Acceptance of Terms and Relationship to Master Service Agreement
These Terms of Use (these “Terms”) constitute a legally binding agreement between ShelfOptix, LLC, its subsidiaries, and its affiliates (collectively, “ShelfOptix,” “we,” “us,” or “our”) and you, the Person accessing or using the Services, and, where applicable, the Person on whose behalf you are acting (collectively, “User” or “you”, or “your”). These Terms govern your access to and use of the ShelfOptix proprietary online analytics dashboard, client portals, data visualization interfaces, and any associated applications, content, or materials made available through the portal (collectively, the “Dashboard”).
A. B2B Applicability and Authorization
The Services, Dashboard and Deliverables are strictly a business-to-business (“B2B”) commercial tool intended solely for use by authorized representatives of Persons that have entered into a commercial relationship with ShelfOptix (“Clients”). By receiving the Services and accessing the Dashboard, you represent and warrant that: (i) you are an authorized representative of a Client; (ii) you have the legal authority to bind the Client to these Terms; and (iii) you are accessing the Dashboard solely for purposes authorized by the Client and in accordance with the Service Agreements and these Terms.
B. Manner of Acceptance
C. Precedence of Master Services Agreement
ShelfOptix recognizes that each Client may have executed a separate Master Services Agreement, SOW, Pilot Agreement, or other written contract with ShelfOptix governing the provision of certain services as described therein (each, a “Service Agreement”, and collectively, the “Service Agreements”). Capitalized terms used but not otherwise defined herein shall have the meaning as provided to such term in the applicable Service Agreement.
- These Terms are intended to supplement the Service Agreements regarding specific rules of conduct, receipt of and access for the Services and Dashboard, as applicable. However, in the event of a direct conflict or inconsistency between a provision in these Terms and a provision in the executed Service Agreements, the terms of the Master Service Agreement shall control to the extent of such conflict.
- Nothing in these Terms shall be deemed to expand the rights of the Client or limit the protections afforded to ShelfOptix under the Service Agreements.
Definitions
To ensure clarity regarding data rights and usage permissions, the following definitions apply throughout these Terms:
A. Affiliate
“Affiliate” of a person means any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
B. API
“API” means Application Programming Interface.
C. Client Data
“Client Data” means all non-public data, information, materials, files, images, and content that Client uploads, delivers or transmits to ShelfOptix for processing in connection with the Services and Dashboard, regardless of format, including, without limitation, specific retail store location details, inventory records, price files, sales data, and Client trademarks. Notwithstanding anything contained herein to the contrary, “Client Data” does not include, and Client expressly acknowledges that it has no ownership interest in, Robot Data, Content, Aggregated Data, Derived Data, or any analytics, models, insights, annotations, or other outputs created or generated by ShelfOptix from Client Data, Robot Data, Content, Aggregated Data, and/or Derived Data.
D. Confidential Information
“Confidential Information” means any information that is treated as confidential by a party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, Trade Secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information does not include information that: (a) is or becomes generally available to the public other than through the receiving Party’s breach of any obligation owed to the disclosing Party; (b) was known to the receiving Party prior to its disclosure by the disclosing Party without breach of any obligation owed to the disclosing Party; (c) is developed by the receiving Party independently of, and without reference to, any Confidential Information of the disclosing Party; or (d) is received by the receiving Party from a third party who is not under any obligation to the disclosing Party to maintain the confidentiality of such information.
E. Content
“Content” means electronic data, output, reports, statistics, formatting, look and feel, information and/or other types of content (including third party websites and any information and data from the same and web-based services), if any, that is displayed, generated, derived from, produced, distributed or otherwise made accessible to Client or User via the Services and/or Dashboard, but does not include Client Data, Robot Data, Aggregated Data, Derived Data or Personal Information.
F. Deliverable
“Deliverable” means any deliverable to be provided to Client in connection with the Services, as detailed in the applicable SOW, if any, excluding any Client Data.
G. Derived Data
“Derived Data” means proprietary data sets, market insights, benchmarks, and analytics generated by ShelfOptix’s processing algorithms, including any improvements to ShelfOptix’s machine learning models resulting from such processing.
H. Documentation
“Documentation” means any then-current user manual, handbook or other documentation, in any format or medium, for a Service and/or the Dashboard that is made available by ShelfOptix for Client and its Users’ use, including: (a) functional, technical, design and performance specifications; (b) installation, configuration, administration, operation and maintenance procedures and instructions; and (c) training guides, user manuals and other training materials.
