if applicable) to the Dashboard, 

except for planned maintenance for which twenty-four (24) hours’ notice will be given or unscheduled maintenance during normal business hours (EST time) or otherwise, for  which Giraffe360 will use commercially reasonable efforts to give the Client advance notice. 

12.2. Giraffe360 will use reasonable efforts to provide a level of support and advice on the use of the Giraffe360 Service that is appropriate to the nature of any issues requiring support  or advice during normal working hours (EST time). 
12.3. The Client shall provide all support reasonably required by Giraffe360 to perform its obligations under this Section 12, including providing reasonably detailed descriptions of  issues and updates on the performance of the Giraffe360 Service.  

13. SUSPENSION AND TERMINATION  

13.1. Without prejudice to any other rights or remedies available to Giraffe360, if the Client fails  to pay any sum due to Giraffe360 and such sum remains outstanding for a further 10 (ten) days following notice requiring such sum to be paid, Giraffe360 may immediately  terminate the Campaign Subscription on giving notice to the Client, without liability for Giraffe360 to the Client.  
13.2. Without prejudice to any other rights and remedies available to Giraffe360, Giraffe360 may immediately suspend the Client Account, and the Client’s right to access and use the  Giraffe360 Service and may terminate the Campaign Subscription by notice with immediate effect, or such notice as Giraffe360 may in its sole discretion elect to give, if the Client:  
(a) infringes Giraffe360’s intellectual property rights in the Giraffe360 Service;
(b) infringes any provision of Section 8.1(f) of this Agreement;
(c) is in material or persistent breach of any of the terms of the Agreement; 
(d) in Giraffe360’s reasonable determination, the Client is suspected of being in material breach of any of the terms of the Agreement;
(e) is in breach of any applicable law.

For the purposes of this Section 13.2, the parties acknowledge that any breach of Sections 9.4 and 11 will be a material breach of the Agreement.

13.3. The Client may terminate the Campaign Subscription at the end of each billing month (each billing month beginning on the Delivery Date and renewing monthly thereafter). To avoid incurring charges for the following month, the Client must complete cancellation by the last day of the current billing month through the “Subscription” section of the Dashboard. For the avoidance of doubt, if the cancellation process is not completed by the end of the current billing month, the Client shall be charged for the entire subsequent month.
13.4. If the Client cancels without upgrading to another Giraffe360 subscription, the Client must return the Camera Unit, including all hardware and accessories received under this Agreement, to Giraffe360 within seven (7) Business Days of cancellation. If the Camera Unit is not returned, the Client will continue to incur charges for the Campaign Subscription until the Camera Unit is returned.
13.5. Upon termination of the Campaign Subscription, Giraffe360 shall permit the Client to download any Client data (other than the Content that is not supported or usable outside of the Giraffe360 Service such as virtual tours etc) from the Dashboard for a period of three (3) days after the termination of the Campaign Subscription. If the Client upgrades their subscription, the Content shall remain accessible to the Client in the Dashboard as part of the ongoing subscription. Giraffe360 reserves the right to retain and continue using anonymized or aggregated data derived from the Content during and after the termination of this Agreement for machine learning and artificial intelligence training purposes, in accordance with the license granted by the Client under section 9 of these Terms of Service.
13.6. Termination of the Agreement for whatever reason shall not affect any rights or remedies of the parties that have accrued up to the date of termination. 
13.7. Termination of the Agreement for whatever reason does not release the Client from the obligation to pay fees, including, but not limited to Campaign Subscription Fee, for the whole Subscription Period.

