This Subscription Agreement (this “Agreement”) is entered into as of the Effective Date set forth below between Senseware, Inc. (“Senseware”) and the customer listed on any Order Form (“Customer”) mutually executed by the parties. Each of Customer and Senseware may be referred to individually as a “Party” and collectively as the “Parties.” The Parties may from time to time enter into additional Order Forms, which will be part of this Agreement.
These Terms and Conditions govern Senseware’s provision, and Customer’s use, of certain Hardware and Software furnished by Senseware to Customer as well as access to certain services provided by Senseware as described on any Order Form(s).
1. ACCESS AND USE
1.1 Orders. The Parties shall negotiate and sign each Order Form separately. Each Order Form shall set out a description of the applicable Senseware Services to be provided by Senseware, any Hardware being provided with the Senseware Services, the costs associated with such Senseware Services and Hardware and the period of time Customer will have access to the particular Senseware Service (the “Access Term”).
1.2 Provision of Access. Subject to the terms and conditions contained in this Agreement, Senseware hereby grants to Customer and its Authorized Users a non-exclusive, non-transferable right to access the features and functions of the applicable Senseware Service set forth in the applicable Order Form during the Access Term for the number of Authorized Users and the number of Streams set forth on the Order Form up to the Service Limits. Senseware shall provide to Customer the necessary passwords, security protocols and policies and network links or connections and access protocols to allow Customer and its Authorized Users to access the Senseware Services. Customer and any Authorized User may only use the Senseware Services in accordance with the access protocols. The parties acknowledge and agree that a given Order Form may indicate that an Authorized User may be a third party and in such a case, Senseware will provide such authorized third party access to the Customer Data for purposes of providing such services.
1.3 Usage Restrictions. Customer shall not: (a) use any Senseware Service to operate, monitor or control (i) any safety related or life critical system or in any safety related or life support application, (ii) any inherently dangerous application, or (iii) any critical infrastructure system; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Senseware Services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (c) allow third parties other than Authorized Users to gain access to the Senseware Services; (d) not modify or make any alterations or modifications to Senseware Hardware; (e) not remove any proprietary notices or markings on Senseware Hardware; or (f) not reverse-engineer or disassemble Senseware Hardware or allow third parties access to the Senseware Hardware. Customer will ensure that its use of the Senseware Service complies with all applicable laws, statutes, regulations or rules.
1.4 Retained Rights; Ownership.
(a) Ownership and Use of Customer Data. Customer retains all right, title and interest in and to the Customer Data, and Senseware acknowledges that it neither owns nor acquires any additional rights in and to the Customer Data not expressly granted by this Agreement. Senseware further acknowledges that Customer retains the right to use the Customer Data for any purpose in Customer’s sole discretion. Subject to the foregoing, Customer hereby grants to Senseware a non-exclusive, non-transferable right and license to use the Customer Data during the Term for the limited purposes of performing Senseware’s obligations under this Agreement and to use the Customer Data during and after the Term to create anonymous aggregated statistics from such data and associated insights from such data (as aggregated with other customers’ data in an anonymous and aggregated basis).
(b) Ownership of Senseware Services. Subject to the rights granted in this Agreement, Senseware retains all right, title and interest in and to the Senseware Service, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement or any licenses to the software used to provide the Senseware Services. Customer further acknowledges that Senseware retains the right to use the foregoing for any purpose in Senseware’s sole discretion.
2.1 License Grant. Subject to the terms and conditions of this Agreement, Senseware grants to Customer a limited non-exclusive, non-transferable, non-sublicenseable license during the Subscription Period to use the Software (including firmware and software, in object code format) that is installed on the Hardware located at the Site, solely as part of Senseware Hardware (and not on a standalone basis), and subject to additional restrictions and limitations (if any) set forth in the Order Form.
2.2 License Restrictions. Customer acknowledges that the Software and its structure, organization, and source code constitute valuable trade secrets of Senseware and its licensors. Customer agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) merge the Software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer or allow use of the Software by, on behalf of or for the benefit of any third party; (d) without limiting the foregoing, use the Software in any service bureau, time-sharing or hosting arrangement; (e) reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (f) otherwise use or copy the Software except as expressly allowed under Section 2.2.