I. Intellectual Property Rights
“Intellectual Property Rights” means: (a) all copyright rights under the copyright Laws of the United States and all other countries for the full term thereof, whether registered or unregistered, including all renewals, extensions, reversions or restorations of copyrights now or hereafter provided for by Law and all rights to make applications for copyright registrations and recordations, regardless of the medium of fixation or means of expression; (b) all rights to and under all new and useful, patentable and unpatentable inventions, discoveries, designs, technology and art, including all improvements thereof and all know-how related thereto, including all letters patent and patent applications in the United States and all other countries and all reissues, reexaminations, extensions, renewals, divisions and continuations thereof; (c) all statutory and common law trademark and service mark rights and all applications and registrations to issue therefrom; (d) internet domain names and applications therefor and URLs; (e) electronic or other databases to the extent protected by intellectual property or other Law in any jurisdiction; (f) all Trade Secrets; (g) all know-how; and (h) all worldwide intellectual property rights, industrial property rights, proprietary rights and common law rights, whether registered or unregistered, not otherwise included in the foregoing, including all trade dress, algorithms, concepts, processes, methods and protocols.
J. Law
“Law” means each of the following to the extent it is applicable to the provision in which the term Law appears: conventions, treaties, common law, statutes, codes, laws, regulations, rules, judgments, orders, ordinances, and mandates.
K. Person
“Person” means any natural individual, corporation, company, partnership, limited liability company, trust, association, joint venture, governmental authority (including any agency, department, or political subdivision thereof), or other legal entity or organization, whether incorporated or unincorporated.
L. Personal Information
“Personal Information” means personally identifiable information that identifies, relates to, describes or is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, and includes specific elements of “personal information” as defined in data protection Laws, including but not limited to social security numbers, financial information, bank account information, tax returns, credit card numbers, or any other financial information, medical information, or educational information.
M. Robot Data
“Robot Data” means the raw visual, spatial, and telemetry data captured by ShelfOptix robotics systems deployed in Client facilities, including images of shelves, products, and planograms.
N. Third-Party Materials
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, hardware, documents, data, content, specifications, products, equipment, or components of or relating to the Services and/or Dashboard that are not proprietary to ShelfOptix.
O. Trade Secret
“Trade Secret” means, without limitation and without regard to form, any technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, lists of actual or potential customers or suppliers, etc., which is not commonly known by or available to the public, and which: (a) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
User Accounts and Security Obligations
A. Access Credentials
Access to the Services and Dashboard are restricted to the Client and authorized Users who have been provisioned with unique login credentials (username and password) or authenticated via Single Sign-On (“Credentials”). You are solely responsible for maintaining the confidentiality and security of your Credentials. You may not share, assign, or transfer your Credentials to any other Person, including other employees within your organization who have not been separately authorized.
B. Security Responsibilities
You agree to notify ShelfOptix immediately of any unauthorized use of your Credentials or any other breach of security known to you. ShelfOptix shall not be liable for any loss or damage arising from your failure to comply with these security obligations. You acknowledge that ShelfOptix reserves the right, at its sole discretion, to terminate or suspend your access to the Dashboard immediately and without notice if we detect suspicious activity, unauthorized sharing of Credentials, or a violation of these Terms.
Grant of License and Scope of Access
A. Limited License
Subject to your strict compliance with these Terms and the applicable Service Agreements, ShelfOptix hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to the Services, the Deliverables, and to access and view the Dashboard solely for the Client’s internal business operations. This license is restricted to the specific modules, data sets, and features authorized by your specific User role. This license does not include any rights to sublicense, distribute, or otherwise make available the Services, Deliverables, and/or Dashboard to any third party without prior written consent of ShelfOptix. ShelfOptix reserves the right to audit Client’s use of the Services, Deliverables, and/or Dashboard to ensure compliance with the terms of the Service Agreements.
B. Prohibited Conduct
The license granted herein is subject to the following restrictions. The Client and you expressly agree that you shall not, and shall not permit any third party to:
- Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying algorithms, or proprietary models of the Services, Dashboard and/or the robotics systems.