14. LIMITED WARRANTIES 

14.1. Giraffe360 warrants that, as of their delivery to the Client, the Camera Units are free from material defects in workmanship and materials. Giraffe360 undertakes, at its option, to repair or replace any Camera Unit which is found to be defective as a result of faulty  materials or workmanship within the applicable Subscription Period, provided that: 
(a) the Client gives Giraffe360 notice of the defect promptly after the Client discovers (or ought to have discovered) the defect; 
(b) after receiving notice, Giraffe360 is given a reasonable opportunity of examining the Camera Unit and the Client provides such reasonable assistance to Giraffe360 as Giraffe360 may request to determine the cause of any fault or defect in the Camera Unit, including (where requested by Giraffe360) returning the Camera Unit to Giraffe360; 
(c) the defect does not arise as a result of: 
i. a failure by the Client to follow Giraffe360’s oral or written instructions as to the storage, use or maintenance of the Camera Unit or good trade practice; 
ii. improper use of the Camera Unit or use outside its normal application; or
iii. the Client, or any other person other than Giraffe360, alters or repairs the Camera Unit without Giraffe360’s written consent. 

14.2. Giraffe360 undertakes to make the Giraffe360 Service available as set forth in Section 12.1, provided that the Client:

(a) complies with any directions, manuals or technical documentation provided by Giraffe360 with respect to the use of the Camera Unit and the uploading of Capture  Assets to the Dashboard; 
(b) complies with Section 12.3, 

and the Client’s sole and exclusive remedy, and Giraffe360’s sole liability, with respect to any failure by Giraffe360 to provide the Giraffe360 Service in accordance with Section 12.1 is for Giraffe360 to use commercially reasonable efforts to repair the affected part of the Giraffe360 Service so that it is available in accordance with Section 12.1. 

14.3. Other than as set forth in section 14.1, the Giraffe360 Service is provided on an “as is” basis and Giraffe360 gives no representations, warranties, conditions or other terms of any kind in respect of the Giraffe360 service, whether express or implied, including (but not  limited to) warranties of satisfactory quality, merchantability, fitness for a particular  purpose, or non-infringement.  
14.4. Except as expressly provided for in the Agreement:  

(a) all representations, warranties, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted  by law, excluded from the Agreement; and  
(b) Giraffe360 will not be responsible for any interruptions, delays, failures, or non availability affecting the Giraffe360 Service or the performance of the Giraffe360 Service which are caused by third party services (including third party sites), errors  or bugs in third party software, hardware, or the Internet on which Giraffe360 relies to provide the Giraffe360 Service, or any changes to the Giraffe360 Service made by or on behalf of the Client, and the Client acknowledges that Giraffe360 does not control such third party services and that such errors and bugs are inherent in the use of such software, hardware and the internet.  

15. GIRAFFE360’S LIABILITY 

15.1. Subject to section 15.2, Giraffe360 will not be liable to the Client, whether in contract, tort  (including negligence) or restitution, or for breach of any statutory duty or misrepresentation, or otherwise, for any loss arising under or in connection with the  agreement in conditions that fall into any of the following categories: loss (whether direct  or indirect) of profit, goodwill, business, business opportunity, revenue, turnover or  reputation; loss (whether direct or indirect) of anticipated saving or wasted expenditure;  loss of or damage to data; or any special, indirect or consequential damage or loss, costs  or expenses.  
15.2. Nothing in the Agreement excludes or limits Giraffe360’s liability for death or personal injury caused by Giraffe360’s negligence, for fraud or fraudulent misrepresentation, or for any indemnities given in the agreement.
15.3. Subject to section 15.2, Giraffe360’s aggregate liability for all claims arising in any calendar year under the Agreement in contract, tort (including negligence) or restitution, or for breach of any statutory duty or misrepresentation, or otherwise shall be limited to the  subscription fees paid or payable by the Client to Giraffe360 in that calendar year.

16. CHANGES TO THE GIRAFFE360 SERVICE 

The Client recognizes that Giraffe360 is always innovating and finding ways to improve the Giraffe360 Service with new features and services. The Client therefore agrees that the Giraffe360 Service may change from time to time and no warranty, representation or other  commitment is given in relation to the continuity of any functionality of the Giraffe360 Service. 