2.3 Installation and Acceptance. Subject to the express warranties set forth in Section 6.1, the Software and Hardware will be deemed irrevocably accepted by Customer upon the completion of the installation.
3.1 Support Services. During the Subscription Period, Senseware will provide to Customer five (5) hours of telephone support during Senseware’s regular business hours to assist Customer with identifying and resolving problems and errors during installation of the Senseware Hardware and Senseware Services and will use commercially reasonable efforts to correct any reproducible errors that cause the Senseware Hardware or Senseware Services, when used as permitted under this Agreement and in accordance with provided documentation, to operate at material variance from the specifications in the documentation, provided that Customer reasonably cooperates with Senseware’s efforts to diagnose, reproduce and correct such errors, including providing Senseware with remote access to the Senseware Hardware (“Technical Assistance”). Customer acknowledges and agrees that Senseware may access the Senseware Hardware remotely solely for the purposes of configuring the operation of the Senseware Hardware, monitoring the performance of Senseware Hardware, providing support to the Customer and verifying Customer’s compliance with the license restrictions and limitations hereunder.
4. CUSTOMER RESPONSIBILITIES.
4.1 Authorized Users Access to Services. Customer may permit any Authorized Users to access and use the features and functions of the Senseware Service as contemplated by this Agreement. Customer will be responsible for all actions or omissions of its Authorized Users. Authorized User IDs cannot be shared or used by more than one Authorized User at a time. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Senseware Service and shall notify Senseware promptly of any such unauthorized use known to Customer. Customer acknowledges and agrees that it may need certain networking capabilities, bandwidth and hardware to use the Senseware Services. Customer is solely responsible for all hardware (e.g., Gateways, PLCs, etc.), software, Internet connectivity and bandwidth required to reach the Senseware systems to gain access to the Senseware Services. Third Party Hardware (e.g., 3G router) may be included as part of this Agreement for Internet connectivity by Senseware Hardware.
4.2 Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Data and shall be responsible for the security of all passwords and other access protocols required in order to access the Senseware Services. Senseware will use industry standard means to protect the Customer Data from unauthorized access. Customer shall have the ability to export Customer Data out of the Senseware Services. Customer covenants and agrees not to share any personal or restricted data with Senseware or have any such data access the Senseware Services. Customer shall have the sole and absolute obligation to exclude personal and restricted data. Customer acknowledges and agrees that Senseware will have no obligation to archive back-up Customer Data, nor will Senseware have any liability for any loss or corruption of Customer Data, nor will Senseware have any obligation under this Agreement to retain any Customer Data, unless otherwise specifically set forth in an Order Form, after the expiration or termination of the Access Term.
5. CONFIDENTIALITY. During the Term, each Party will have access to certain Confidential Information of the other. Confidential Information will mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party, terms of this Agreement, and terms on any Order Forms, that have been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. Without limiting the foregoing, for purposes of this Agreement, Senseware Hardware will be deemed Confidential Information of Senseware. Each Party agrees: (a) not to disclose the Confidential Information of the other to anyone except its employees, contractors and advisors (“Representatives”) on a strict need to know basis and subject to a written duty of confidence; (b) to use the Confidential Information strictly for the performance or receipt of this Agreement; and (c) to use commercially reasonable efforts to protect the confidentiality of the other Party’s Confidential Information. This Section will not apply to Confidential Information that: (i) is or becomes publicly available through no fault of the recipient; (ii) is already in the recipient’s possession at the time of its disclosure without any duty of confidence; or (iii) is independently developed by the recipient without use of the disclosing Party’s Confidential Information. Each Party may disclose Confidential Information to the extent required: (1) by securities laws; (2) to comply with a court or governmental order, or to comply with applicable law; or (3) to establish or preserve a party’s rights under this Agreement. Each Party will be responsible for the acts and omissions of its Representatives related to any breach of this Section.