- Access the Services and/or Dashboard for the purpose of building a competitive product or service, or for copying its features, functions, or user interface. You are strictly prohibited from using the Services and/or Dashboard to collect performance measurements or conduct benchmarking analysis for public disclosure or competitive intelligence.
- Use any robot, spider, scraper, deep-link, or other automated data gathering or extraction tool, program, algorithm, or methodology to access, acquire, copy, or monitor the Services, Dashboard and/or any portion thereof, without ShelfOptix’s express prior written consent. Accessing or interacting with any ShelfOptix API or integration endpoint (if provided) is subject to these Terms and any additional API terms issued by ShelfOptix.
- Attempt to gain unauthorized access to any portion or feature of the Services, Dashboard, or any other systems or networks connected to such Services and/or Dashboard by hacking, password “mining,” or any other illegitimate means.
- Utilize any Robot Data, Content, Derived Data, or Personal Information provided as part of the Services and/or displayed on the Dashboard for any purpose other than the analysis of business performance as contemplated by the Service Agreement.
Intellectual Property Rights and Data Ownership
A. No Transfer of Rights
As between ShelfOptix, Client and each User, ShelfOptix owns all right, title, and interest, including all Intellectual Property Rights, in and to the Services and Dashboard, including all Content, Documentation, and Deliverables therein and therefrom. Except as specified in a SOW, the Service Agreements do not convey to Client any right, title, or interest in or to the Services, Dashboard, Content, Documentation, or Deliverables and all rights not expressly granted by ShelfOptix to Client are reserved by ShelfOptix and its licensors. ShelfOptix owns and shall be entitled to use, without restriction, any general knowledge, skills, experience, ideas, concepts, know-how, formats, templates, methodologies, and other techniques that are acquired or used in the course of the provision of the Services under the Service Agreements, provided such techniques do not incorporate Client’s Confidential Information.
B. Ownership of and License to Client Data
In receiving the Services and accessing and using the Dashboard, Client and its Users may provide, submit, input, or otherwise make available to ShelfOptix Client Data. As between ShelfOptix, Client and each User, Client owns all right, title, and interest, including all Intellectual Property Rights, in and to the Client Data. Client and each User grants to ShelfOptix a worldwide, perpetual, irrevocable, fully sub-licensable, fully transferable, and royalty-free license to: (a) access, use, download, store, host, and display the Client Data on and through the Services, Deliverables and Dashboard for its internal use, review, and analysis, including as necessary to comply with its obligations under the Service Agreements; (b) disclose such data to relevant third parties as ShelfOptix deems necessary, in its sole discretion, to comply with its obligations under the Service Agreements; and (c) aggregate the Client Data, Derived Data, Content, and Robot Data with data from other sources for the purpose of conducting comparative analysis, statistical forecasts, behavioral studies, market analysis, product analyses, ensuring quality of performance, research, training and other business or commercial purposes (“Aggregated Data”), provided that ShelfOptix takes commercially reasonable steps to ensure that such Aggregated Data: (i) does not contain any discrete identifiable piece of Personal Information; (ii) is not attributed to Client; and (iii) is not used to derive information about any particular person, including Personal Information. Any such Aggregated Data shall not be considered Confidential Information of Client for purposes of the Service Agreements.
C. Developed Deliverables
Except as otherwise explicitly agreed in a Service Agreement, all Deliverables (including any modifications, enhancements, or derivative works of Intellectual Property Rights of ShelfOptix specifically developed for Client) created or developed during the performance of the Services under the Service Agreements, and all Intellectual Property Rights therein, shall be owned by ShelfOptix. To the extent that Client acquires (whether by operation of law, contract, assignment or otherwise) any rights (including Intellectual Property Rights) in or to the Deliverables, Client unconditionally and irrevocably assigns all such right, title, and interest in and to all such Deliverables to ShelfOptix and shall undertake all activities required by ShelfOptix in order to formalize and perfect such assignment except that, if such assignment is held to be invalid or unenforceable, Client hereby grants to ShelfOptix a perpetual, irrevocable, exclusive, transferable, royalty-free license to use such Deliverables for any and all purposes, without restriction.
D. Proprietary Rights Notices
Neither Client nor any User will delete, alter, cover, or distort any copyright, trademark, or other proprietary rights notice on or in the Services, Deliverables, and/or Dashboard and will ensure, to the extent Client or such User is expressly permitted to make copies of such Services, Deliverables, and/or Dashboard under the Service Agreements, that any such notices are reproduced on any such copies. Neither Client nor any User will use the trademarks, service marks, trade name, domain name, or other source identifiers of ShelfOptix without the express written consent of ShelfOptix.