17. INDEMNIFICATION 

The Client shall on demand indemnify, defend and hold harmless Giraffe360, and its  agents and contractors from and against any and all losses, damages, claims, liabilities,  costs or expenses of whatever nature (including reasonable attorneys’ fees) otherwise arising out of (i) a claim brought by any other third party relating to the Client’s use of the  Giraffe360 Service; (ii) any loss of or damage to any Camera Units during the Subscription  Period and the Risk Period (except to the extent caused by Giraffe360’s negligence); and (iii) or in connection with any failure by the client to comply with any of the terms of this  Agreement. 

18. GENERAL 

18.1. Written Communications. Applicable laws may require that some of the information or communications that Giraffe360 sends to the Client should be in writing. When using the Giraffe360 Service, the Client accepts that communication with Giraffe360 will mainly be electronic. Giraffe360 will contact the Client by e-mail or provide the Client with information by posting notices on the Dashboard. For contractual purposes, the Client agrees to this electronic means of communication and the Client acknowledges that all contracts, notices, information and other communications that Giraffe360 provides to the Client electronically comply with any legal requirement that such communications be in writing. 
18.2. Notices. All notices given by the Client to Giraffe360 must be submitted to customersuccess@giraffe360.com. Giraffe360 may give notice to the Client via the email address provided by the Client to Giraffe360, through the Dashboard, by publishing updates on the Website or by any other method deemed appropriate by Giraffe360. Notice will be considered received and properly served immediately when posted on the Dashboard or 24 hours after an email is sent. To prove the service of any notice, it is sufficient to demonstrate that the email was sent to the specified email address of the Client.
18.3. Assignment. The Client may not assign or otherwise transfer the Agreement, or any of the Client’s rights or obligations arising under the Agreement, whether by operation of law or otherwise, without Giraffe360’s prior written consent. Giraffe360 may assign or otherwise transfer the Agreement freely without the Client’s consent. Any non-permitted assignment or other transfer of the Agreement will be void and of no effect. 
18.4. Force Majeure Events. Neither party shall be liable to the other party for any delay or non-performance of any of its obligations under the Agreement arising from any cause beyond its control including,  without limitation, any of the following: telecommunications failure, Internet failure, act of  God, act of a third party unless an approved sub-contractor of Giraffe360, governmental  act, war, fire, flood, explosion, or civil commotion. Notwithstanding the foregoing, nothing in this Section shall excuse the Client from any payment obligation under the Agreement.
18.5. No Third Party Beneficiaries. Other than as expressly stated in the Agreement, any person who is not a party to the Agreement may not enforce any of the terms under the Agreement.
18.6. Waiver. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
18.7. Cumulative Remedies. Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. 
18.8. Entire Agreement. Except as it may be supplemented by additional written terms and conditions, agreements, policies or guidelines, the Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations  and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not expressly set forth in the Agreement.
18.9. Independent Contractors. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person. 
18.10. Revisions to these Terms of Service. Giraffe360 reserves the right to change or modify any of the terms and conditions contained in these Terms of Service at any time. The updated version will be published on the Website and will apply from the date of publication.
18.11. Authority to Sign. The person placing an order and accepting these Terms of Service represents and warrants that he or she is duly authorized and has the legal capacity to execute and deliver this Agreement on behalf of the Client.
18.12. Severability. If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions of this Agreement shall not be  prejudiced.
18.13. Survival of Terms. Any provision of the Agreement that is expressly or implicitly intended to take effect or remain in force after the expiration or termination of the Agreement shall survive and remain in full force and effect.
18.14. Governing Law and Exclusive Venue. The Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to principles of conflict of laws. Both parties agree to submit to exclusive jurisdiction and convenient forum in the County of New York, State of New York and further agree that any cause of action arising under or in connection with  this Agreement may be brought in a court in New York. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, the Agreement in any jurisdiction other than that specified in this Section 18.14. Each Party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section 18.14.