6. WARRANTIES; DISCLAIMER
6.1 Limited Hardware Warranty. Senseware warrants that the Hardware will substantially conform to the specifications in the applicable documentation and will be free from material defects in materials and workmanship under normal use for a period of one (1) year from the date of the original purpose (“Warranty Period”). Senseware’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for breach of this warranty will be, at Senseware’s option, to: (a) repair the defective Hardware to correct the defect; or (b) replace any such Hardware at no additional charge. Senseware reserves the right to use refurbished parts or Hardware for any replacement. This Limited Hardware Warranty does not apply (i) if the Senseware Hardware has been subject to faulty and improper installation, maintenance, service, operational adjustments, repair, alteration and/or modification in any way that is not (a) covered in the documentation for the product or (b) carried out with Senseware’s prior consent in writing, (ii) to damages caused by failure to follow the instructions covered in the documentation for the Senseware Hardware or other specific instructions from Senseware, (iii) to cosmetic damages, (iv) if the product has been tampered with, (v) if the product is damaged by acts of God, misuse, abuse, negligence, accident, normal wear and tear and deterioration, improper environmental conditions (including, but not limited to, electrical surges, water damage and heat exposure) or lack of responsible care, (vi) if the product has had the model or serial number altered, defaced or removed, (vii) to consumables (such as batteries) (viii) to any non-Senseware hardware product or any software (irrespective of whether it has been packaged and/or sold with Senseware Hardware) and/or Senseware products purchased from an unauthorized distributor/reseller, (ix) to damage that occurs in shipment or from improper storage or transportation, (x) to damages by any other cause not related to defective design, workmanship and/or materials. If Senseware Hardware is to be used outdoors or in dusty, humid, or other hostile environments, it must be suitably protected. Failure to comply with any of the aforementioned requirements will invalidate this Limited Hardware Warranty.
6.2 Services Warranty. Senseware represents and warrants that it will provide the Senseware Service and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Senseware further warrants, for the benefit of Customer only, that the Senseware Service will conform in all material respects to the standard user documentation for such Senseware Service provided to Customer by Senseware for a period of thirty (30) days after Senseware first makes the Senseware Service available to Customer, provided that such warranty will not apply to failures to conform to the documentation to the extent such failures arise, in whole or in part, from (i) any use of the Senseware Service other than in accordance with the documentation, or (ii) any combination of the Senseware Service with software, hardware or other technology not provided by Senseware under this Agreement. Where Third Party Hardware is included as part of this Agreement for Internet connectivity by Senseware Hardware, the service warranty will be defined by the third party provider of such hardware.
6.3 Limitations. The warranties in Sections 6.1 and 6.2 above shall not apply to: (a) use of Senseware Hardware or any component thereof other than according to the terms of the Agreement or related documentation; (b) modification, maintenance, or repair of the Hardware or Software by Customer or any third party, except as expressly permitted in writing by Senseware; (c) any combination or integration of the Software with hardware, software, data, and/or technology not provided by Senseware, regardless of whether such combination or integration is permitted under the terms of the Agreement; (d) any Open Source Software and/or third party components included in or with the Software (“Third Party Software”); or (e) any damage caused by abuse, abnormal physical or electrical stress on, or improper use of Senseware Hardware.