E. Reservation of Rights
Nothing in the Service Agreements grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Deliverables, Dashboard, and/or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, Deliverables, Dashboard, and/or Third-Party Materials are and will remain with ShelfOptix and the respective rights holders in the Third-Party Materials.
F. Use of Data
In the absence of conflicting terms in a Service Agreement, the following principles of use shall apply:
- Robot Data and Derived Data: You acknowledge that ShelfOptix retains broad rights to use, reproduce, and exploit the Robot Data captured by its robots. Furthermore, ShelfOptix exclusively owns all right, title, and interest in and to Derived Data and Aggregated Data generated in connection with the Services. ShelfOptix reserves the right to monetize, sell, license, and disclose such anonymized and aggregated insights to third parties for any business purpose, free of any obligation to the User or Client. Robot Data may include incidental capture of natural Persons within retail environments. Such incidental capture does not confer any rights on any natural Person or Client.
- Data Retention and Archival: Notwithstanding anything to the contrary regarding Client Data ownership, you acknowledge and agree that ShelfOptix may retain copies of Client Data following the termination of access or the applicable Service Agreements solely for archival, disaster recovery, or regulatory compliance purposes, subject to the confidentiality obligations set forth herein.
G. Third-Party Components
The Services, Dashboard, and/or Deliverables may include or incorporate Third-Party Materials. Any licenses for such Third-Party Materials will be governed by their respective terms, which ShelfOptix will make available to Client as reasonably requested. ShelfOptix will endeavor to secure and administer for Client all necessary licenses or sublicenses for such Third-Party Materials to be accessed or used by Client as part of the Services, Dashboard, and/or Deliverables.
H. Feedback
Client and each User may provide feedback to ShelfOptix in connection with the Services, Dashboard, and/or Deliverables, including without limitation, through usability, bug reports, and test results (collectively, “Feedback”). All right, title, and interest, including all Intellectual Property Rights, in and to such Feedback are the exclusive property of ShelfOptix and shall automatically vest with ShelfOptix upon creation. To the extent ShelfOptix’s rights in such Feedback do not vest automatically, Client and each User hereby unconditionally and irrevocably assigns all right, title, and interest in and to such Feedback except that, if such assignment is held to be invalid or unenforceable, Client and each User hereby grants to ShelfOptix a perpetual, irrevocable, exclusive, transferable, royalty-free license to use such Feedback for any and all purposes, without restriction.
Trademarks
A. ShelfOptix Trademarks
You acknowledge that all trademarks, service marks, logos, trade names and any other Intellectual Property Rights used on the Dashboard and/or Deliverables (including “ShelfOptix,” “BrainOS,” and associated logos) are proprietary to ShelfOptix or its licensors. You are prohibited from using any ShelfOptix Intellectual Property Rights and/or Third Party Materials without our prior written consent. Specifically, you agree not to: (i) use any ShelfOptix Intellectual Property Rights and/or Third Party Materials in a manner that implies an affiliation, sponsorship, or endorsement; (ii) register any domain name containing ShelfOptix Intellectual Property Rights and/or Third Party Materials; or (iii) use ShelfOptix Intellectual Property Rights and/or Third Party Materials as keywords or meta tags in digital advertising.
B. Client Trademarks
If Client trademarks or other Intellectual Property Rights are displayed within the Deliverables and/or Dashboard, this display is solely for the purpose of identifying the Client and its data. Client retains all ownership rights in such Intellectual Property Rights of Client. To the extent the Service Agreements do not already grant such rights, Client hereby grants ShelfOptix a limited, non-exclusive, royalty-free license to use Client’s name and other Intellectual Property Rights solely as required to provide the Services and/or Deliverables.
Confidentiality
You acknowledge that the Services, Dashboard and/or Deliverables contain Confidential Information of ShelfOptix, including but not limited to the layout, functionality, specific analytics methodologies, pricing, bids, proposals, and the software architecture of the portal. You agree to hold such Confidential Information in strict confidence and not to disclose it to any third party (including other unauthorized employees of the Client) or use it for any purpose other than the permitted use of the Services, Dashboard, and/or Deliverables. This obligation of confidentiality survives the termination of the Service Agreements.
