Rhombus Systems, Inc.
Product Evaluation Agreement
(Cameras, Sensors & Access Control)
Updated October 2024
This Product Evaluation Agreement ("Product Evaluation Agreement") is entered into by and between Rhombus Systems, Inc. ("Rhombus") and the customer requesting the opportunity to participate in a trial of Rhombus's Products and Services (“Customer”). The terms and conditions of this Product Evaluation Agreement hereby incorporate and are a supplement to the End User License Agreement (“EULA”). In the event of a conflict between the terms of this Product Evaluation Agreement and the EULA, the Product Evaluation Agreement shall take precedence and apply.
CUSTOMER IS UNDER NO OBLIGATION TO PURCHASE THE EVALUATION PRODUCTS USED IN A TRIAL, BUT CUSTOMER WILL BE INVOICED FOR PRODUCTS NOT PURCHASED OR RETURNED FOLLOWING THE EXPIRATION OF THE TRIAL PERIOD.
1. Definitions
1.1 “Evaluation Period” refers to the Product evaluation period that is defined in the Order, which commences at the agreed upon evaluation start date and time, and ends after 21 days thereafter. If the Customer claims trial license keys and activates Product licenses before the start date and time set forth in the Order, the Evaluation Period will end 21 days after the licenses were activated. However, if no Evaluation Period is defined in the Order, the Evaluation Period for purposes of this Product Evaluation Agreement shall begin on the date the Product is shipped by Rhombus and end thirty (30) days thereafter.
1.2 “Order” refers to the certain quote that is generated by Rhombus, approved by Customer or the authorized Channel Partner, and accepted by Rhombus, which incorporates the terms of this Product Evaluation Agreement.
1.3 “Products” refers to those products and services identified in the corresponding Order that are being provided to Customer for evaluation purposes; for purposes of this Product Evaluation Agreement “Products” shall not include Rhombus’s Alarm Monitoring Service, which would be licensed under a separate agreement.
1.4 “Trial Period” refers to the Evaluation Period, plus a period thereafter of up to fourteen (14) days for Customer to return or procure the Products.
2. Title to Products
Products are provided to Customer solely for the purpose of Customer’s internal evaluation and trial use. Rhombus retains all right, title and interest in and to the physical Products unless and until the Products are procured by Customer.
3. License Grant
Subject to the terms and conditions hereof, Rhombus grants to Customer, for the Evaluation Period only, a non-exclusive, non-transferable, revocable, limited license to use the Products solely for the purpose of Customer’s internal evaluation of the Products and not for general commercial use.
4. Termination
The licenses granted hereunder terminate on expiration of the Evaluation Period. Additionally, either party may terminate this Product Evaluation Agreement upon written notice to the other party at any time. This Product Evaluation Agreement shall otherwise terminate at the end of the Trial Period. Notwithstanding the foregoing, Section 2, Sections 4 through 8, and Sections 10 through 16, shall survive termination of this Product Evaluation Agreement.
5. Effect of Termination
At the end of the Evaluation Period, Products shall be surrendered or procured, as provided hereunder.
5.1 Surrender. At the end of the Evaluation Period, Products may be returned to Rhombus, at Rhombus’ expense, in the original packaging and in the same condition as when received, reasonable wear and tear excepted. Your Rhombus Representative will initiate the return of your trial products via an email form to confirm your shipping information. We will then issue you Return Labels to send products back. Any Products surrendered must be received by Rhombus before the end of the Trial Period.
5.2 Procure. If during the Trial Period Customer elects to purchase the Products, a purchase order may be placed with a Rhombus authorized channel partner. The purchase of the Products pursuant to such purchase order shall be subject to Rhombus’s standard terms and conditions of use (in addition to any such partner’s terms), and not the terms of this Product Evaluation Agreement. Likewise, if Products are not properly surrendered (e.g., not timely returned, damaged, returned without packaging, etc.), Customer agrees to purchase such Products at Rhombus’ then-current list price, subject to any markup and/or additional charges that may be charged by a Rhombus authorized channel partner, and Customer may be invoiced at that time. The purchase date of any procured Products, for purposes of returns and Product warranty, shall be the date that the Evaluation Period commenced (the date the Product originally shipped from Rhombus).