6.4 Warranty Disclaimer. Senseware does not warrant that the Customer’s use of Senseware Hardware will be error-free or uninterrupted. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SENSEWARE HARDWARE, HARDWARE AND SOFTWARE ARE PROVIDED “AS IS,” AND SENSEWARE MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE SENSEWARE HARDWARE (IN WHOLE OR IN PART) OR ANY OTHER SOFTWARE OR SERVICES PROVIDED TO CUSTOMER BY SENSEWARE. SENSEWARE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. SENSEWARE HARDWARE AND ANY OTHER SOFTWARE, HARDWARE OR SERVICE PROVIDED TO CUSTOMER BY SENSEWARE ARE NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
7.1 Indemnification by Senseware. Senseware will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that Senseware Hardware infringes the United States intellectual property rights of such third party, and Senseware will pay those costs and damages awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If Senseware Hardware becomes, or in Senseware’s opinion is likely to become, the subject of an infringement claim, Senseware may, at its option and expense: (a) procure for Customer the right to continue use of Senseware Hardware; (b) modify Senseware Hardware so that it becomes non-infringing; or (c) refund to Customer any fees prepaid by Customer under the Order Form for Senseware Hardware, prorated for the amount of time remaining in the applicable term, and terminate the applicable Order Form by written notice to Customer. Notwithstanding the foregoing, Senseware will have no obligation with respect to any infringement claim to the extent based upon (i) any use of Senseware Hardware not in accordance with this Agreement or for purposes beyond the scope set forth in the applicable documentation, (ii) any use of any release of Senseware Hardware other than the most current release made available to Customer, (iii) any modification of Senseware Hardware by any person other than Senseware or its authorized agents or subcontractors, (iv) any combination or integration of Senseware Hardware with hardware, software, data, and/or technology not provided by Senseware, or (v) any Open Source Software and/or Third Party Software (collectively, the “Excluded Claims”). This Section 7.1 states Senseware’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.
7.2 Procedure. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; (b) the indemnifying Party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified Party will reasonably cooperate with the indemnifying Party, at the indemnifying Party’s expense, to facilitate the settlement or defense of any claim or suit.
8. LIMITATION LIABILITY
8.1 Disclaimer. EXCEPT FOR A BREACH OF SECTION 7, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOSS OF USE, DATA, PROFITS, OR GOODWILL, ARISING FROM OR RELATING TO THIS AGREEMENT, SENSEWARE HARDWARE OR ANY OTHER HARDWARE, SOFTWARE, SERVICES OR CONTENT PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EVEN IF SENSEWARE HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. SENSEWARE WILL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCT OR SERVICES.
8.2 Cap. THE TOTAL CUMULATIVE LIABILITY OF SENSEWARE ARISING FROM OR RELATING TO THIS AGREEMENT AND THE SENSEWARE HARDWARE PRODUCT, AND ANY OTHER SERVICES PROVIDED HEREUNDER, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO SENSEWARE BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM AT ISSUE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
9. TERM AND TERMINATION
9.1 Term. This Agreement will continue to apply as long as the Subscription Period under an Order Form remains in effect, unless earlier terminated by either Customer or Senseware as set forth herein (the “Term”). The Subscription Period set forth in any Order Form will automatically renew for successive one (1) year periods at the then-current one year rate for the data stream fees, unless either provides notice to the other of its intent not to renew the Agreement no less than ninety (90) days prior to the end of the then applicable Term.
9.2 Termination. Either party may terminate this Agreement if the other is in breach of any material obligation under this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof. Senseware may terminate this Agreement, effective immediately upon written notice to Customer, if Customer ceases business operations, assigns its assets for the benefit of creditors, becomes bankrupt, or otherwise seeks to dispose of all or substantially all of its assets.
9.3 Effects of Termination. Upon termination or expiration of this Agreement: (a) any outstanding amounts owed by Customer to Senseware will become immediately due and payable; (b) all license rights granted under Section 2.1 of this Agreement will immediately cease to exist; and (c) Customer will promptly secure and retain physical possession of all Senseware Hardware in accordance with the License Grant of Section 2.1 and Usage Restrictions of Section 1.3, discontinue all use of the Software, erase all copies of the Software from Customer’s computers, and return or destroy all copies of the Software and documentation on tangible media in Customer’s possession or control and certify in writing to Senseware that it has fully complied with these requirements.
9.4 Suspension of Service. If Customer fails to pay undisputed amounts in accordance with the terms and conditions hereof, the Order Form or any other agreement related, directly or indirectly, to the provision of the Senseware Service to Customer or such amounts are not timely paid on behalf of Customer, Senseware shall have the right, in addition to any of its other rights or remedies, to suspend the Service, without liability to Customer until such amounts are paid in full.
9.5 Survival. Sections 1.3 (Usage Restrictions), 1.4 (Retained Rights; Ownership), 2.2 (License Restrictions), 5 (Confidentiality), 6.4 (Warranty Disclaimer), 7 (Indemnification), 8 (Limitation of Liability), 9.3 (Effects of Termination), 10.1 (Compliance with Export Laws), and 10.5 (Severability) will survive expiration or termination of this Agreement for any reason.