Privacy Rights and Data Subject Requests
Rights regarding the access, correction, and deletion of Personal Data (account information) are governed by the ShelfOptix Privacy Policy located at /privacy-policy.htm (as amended, restated, and modified from time to time, the “Privacy Policy”), which is incorporated by reference into these Terms. ShelfOptix’s role in processing Client Data is defined in the Service Agreements and Privacy Policy. All requests related to data access, correction, or deletion must be submitted as outlined in the Privacy Policy.
Disclaimer of Warranties
A. “As Is” and “As Available” Basis
B. No Guarantee of Accuracy or Results
Limitation of Liability
A. Exclusion of Consequential Damages
B. Cap on Monetary Liability
Indemnification
You agree to indemnify, defend, and hold harmless ShelfOptix, its Affiliates, and their respective officers, directors, employees, contractors, agents, licensors, and suppliers from and against any and all claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to: (i) your violation of these Terms or the applicable Service Agreements; (ii) your access to or use of the Services, Dashboard, and Deliverables, including any use of the Robot Data or Derived Data other than as expressly authorized in these Terms; (iii) your violation of any third-party right, including without limitation any Intellectual Property Right, publicity, confidentiality, property, or privacy right; or (iv) your violation of any applicable Laws. ShelfOptix reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to cooperate with ShelfOptix in asserting any available defenses.
Dispute Resolution; Binding Arbitration; Class Action Waiver
A. Mandatory Binding Arbitration
B. Arbitration Rules and Venue
The arbitration will be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. The arbitration hearing will be held in Dallas, Texas. The arbitrator’s decision will be final and binding.
C. Class Action Waiver
D. Exception for Intellectual Property
Notwithstanding the foregoing, ShelfOptix reserves the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of its intellectual property rights.
Suspension and Termination
A. Right to Terminate
Subject to any notice and cure periods expressly set forth in the Service Agreements regarding termination of the Client relationship, ShelfOptix reserves the right, in its sole discretion and without prior notice, to suspend or terminate your access to the Dashboard and your account if: (i) ShelfOptix reasonably believes you have violated these Terms; (ii) ShelfOptix reasonably believes the Client has violated the Service Agreements; (iii) requested by law enforcement or other government agencies; (iv) the contractual relationship between ShelfOptix and the Client is terminated or expires; (v) ShelfOptix discontinues or materially modifies the Dashboard; or (vi) unexpected technical or security issues or problems arise. ShelfOptix may also disable or terminate User access at the direction of the Client.
B. Effect of Termination
Upon termination of your access: (i) all licenses and rights granted to you under these Terms will immediately cease; (ii) you must immediately cease all use of the Dashboard; and (iii) the provisions of these Terms regarding Intellectual Property, Confidentiality, Disclaimers, Limitation of Liability, and Indemnification shall survive such termination.
Modification of Terms
A. Right to Modify
ShelfOptix reserves the right, at its sole and absolute discretion, to modify, amend, add, or remove portions of these Terms at any time. You should check these Terms periodically for changes.
B. Notice of Material Changes
If we make any material changes to these Terms, we will use commercially reasonable efforts to provide notice to you, which may include: (i) sending an email to the address associated with your account; (ii) posting a notice on the Dashboard login page; or (iii) updating the “Last Updated” date at the top of these Terms. Your continued access to or use of the Dashboard following the posting of any changes will mean that you accept and agree to the changes. If you do not agree to the modified Terms, your sole recourse is to stop using the Dashboard.
General Provisions
A. Governing Law and Dispute Resolution
These Terms and any dispute or claim arising out of or in connection with them shall be governed by and construed in accordance with the internal laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to these Terms or the other Service Agreements shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, in each case, located in Dallas County, Texas, and you irrevocably submit to the exclusive jurisdiction of such courts.
B. Severability and Waiver
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect. No waiver by ShelfOptix of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of ShelfOptix to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
C. Entire Agreement
These Terms, together with the Privacy Policy and any applicable Service Agreement (such as the MSA or SOW), constitute the sole and entire agreement between you and ShelfOptix regarding the Services, Deliverables and Dashboard and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the same.
D. Electronic Communications and Notice
When you use the Dashboard or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Dashboard. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Contact Information
If you have any questions regarding these Terms, Services, Deliverables and/or Dashboard, please contact us at: