Schedule 1 

FACTORYEYE GENERAL TERMS AND CONDITIONS 

INTRODUCTION 

These General Terms and Conditions (“General Terms”) govern Customer’s access and use of the Service. By placing a Service Order with Magic, Customer agrees that these General Terms shall apply to and govern that Service Order. Capitalized terms used in these General Terms and not otherwise defined shall have the meaning attributed to them in the Service Order.  

DEFINITIONS 

“Affiliate” means any Person directly or indirectly Controlling, Controlled by or under common Control with another Person. 

“Agreement” means the FactoryEye Master Agreement, including any Schedules attached thereto (as indicated in the Signature Page), the Signature Page thereof, and any Service Order(s) executed between Magic and Customer.  

“Customer Data” means any data (whether owned or controlled by Customer and/or any third party) that is received, uploaded or collected from or on behalf of Customer or Authorized Users by or through their use of the Service.  

“Control” means the power to direct the management and policies of a person or entity, through ownership of voting securities, by contract, or otherwise. “Controlling” and “Controlled” have correlative meanings.  

“Documentation” means any user guide, manual or similar documentation relating to the Service that Magic provides to Customer, as revised from time to time. 

“Magic” means the entity which information is specified under the column titled “Magic” in section 2 of the Signature Page of this Agreement and that has indicated its assent to the terms and conditions of this Agreement by signing in the appropriate signature block in the Signature Page of this Agreement. 

“Professional Services” means development, training, project management, installation, configuration, implementation, quality assurance and/or any other services provided to Customer, other than support and maintenance services provided pursuant to Schedule 3 (Professional Services Agreement). 

“Person” means an individual, partnership, firm, corporation, limited liability company, joint venture, association, trust, unincorporated organization, or other legal entity or organization.  

“Service” the FactoryEye computer application program(s) owned by Magic or its licensor(s) and licensed hereunder on a software-as-a-service basis, and any new releases, updates or versions thereof made available by Magic during any Subscription Term.  

“Territory” means the geographical territory/ies identified in the Service Order.   

LICENSE GRANT 

Subject to the terms and conditions hereof, and subject to Customer’s full and timely compliance with its entire warranties, representations and obligations hereunder, including without limitation, continuous payment in a timely manner of Fees, Magic grants to the Customer a non-exclusive, non-transferable, limited, revocable, royalty-bearing license (with no right to sub-license) to access and use the Service during the Term for Customer’s internal business purposes. The use of the Service by Customer is limited to the number of named users or other usage criteria set out in the Service Order. Customer undertakes to use the Service solely for its own account, and not as an agent, distributor, agent, broker, or reseller for any third party or as a bureau service.  

Employees, consultants, or agents of Customer that are designated by Customer to use the Service (“Authorized Users”) may access and use the Service solely for the purposes and according to the procedures described in the Agreement. Customer shall procure that Authorized Users comply with Customer’s obligations under the Agreement. Customer is liable to Magic, and as between the parties, to any other Person for the acts and omissions of each Authorized User. 

Magic may, from time to time, make changes to the Service that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Service, (ii) the competitive strength of or market for the Service, or (iii) the Service’s cost efficiency or performance; or (b) to comply with applicable law. Magic shall use commercially reasonable efforts to ensure that any such change will not materially diminish the features or functionality of the Service. 

Notwithstanding any other provision of the Agreement, Magic may monitor use of the Service to (i) determine Customer’s compliance with the terms of the Agreement and (ii) provide support and/or other requested services. 

 

FEES AND PAYMENT TERMS  

Customer shall pay Magic the subscription fees set out in the Service Order (“Fees”). Unless otherwise specified in the Service Order, Fees are non-refundable. Fees shall be paid without deduction, counterclaim or set-off of any kind or nature. Magic will invoice Customer and Customer shall pay the Fees in accordance with the billing frequency and payment terms set out in the Service Order. All Fees are exclusive of any tax, levy, or similar governmental charge that may be assessed by any jurisdiction, which, if applicable, shall be borne solely by Customer.  

TIME IS OF THE ESSENCE REGARDING ALL PAYMENTS DUE TO MAGIC. If Customer fails to make any payment to Magic under the Agreement on the due date, then, in addition to any other right or remedy available to Magic hereunder or under any applicable law or in equity, (i) Customer shall pay Magic an interest on the amount outstanding, in the amount of 1.5% per month, calculated from the date on which such payment was due until such payment is received by Magic, and (ii) Magic shall have the right to immediately disable without notice Customer’s access and use of the Service or any part thereof until all outstanding payments, plus all applicable interest, are made in full.  

TITLE AND OWNERSHIP 

Other than the limited license to use the Service granted under Section 3 of these General Terms, no other right, title or interest, of any kind or nature, in or to the Service and/or any other intellectual property rights of Magic, and/or any part thereof, are transferred, conveyed and/or granted to Customer by virtue of the Agreement or otherwise. All rights, title and interests, including without limitation, all intellectual property rights in and to the Service remain exclusively vested in, and be the sole and exclusive property of Magic, its Affiliates or and/or its or their licensors. 

Except to the extent expressly stated otherwise in the Agreement, Customer shall not nor attempt to, nor permit, procure, enable or request any other person to (a) copy, modify or create derivative works or improvements based on the Service, reverse engineer, decompile, reverse compile, reverse assemble, translate or disassemble all or any portion of the Service, (b) use the Service to (i) create, market or distribute any product or service that is competitive with the Service, or (ii) act as a service bureau on behalf of, or otherwise provide processing or support to, any person, (c) circumvent, disable, or interfere with security- related features of the Service or features that prevent or restrict use, access to, or copying of the Service or other data, or that enforce limitations on use of the Service, (d) transfer, sell, lease, license, sublicense, distribute, disclose, divulge or make available the Service to, or permit use of or access to the Service by, any person other than Customer and Authorized Users, (e) remove, alter or obscure any intellectual property notice or other restrictive notice or legend contained or included in the Service, or (f) contest, challenge or otherwise make any claim or take any action adverse to Magic or its licensor’s ownership of, or interest in, the Service, including the intellectual property rights therein. 

CUSTOMER DATA  

As between Customer and Magic, Customer owns all right, title and interest in and to Customer Data, and Magic does not acquire any rights therein. Customer is solely responsible for the legality, reliability, integrity, accuracy, quality and non-infringement of Customer Data and the compliance thereof with all applicable laws and regulations. Magic reserves the right, exercisable at its sole discretion, to remove Customer Data or any part thereof without notice or explanation if Magic believes that the Customer Data does not comply with the terms of this Section. 

The Service includes back up of Customer Data in accordance with the back up capacity that was order in the Service Order. With the exception of the foregoing, Magic does not provide back services and it is Customer’s responsibility to regularly and independently save and back up the Customer Data.  

Customer grants Magic and its Affiliates a non-exclusive, worldwide, royalty free right and license to measure, reproduce, distribute, create derivative works based on, perform analysis on (including the creation of analytics, metrics, metadata, evaluations and statistics) on and aggregate with other data and otherwise use Customer Data, (a) during the Term, in connection with the provision of the Service and the performance of its other obligations under the Agreement, and (b) in perpetuity, solely in an anonymized and aggregated form that will not identify the Customer, for statistical, research, marketing and promotional purposes, including for purposes of enhancing and/or optimizing the Service or developing other products of Magic without attribution to Customer.  

PERSONAL DATA 

Customer acknowledges that the use by Customer of the Service may involve the processing by Magic, on Customer’s behalf, of personal data of certain data subjects, including, but not limited to, Customer’s clients, employees and service providers. Customer further acknowledges that for the purposes of the Data Protection Laws, Magic is the processor and Customer is the controller with respect to such personal data. Customer agrees to comply with, abide by and adhere to the provisions of the Data Processing Addendum attached as Schedule 4 to the Agreement (Data Processing Addendum), setting forth the roles and responsibilities of Customer and Magic with respect to such processing. “Data Protection Laws” means any EU or UK law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of personal data to which a party is subject, including the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and the UK General Data Protection Regulation (“UK GDPR”), as amended or re-enacted from time to time. The terms “controller”, “processor”, “data subject”, “personal data”, and “processing” shall have the meaning given in the Data Protection Laws.  

SERVICE LEVELS.  

Magic will provide the Customer with support and maintenance services in respect of the Service in accordance with Service Level Agreement attached to the Agreement as Schedule 2 (Service Level Agreement).   

PROFESSIONAL SERVICES.  

If specifically agreed in a Service Order, Magic will provide the Customer with Professional Services in accordance with a Statement of Work, to be attached as Schedule 5 to the Agreement and subject to the execution by Magic and Customer of the Professional Services Agreement attached as Schedule 3 to the Agreement, which governs the provision of such Professional Services. In consideration for providing Professional Services Customer shall pay Magic the Professional Services Fee set out in the Service Order.  