10.1 Compliance with Export Laws. Customer understands and acknowledges that Senseware’s products and services are subject to U.S. export control laws and regulations. Customer shall comply with these laws and regulations and agrees that it shall not, without any required prior U.S. government authorization, export, re-export, or transfer Senseware’s products or services, either directly or indirectly, in violation of such laws and regulations, including but not limited to export, re-export, or transfer to any country subject to an embargo by the U.S. Government, including, but not limited to, Cuba, Iran, North Korea, Sudan, Syria, and the Crimea Region, or to any person included on a restricted or prohibited party list maintained by the U.S. Government.
10.2 Assignments. Neither Party may assign, delegate, or otherwise transfer (by operation of law or otherwise) this Agreement or any of its rights or obligations to a third party without the other Party’s written consent, except that either Party may assign or transfer this Agreement without such consent as a consequence of a merger, acquisition, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains. Any assignment or transfer in violation of the foregoing will be null and void. Subject to all of the terms and conditions hereof, this Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns
10.3 Governing Law and Venue. This Agreement will be governed by the laws of the Commonwealth of Virginia, without giving effect to any conflict of laws principles that would cause the law of another jurisdiction to apply. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each Party agrees to negotiate in good faith to resolve any dispute, claim or controversy arising out of or related to this Agreement. In the event the Parties are unable to resolve the dispute within fifteen (15) days following the commencement of negotiations, each Party shall escalate the dispute through the appropriate levels of management, up to and including the level of vice president, until the resolution of the issue is achieved or the respective vice presidents cannot agree to a resolution of the dispute. Unless otherwise agreed to by both Parties, in no event shall the escalation process exceed thirty (30) days. Except for disputes, controversies or claims regarding intellectual property, any dispute, controversy or claim, whether based on contract, tort, or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out of or related to this Agreement which remains unresolved following the negotiations and escalation procedures set forth herein, shall be resolved by binding arbitration pursuant to this Section and the then current rules and supervision of the American Arbitration Association (“AAA”). Issues of arbitrability shall be determined in accordance with the federal substantive and procedural laws relating to arbitration. A single arbitrator (the “Arbitrator”), who is licensed to practice law and is knowledgeable in the subject matter of this Agreement, shall be appointed by mutual agreement of both Parties, however, in the event that the Parties fail to agree on an Arbitrator within ten (10) days from the date of a request for arbitration, then the Arbitrator will be appointed by the AAA. The Arbitrator shall issue a written report to the Parties which details the basis of any arbitration award. The Arbitrator’s decision and award shall be final and binding and may be entered in any court having jurisdiction thereof. The Arbitrator shall not have the power to award punitive or exemplary damages. Either Party may make an application to the Arbitrator seeking interim injunctive relief to be in effect until such time as the arbitration award is rendered or the dispute is otherwise resolved. Each Party shall bear its own attorneys’ fees associated with the arbitration and other costs and expenses of the arbitration shall be borne equally by the Parties. If court proceedings to stay litigation or compel arbitration are necessary, the Party who unsuccessfully opposes such proceedings shall pay all associated costs, expenses and attorney’s fees which are reasonably incurred by the other Party. Any arbitration or litigation shall be held in Rockville, MD. This Section shall survive any expiration or termination of this Agreement and shall continue to be enforceable in the event of the bankruptcy of a Party. Nothing set forth herein shall be deemed to prevent either Party from seeking injunctive relief prior to the appointment of an Arbitrator.
10.4 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.5 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
10.6 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
10.7 Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Any additional, different, conflicting or inconsistent terms on any purchase order or any other document submitted by Customer are hereby expressly rejected.
10.8 Publicity. Senseware may refer to Customer as a Senseware customer on Senseware’s website and in sales presentations, and may use Customer’s name and logo for such purposes. Neither Party will issue a press release announcing its relationship with the other Party without the other Party’s prior approval, not to be unreasonably withheld or delayed.