6. Proprietary Rights; Confidentiality; Restrictions
Customer acknowledges that the Products contain and/or embody confidential information and trade secrets of Rhombus and its licensors. Customer will not: (a) distribute, sell, sublicense or otherwise transfer or make available the Products or any portion thereof to any third party; (b) remove from view any copyright legend, trademark or confidentiality notice appearing on the Products; or (c) modify, adapt, translate, reverse engineer, decompile or derive the source code for the Products, or authorize a third party to do any of the foregoing. Customer will not use the Products or any documentation provided therewith for any purpose other than Customer’s internal evaluation of the Products and/or the provision of Feedback (as defined in Section 7) to Rhombus, and will not disclose (i) Feedback (including the results of any performance or functional evaluation or tests of the Products by Customer) to any third party (other than the Rhombus authorized reseller through whom Customer ordered the Products) without the prior written approval of Rhombus, or (ii) any related technical information identified as confidential by Rhombus (each, deemed “Confidential Information” of Rhombus). Customer will use no less than all reasonable efforts to protect such Confidential Information from unauthorized use or disclosure. Customer may disclose Confidential Information only to those of its employees who have a bona fide need to know such information for Customer’s evaluation of the Products and who have first executed a written agreement that contains use and nondisclosure restrictions at least as protective as those set forth herein. Customer will immediately report any violation of this provision to Rhombus and shall employ all reasonable means to mitigate any damages or losses that Rhombus may incur as a result of any such violation. Customer’s rights in the Products will be limited to those expressly granted in Sections 2 and 3. Rhombus and its licensors reserve all rights and licenses in and to the Products not expressly granted to Customer hereunder.
7. Feedback
Customer will use and test the Products and provide reasonable feedback to Rhombus concerning the features and functionality, and Customer’s experience with use of the Products (“Feedback”). If Customer provides Feedback to Rhombus, either directly or through a Rhombus authorized reseller, all such Feedback will be the sole and exclusive property of Rhombus. Customer hereby irrevocably transfers and assigns to Rhombus and agrees to irrevocably assign and transfer to Rhombus all of Customer's right, title, and interest in and to all Feedback including all intellectual property rights therein (collectively, “Intellectual Property Rights”). Customer will not earn or acquire any rights or licenses in the Products or in any Rhombus Intellectual Property Rights on account of any Feedback or Customer's performance under this Product Evaluation Agreement, even if Rhombus incorporates any Feedback into the Products.
8. Audit
Rhombus may, at any time during the term of this Product Evaluation Agreement, upon reasonable written notice and during Customer’s normal business hours, audit Customer’s use of the Products at Customer’s premises, as reasonably necessary to confirm that Customer is using the Products in accordance with the terms and conditions of this Product Evaluation Agreement. Rhombus may use a third-party organization reasonably acceptable to Customer to assist Rhombus in conducting such an audit. Customer will cooperate with Rhombus in such audit and will promptly make available to Rhombus all information and materials reasonably required by Rhombus to conduct such an audit.
9. Delivery and Installation
Rhombus will provide the Products at Rhombus’ expense. Customer will be responsible for installing, or working through a Rhombus authorized reseller to install, the Products. Rhombus may provide reasonable assistance in connection with such installation and activation.
10. Compliance with Laws
Privacy and other laws applicable in Customer’s jurisdiction may impose certain responsibilities on Customer and Customer’s use of the Products. Customer is not authorized to use the Products if Customer’s use is prohibited by applicable laws. Customer agrees that it is solely Customer’s responsibility, and not the responsibility of Rhombus, to ensure that Customer complies with any applicable laws when Customer uses the Products, including (a) any laws or regulations relating to the recording or sharing of video or audio content, (b) any laws or regulations requiring that notice be given to or that consent be obtained from third parties with respect to Customer’s use of the Products (for example, laws or regulations requiring Customer to display appropriate signage advising others that audio/visual recording is taking place), (c) any laws or regulations requiring Customer to install any hardware so it does not take visual and/or audio recordings beyond the boundary of Customer’s property (including public pavements or roads); and/or (d) if Customer uses its property as a workplace, any laws or regulations governing the monitoring of employees and guests.
11. Consent to Processing, Storage and Access of Customer Information
In the course of Customer’s use of the Products, Rhombus may process or store telephone, audio, electronic, and other forms of transmission or communication or data (“Service Data”). To the fullest extent permitted by applicable law, Customer for itself and on behalf of any other third parties who are present at their premises at any time, hereby consents to Rhombus storing, processing and accessing the contents of all Service Data to the extent required to allow Customer to evaluate the Products and ensure compliance with this Product Evaluation Agreement. Rhombus may share such Service Data with law enforcement, government officials, and/or other third parties if legally required to do so or if Rhombus has a good faith belief that such access, use, preservation or disclosure is reasonably necessary to: (a) comply with applicable law, regulation, legal process or reasonable preservation request, (b) enforce these terms, including investigation of any potential violation thereof, (c) detect, prevent or otherwise address security, fraud, technical, or service related issues, or (d) protect the rights, property or safety of Rhombus, its users, a third party, or the public as required or permitted by law.
12. Consent of Other Parties
If Customer is using the Products at a location where other individuals live, work or are otherwise present or that is owned, operated or managed by a third party (collectively, “Other Parties”), Customer represents to Rhombus that Customer has notified those Other Parties about the operation of the Products and obtained all approvals, permissions, consents and authorizations, if and as required by law or otherwise from such Other Parties.
13. No Warranty
THE PRODUCTS ARE PROVIDED “AS-IS” AND FOR EVALUATION PURPOSES ONLY, WITH NO WARRANTY. RHOMBUS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE IN TRADE.
14. Acknowledgment of Beta Products
If Customer is evaluating Products that are still being developed and/or tested and therefore not generally available for sale (“beta products") Customer acknowledges and agrees that: (a) the Products are not official products or service offerings of Rhombus, and have not been made commercially available or released by Rhombus for general sale to the public; (b) the Products may not operate properly, be in final form or fully functional; (c) the Products may contain errors, design flaws or other problems; (d) it may not be possible to make the Products fully functional; (e) the information obtained using the Products may not be accurate and may not accurately correspond to information extracted from any database or other source; (f) use of the Products may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Rhombus is under no obligation to release a commercial version of the Products; and (h) Rhombus has the right unilaterally to abandon development of the Products, at any time and without any obligation or liability to Customer. Customer acknowledges and agrees that it should not rely on the Products for any reason. Customer is solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Products. Customer will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of Customer's use of the Products.
15. Indemnity
Customer shall indemnify and hold harmless Rhombus, to the fullest extent permitted by law, from and against any and all claims, actions, demands, damages, losses, liabilities, settlements, costs and fees (including attorneys’ fees) arising from or in connection with: (a) Customer’s use of the Products or any Service Data (including any person’s claim regarding privacy rights), (b) Customer’s breach or failure to comply with any term or condition of this Product Evaluation Agreement, and (c) any negligent acts or omissions of Rhombus in connection with the performance or non-performance of its responsibility under this Product Evaluation Agreement.
16. Limitation of Liability
EXCEPT AS OTHERWISE REQUIRED BY LAW, THE LIABILITY OF RHOMBUS AND ITS LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS PRODUCT EVALUATION AGREEMENT OR THE USE OF THE PRODUCTS, OR FOR ANY ERROR OR DEFECT IN THE PRODUCTS, OR FOR THE PROVISION OF TECHNICAL SUPPORT INSTALLATION, TRAINING OR OTHER SERVICES IN CONNECTION THEREWITH, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE GREATER OF $100 OR ANY FEES PAID TO RHOMBUS HEREUNDER. IN NO EVENT WILL RHOMBUS OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS, REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS PRODUCT EVALUATION AGREEMENT REFLECT THE ALLOCATION OF RISK NEGOTIATED AND AGREED TO BY THE PARTIES. THE PARTIES WOULD NOT ENTER INTO THIS PRODUCT EVALUATION AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
17. General
Customer may not assign or otherwise transfer, by operation of law or otherwise, any of its rights under this Product Evaluation Agreement without Rhombus’s prior written consent, and any attempted assignment without such consent will be null and of no effect. This Product Evaluation Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements, communications and understandings with respect to the testing and evaluation of the Products and shall be construed in accordance with the laws of the State of California (excluding its body of law controlling conflicts of law). The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Product Evaluation Agreement will be brought exclusively in the federal or state courts located in the Sacramento, California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. If any provision of this Product Evaluation Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Product Evaluation Agreement will remain in full force and effect. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default. All notices required or permitted under this Product Evaluation Agreement will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or if to Rhombus, by email submitted to legal-notices@rhombus.com, and in each instance will be deemed given upon receipt.