Parties
This Footfall Analytics Installation Agreement (the “Agreement”) is entered into by and among MRI Software LLC (“MRI”), the Leasehold Owner listed in the Consent Letter, and the Property Owner listed in Consent Letter. The Leasehold Owner and the Building Owner being jointly referred to as the Licensor. This Agreement shall become effective as of the latest signature date on the Consent Letter (the “Effective Date”).
Background
- MRI is a global software organization that provides solutions to manage commercial, residential, and retail properties and workplaces. One of those solutions is MRI On Location Footfall Analytics, which allows businesses to understand customer behavior, understand customer profiles, analyze location successes, and make impactful, data-driven decisions.
- The Licensor maintains a property in a location where MRI would like to capture footfall analytics.
- MRI has requested permission to install its footfall system on part of the property and to maintain the same. In exchange for its permission to install the footfall system on the property, Licensor will receive the footfall analytics for the property.
Agreed Terms
Consent
The Licensor grants to MRI a non-exclusive right during the Term to: (a) carry out the installation at the Property (each as further described herein); (b) operate and use the Equipment to capture and transmit footfall data; and (c) subject to the Leasehold Owner’s instructions and at all reasonable times (except in emergency) to enter into and upon the Property for the purpose of inspecting, maintaining, and repairing the Equipment. Such rights of entry shall be restricted to such part or parts of the Property as are necessary for access to the System for these purposes.
Property Description
The Property shall be the locations and descriptions outlined on the Consent Letter
Installation and Maintenance
MRI will install the equipment listed in the Consent Letter along with relevant signage (the “Equipment”) and in a location on the Properties as listed in the Consent Letter. The Parties shall agree upon a mutually acceptable installation date and time, which shall be no more than thirty (30) days following the Effective Date of this Agreement. MRI shall undertake to install the Equipment in a professional and workmanlike manner and in accordance with good building and other relevant practices, codes and guidance.
MRI shall keep the Equipment in good and substantial repair and condition and properly maintained and serviced. MRI shall provide not less than three (3) business days’ notice to the Licensor of its intention to carry out such maintenance on the physical Equipment. For clarification purposes, MRI need not provide notice of its maintenance on the electronic Equipment provided MRI will not physically be at the Property.
At all times during the Term of this Agreement, MRI agrees to: (i) cause as little disturbance and inconvenience as reasonably possible to the Licensor and of any neighboring land; (ii) not do anything or allow anything to be done at the Property that may interfere with or damage plant, equipment, chattels or any fittings belonging to the Licensor, or (iii) not interfere with, impede or obstruct access to the Property. MRI shall take all proper steps to ensure that carrying out the installation and maintenance of the Equipment does not make any of the following unsafe: the structure of the Property, any plant or machinery at the Property, any neighboring land or building or the Licensor’s use of the Property. MRI must not infringe any of their rights nor the rights of any other person in relation to the Property.
Obligations of MRI
MRI shall comply with all laws and relevant professional codes of practice applicable to the use of the Equipment and shall obtain and comply with any consents required under any legislation in connection with such use.
MRI will be responsible for cost, repair and maintenance of the Equipment. If at any time during the installation and maintenance of the Equipment, MRI or its agents cause any damage to the Property, MRI shall promptly correct, to the reasonable satisfaction of the Owner, any damage (including decorative damage) to the Property such that it is in the same condition post-repair as it was prior to the start of the installation. MRI may carry out any of its obligations under this Agreement through the use of an agent or contractor operating on its behalf provided however that MRI shall remain at all times responsible for the acts and omission of the designee as it if performed the act or omission itself.
Term and Termination
This Agreement shall commence on the Effective Date and shall continue for consecutive annual periods until terminated in accordance with the provisions of the Agreement.
Notwithstanding any other provision of this Agreement to the contrary, either party may terminate this Agreement with or without cause by giving the other party at least thirty (30) days’ prior written notice of its election to terminate. Such termination will be effective on the date stated in the notice.
Following termination of the Agreement the rights under this Agreement shall be relinquished. MRI shall promptly remove the Equipment from the Property and Licensors shall cease accessing the MRI OnLocation for Footfall Analytics services. The termination of this Agreement shall have no impact on any agreements between the parties which may be separate and apart from this Agreement.
Ownership
The Equipment, the data captured through the Equipment, the MRI OnLocation for Footfall Analytics, and all derivatives thereto shall at all times remain the sole property of MRI. Nothing in this Agreement shall otherwise grant ownership rights to either Party.
Warranty
NEITHER PARTY GIVES ANY WARRANTY OF ANY KIND UNDER THIS AGREEMENT. EACH PARTY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (i) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY; (iii) ANY AND ALL IMPLIED WARRANTIES, CONDITIONS OR OTHER TERM ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY MRI, ITS AFFILIATES, CONTRACTORS, OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN.
Liability and Indemnification
MRI will defend or settle, at its option and expense, any action, suit or proceeding brought against Licensor by a third party claiming that the use of the Equipment violates a law (“Third Party Claim”). MRI will indemnify Licensor against all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such Third Party Claim, provided that Licensor: (i) promptly gives written notice of the Third Party Claim to MRI; (ii) gives MRI sole control of the defense and settlement of the Third Party Claim; (iii) provides MRI, at MRI’s expense, with all available information and assistance relating to the Third Party Claim and cooperates with MRI and its counsel; (iv) does not compromise or settle such Third Party Claim; and (v) has not modified or adjusted the Equipment in any way. MRI has no obligation to the extent any Third Party Claim results from: (i) Licensors having modified the Equipment or denied access to MRI to maintain the equipment.
THIS SECTION LIMITS LIABILITY ARISING UNDER OR IN RELATION TO THE AGREEMENT (WHETHER ARISING FOR BREACH OF CONTRACT, MISREPRESENTATION (WHETHER TORTIOUS OR STATUTORY), TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE) (“SOURCES OF LIABILITY”). TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED UNDER THE AGREEMENT) TO THE OTHER OR ANY THIRD PARTIES UNDER THE SOURCES OF LIABILITY, EXCLUDING (i) INDEMNIFICATION LIABILITY, (ii) DAMAGE TO PROPERTY CAUSED DIRECTLY BY THE INSTALLATION AND MAINTENANCE OF THE EQUIPMENT BY MRI’S AGENTS, (iii) GROSS NEGLIGENCE, (iv) PERSONAL INJURY, PHYSICAL DAMAGE, OR DEATH WILL BE LIMITED TO $1.
Insurance
MRI shall at all times during the term of the Agreement hold commercial general liability insurance for a coverage through a financially sound and reputable insurer with coverage amounts not less than $1,000,000 per occurrence/$2,000,000 in annual aggregate coverage.
Data Privacy
MRI shall act as the sole data controller (as defined under the UK Data Protection Act or General Data Protection Regulation, as applicable) with respect to the personal data captured with the Equipment. The Licensor shall assist MRI with any reasonable requests, at MRI’s cost, which MRI believes is appropriate to carry out its role as controller. At no point will the Licensor receive access to the personal data captured via the Equipment.
MRI may use the Equipment to collect live footfall and vehicle data from the areas around the Equipment. MRI export from the Equipment to the MRI cloud the non-identifiable data that was collected. The non-identifiable data is no longer considered Personal Data under the relevant privacy regulations.
From time to time, MRI may need to capture identifiable footage from the Equipment for support and troubleshooting purposes and may use its processors to assist with such activities. Those processors and subprocessors may be located outside of the country of origin and transfers will be done in accordance with the relevant laws. A list of MRI’s processors and subprocessors may be found at Subprocessors – MRI Software.
General Terms
- Governing Law and Jurisdiction
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the state of Ohio. The parties irrevocably agree that the courts of the state of Ohio shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims). - Interpretation
The headings in the Agreement shall not be used to construe or interpret the Agreement. The Agreement shall not be construed in favor of or against a Party based on the author of the document. If any provision of the Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. - Notices
Any notice required or permitted to be sent under the Agreement shall be delivered by hand; by overnight courier; by certified mail, return receipt requested; or in a conspicuous manner to the Client within the product, to the Parties first set forth in the Agreement or to such other address of the Parties designated in writing in accordance with this subsection. - Force Majeure
Neither Party shall be liable for any delay or failure to perform (except payment obligations) caused by events beyond its reasonable control, including, if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the Party seeking protection under this Section. Such events, occurrences, or causes shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, or explosions (“Force Majeure Events”). Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. - Assignments
Either Party may novate, transfer, or assign the Agreement and all of its rights and obligations herein without Client’s approval to its parent company or other affiliated company, to a successor by operation of law, or by reason of the sale or transfer of all or substantially all of its stock or assets to another entity. Neither Party may otherwise assign or transfer the Agreement without the prior written consent of the other Party. - Relationship and Third-Party Rights
The Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither Party may bind the other Party or act in a manner implying any relationship other than independent contractor. This Agreement is for the benefit of the Parties and their successors and permitted assigns, and (except as provided expressly elsewhere in Agreement) does not confer any rights or benefits on any third party. - Survival
The following provisions will survive any termination or expiration of the Agreement: Term and Termination; Ownership; Liability and Indemnification; and General Terms. - No Waiver
Any waiver of the provisions of the Agreement or of a Party’s rights or remedies under the Agreement must be in writing and signed by an authorized representative of the waiving Party. Failure to enforce any provision shall not constitute a waiver of that provision or any other provision. The rights and remedies herein are cumulative and not exclusive of any other rights or remedies available at law or in equity. Failure, neglect, or delay by a Party to enforce the provisions of the Agreement or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such Party’s rights under the Agreement and shall not in any way affect the validity of the whole or any part of the Agreement or prejudice such Party’s right to take subsequent action. - Entire Agreement
The Agreement constitutes the Parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the Parties relating to its subject matter as well as any prior contractual agreements between the Parties related to the subject matter herein. This Agreement shall have no impact on any agreements between the parties which may be separate and apart from this Agreement. No modification to the Agreement will be binding unless in writing and includes a signature by an authorized representative of each Party.