LIMITED WARRANTY 

Magic shall use reasonable efforts consistent with good industry practice to maintain the Service in a manner which minimizes errors and interruption in the Service. However, Magic does not guarantee, represent or warrant that the Service will be uninterrupted or error-free. Customer’s sole and exclusive remedy with respect to any unavailability, error, interruption or failure of the Service shall be for Magic to attempt to correct such failures in accordance with the Service Level Agreement and, where applicable, payment of the Service Level Credits as set out in the Service Level Agreement. With the exception of the foregoing, the Service is provided on an "as is", “as available” basis, without any representations or warranties, express or implied including but not limited to implied warranties of merchantability or fitness for purpose. To the fullest extent permitted by law, Magic excludes all representations and warranties relating to the Service. 

Customer shall be responsible at its sole costs and expense for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, whether owned or controlled by Customer or leased from any third-party supplier, including, without limitation, modems, hardware, servers, software, operating systems, network connections and the like (collectively, “Customer Resources”). Magic shall not be liable for errors or interruptions in the Service or the use (or inability to use) thereof by Customer associated with any of the Customer Resources, or the interconnection or integration thereof with the Service, or for any disruptions or failures of any network connections.  

EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE THE SERVICE IS PROVIDED "AS IS". EXCEPT AS RESTRICTED BY LAW, MAGIC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY OR MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NONINFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, (a) MAGIC MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, OR BE ACCURATE, COMPLETE, OR ERROR FREE; AND (b) MAGIC DISCLAIMS ALL LIABILITY ARISING FROM OR RELATING TO DECISIONS MADE BY CUSTOMER OR ANY AUTHORIZED USER BASED ON USE OF THE SERVICE.  

LIMITED LIABILITY.  

To the fullest extent permitted by law, and notwithstanding anything else to the contrary in the Agreement, under no circumstances shall Magic or any of its Affiliates, employees, directors, officers or licensors, be liable for (i) any consequential, indirect, moral or exemplary damages incurred by the Customer of any nature whatsoever, and/or (ii) loss of profits or revenues, anticipated savings, interruption of business, loss or corruption of data, loss of Customer Data, loss of opportunities or any indirect economic losses, regardless of whether Magic shall be advised, shall have other reason to know, or in fact shall know of the possibility of the foregoing.  

Magic’s total, aggregate liability, in contract, negligence, strict liability, tort or otherwise, arising by reason of or in connection with the Agreement or the supply or use of the Service, shall be limited to direct and actual damages only and shall not exceed, throughout the entire Term, for all events and causes of action together, an amount that, together with amounts associated with all other claims, is equal to the Fees paid by Customer to Magic during the 6 months immediately preceding the month during which the claim that gave rise to the liability arose.  

The limitations of liability in this Section shall not apply to liability arising from (i) fraud or fraudulent misrepresentation or (ii) death or personal injury arising from Magic’s gross negligence.  

INDEMNITY 

Subject to Section 11(b), Magic shall indemnify and defend Customer from and against all amounts (including attorneys’ fees and court costs) finally awarded against Customer in any third-party claim that the Service, as provided by Magic to Customer, infringe the intellectual property rights of that third party (an “IP Claim”).  

Magic has no obligation to indemnify or defend Customer for any IP Claim to the extent it arises out of or relates to (i) Customer’s use of the Service in combination or in conjunction with Customer Data or any other materials, software, hardware, intellectual property or services not furnished or approved by Magic, where there would be no basis for the IP Claim but for such combination, (ii) any breach of the Agreement by Customer or any use other than as permitted in this Agreement, or (iii) Customer’s failure to implement a work-around, release, update or other modification to or for the Service as provided or directed by Magic or use of an allegedly infringing component of the Service after Magic has made available an update to the allegedly infringing component (the IP Claims described in (i)-(iii) are “Customer IP Claims”).  

In the defense, settlement or avoidance of any IP Claim, and in addition to, but not in lieu of, any other obligation set forth in this Section, Magic may, at its option and its expense, (a) replace or modify any allegedly infringing component of the Service with non-infringing items and/or services that are reasonably comparable to the component being replaced, and/or (b) obtain a license for Customer to continue using and receiving any of the allegedly infringing component. If Magic determines in its good-faith business judgment that the remedies set forth in paragraphs (a) and (b) in the foregoing sentence are not available on commercially reasonable terms, Magic may terminate the Agreement and refund to Customer, as Customer’s sole remedy, a pro rata refund of any remaining prepaid Fees applicable to the Subscription Term. 

Customer acknowledges that sub-sections 12(a)-12(c) above states Magic’s entire responsibility and liability and Customer’s sole and exclusive remedy for any actual or alleged infringement of third-party intellectual property rights in connection with the Service. 

Customer shall indemnify and defend Magic, its directors, and its officers from and against any and all damages, expenses, losses, liabilities, obligations, claims, demands, suits, actions, investigations, proceedings, and causes of action (collectively, “Losses”) arising out of or relating to any claim to the extent the claim arises out of or relates to (a) Customer’s or Authorized Users’ access to or use of the Service not in accordance with the Agreement, (b) Magic’s authorized use of Customer Data, (c) any IP Claim to the extent it is a Customer IP Claim. 

The indemnity above is conditioned on all of the following: (i) each party (the “Indemnified Party”) will supply the other Party (the “Indemnitor”) with prompt written notice of any claims; Indemnitor will have sole control of the defense of any claims, provided that Indemnified Party may participate in the defense and settlement of claims at its own expense; (ii) Indemnified Party shall not settle, compromise or make any admittance in any claim without the Indemnitor’s prior written consent; (iii) any settlement of claims that imparts any obligation or liability on Indemnified Party will require Indemnified Party’s prior written consent; (iv) Indemnified Party will supply Indemnitor with all reasonable assistance and information in the defense and settlement of claims at Indemnitor’s expense. 

CONFIDENTIALITY 

Neither party shall disclose to any third party any confidential information concerning its business or affairs (however recorded or preserved) that is disclosed by a party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt or use of the Service (together its “Representatives”) to the other party and that party’s Representatives in connection with the Agreement that is either labelled as such or else that should reasonably be considered as confidential because of its nature and the manner of its disclosure (“Confidential Information”), except as permitted by Section 11(b). Each party shall maintain in confidence and protect the Confidential Information of the other party, exercising at least the same degree of care as it exercises for its own Confidential Information, but not less than a reasonable degree of care. “Confidential Information” excludes information that (a) is or becomes generally available to and known by the public, other than due to receiving party’s breach of this Section, (b) receiving party rightfully possessed without a duty of confidentiality before obtaining it from disclosing party, (c) receiving party received on an unrestricted basis from a source unrelated to either party and not under a duty of confidentiality with respect to the information, or (d) receiving party developed independently of the disclosed information and for which receiving party provides documentary evidence maintained contemporaneously with the development that verifies the development was independent, except that the Service is Magic’s Confidential Information and the Customer Data is Customer’s Confidential Information. 

Each party may disclose the other party's Confidential Information: (a) to its Representatives who need to know such Confidential Information for the purposes of carrying out the party's obligations under the Agreement. Each party shall ensure that its Representatives to whom it discloses the other party’s Confidential Information comply with this Section; and (b) as may be required by Law or any governmental authority. Neither party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under the Contract. 

Each party’s obligations under this Section regarding the other party’s Confidential Information terminate five years after the end of the Term, provided that such obligations shall survive in perpetuity with respect to any Confidential Information that is a trade secret.  

Magic may refer to Customer, the provision of the Service and the existence of the Agreement on Magic’s website and in advertising and reference materials including materials provided to potential clients. With the exception of the foregoing, each party shall seek the prior consent of the other party to the release of any press release or case study referring to the other party. 

TERM AND TERMINATION 

The term of the Agreement commences on Start Date set out in the Service Order and, unless terminated earlier in accordance with its terms, shall continue for the initial subscription term and, if applicable, any renewal subscription term set out in the Service Order (each, a “Subscription Term” and collectively, the “Term”).  

The Agreement may be terminated by either party (“Injured Party”) forthwith on giving notice in writing to the other Party (“Defaulting Party”) if the Defaulting Party has breached any provision of the Agreement and (in the case of a breach capable of being remedied) has failed to cure such breach within 10 business days after receipt of a written notice to that effect from the Injured Party. 

Either Party will have the right to terminate the Agreement by providing written notice to the other party upon the occurrence of any of the following events, but only to the extent such events are not dismissed within 60 days from the date such events first occurred:  (i) a receiver is appointed for the other party; (ii) the other party makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (iii) the other party commences or has commenced against it, proceedings under any bankruptcy law; or (iv) the other party ceases to do business. 

Upon the expiration or termination of the Agreement for any reason whatsoever, (i) the license granted to Customer hereunder shall immediately expire and Magic shall disable Customer’s access to and use of the Service, (ii) each party will return all Confidential Information to the disclosing party, upon the disclosing party’s written request, (iii) at the Customer request, Magic will provide to Customer a digital copy of the latest backup of Customer Data in a format determined by Magic, (iv) Customer shall pay to Magic all outstanding Fees within 10 days of the date termination occurred. 

Sections 4,5,6,9,10,11,12, 13d., 14 and 15 of these General Terms shall survive any termination or expiration of the Agreement, for any reason whatsoever. 

GOVERNING LAW AND JURISDICTION  

This Agreement shall be governed by and construed in accordance with the laws of England and Wales. The Parties accept the exclusive jurisdiction of the competent courts of the jurisdiction of the registered domicile or principle place of business of the Magic Affiliate which signed the Signature Page of the Agreement (defined herein as “Magic”). Notwithstanding the above, Magic shall have the right commence proceedings in any other court of its choice of appropriate jurisdiction to obtain an injunction or other equitable relief for protection of its intellectual property rights or Confidential Information. 

GENERAL PROVISIONS 

Customer acknowledges and agrees that parts, functionalities or features of the Service may be licensed or made available to Magic by its licensors. Notwithstanding anything to the contrary in the Agreement, any indemnity or warranty given by Magic with respect to those parts, functionalities or features of the Service which are licensed or made available by Magic’s licensors is limited to the indemnity and warranty provided to Magic by such licensors. Customer acknowledges and agrees that, if it breaches any of its obligations under the Agreement, Magic’s licensors may suffer loss or damage. Customer agrees that in such event Magic licensors shall be entitled to enforce the provisions of the Agreement directly against Customer in accordance with this Section and with applicable law. With the exception of the foregoing, the Agreement is for the sole benefit of the parties, no third party is a beneficiary of the Agreement and no terms of the Agreement are enforceable by any third party. 

Customer may not assign the Agreement or any rights or obligations hereunder, by contract, operation of law, change of control, or in any other manner, without the prior written consent of Magic. All assignments or attempted assignments in violation of this Section shall be null and void. 

Except as provided in any express provision of the Agreement, any notice, request, approval, authorization, consent, demand or other communication required or permitted to be given or made pursuant to the Agreement will be in writing and will be sent by commercial overnight courier and addressed to the parties’ address, as set forth in the Service Order.  

The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition of the Agreement shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other party. 

This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior oral and written agreements and understandings relating thereto. No amendment, alteration, or modification of the Agreement shall be binding unless made in writing and signed by the parties. 

If any provision of the Agreement is found to be unenforceable, such provision will be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable, and the Agreement will otherwise remain in full force and effect. Headings in the Agreement are for convenience of reference only and are not part of the substance hereof. References to “Sections” are to sections of these General Terms and Conditions. References to “Schedules” are to schedules referenced in the Signature Page. Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders. Any phrase introduced by the word “including”, “include” or any similar expressions shall be construed as illustrative and the words following any such word shall not limit the sense of the words preceding such words.  

Neither party shall be liable for delay in performance hereunder due to causes beyond its reasonable control, including but not limited to, acts of God, fires, strikes, acts of war or intervention by any governmental authority; however, each party shall take reasonable steps to minimize any such delay. In the event of any delay due to force majeure, the date or dates for performance of the Agreement by either Party shall be extended for a period equal to the time lost by reason of the delay. Either Party shall have the right to terminate the Agreement if such extension of the other party's performance under this Section shall be for a period greater than sixty (60) days. 

The relationship of the parties is that of independent contractors. Neither party is, nor shall be considered to be, an agent, or representative of the other and nothing herein is intended to, or shall constitute, create, give effect to, or otherwise recognize a joint venture or partnership of any kind or be construed to give either party the power to direct or control the day-to-day activities of the other.  

This Agreement may be executed in counterparts and/or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. 

Except as expressly provided otherwise in the Agreement, each party shall be responsible for all costs and expenses incurred in connection with the Agreement and its performance hereunder. 

In the event of a conflict between any provision in these General Terms or any Schedule and the Service Order, the applicable provisions of these Terms and Conditions or the relevant Schedule shall take precedence, unless expressly provided otherwise in the Service Order. In the event of any conflict between the terms and conditions of a Schedule and these General Terms, the terms and conditions of these General Terms will prevail unless it is specifically and explicitly agreed in such Schedule that a deviation from these General Terms is intended. In the order of precedence between Schedules, Schedule 1 prevails over Schedule 2, Schedule 3 prevails over Schedule 4 and so forth.