Services Access and Use Agreement
This Services Access and Use Agreement (this “Agreement”) is a binding agreement between Sensonix, Inc. (”Provider”) and the entity identified on the Order Form (incorporated herein by this reference) as the customer of the Services (”Customer”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
PROVIDER PROVIDES ACCESS TO THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON, YOU: (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROVIDER SHALL NOT AND DOES NOT PROVIDE ACCESS TO THE SERVICES TO CUSTOMER AND YOU MUST NOT USE THE SERVICES.
WHEREAS, Provider intends to compile into a proprietary database (the “Database”) certain data recorded via Customer’s use of Provider’s equipment (the “Customer Data”). Provider has also created software and related tools by which to access and manipulate the Customer Data stored in the Database (the “Software”). Collectively, the Database and the Software is referred to in this Agreement as the “Services”; and
WHEREAS, Customer desires to access the Services, and Provider desires to provide Customer access to the Services, subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-sublicenseable, and non-transferable (except in compliance with Section 11(f)) right during the Term to access and use Services solely for Customer’s internal business purposes (the “Permitted Use”). Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of users and amount of storage and usage by the Customer will not exceed the limits set forth in Exhibit A, except as expressly agreed to otherwise in a separate writing by the Parties, referencing this Agreement and subject to any appropriate adjustment of the Fees payable hereunder.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 11(f)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services. “Documentation” means Provider’s user manuals, handbooks, and guides, if any, relating to the Services provided by Provider to Customer either electronically or in hard copy form or available at support.sensonix.net.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Notwithstanding the foregoing use restrictions, Customer is not prohibited from copying, publishing, or otherwise disclosing the Customer Data, any compilation thereof, or the results of its manipulation of the Customer Data with the Services.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Services, Documentation, or any other Provider intellectual property.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may suspend Customer’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider’s intellectual property; (B) Customer’s use of the Services disrupts or poses a security risk to the Provider or to any other customer or vendor of Provider; (C) Customer is using the Services for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Customer is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) Customer fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider’s delivery of written notice thereof. Provider will have no liability for any damage, liabilities, losses (including any loss of Customer Data or other data or profits), or any other consequences that Customer may incur as a result of a suspension of Services.
(f) Aggregated Statistics and Other Analytics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile aggregated statistics and perform other analytics thereon. As between Provider and Customer, all right, title, and interest in aggregated statistics and results of Provider’s analytics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile aggregated statistics and perform such other analytics based on Customer’s data input into the Services. Customer agrees that Provider may make aggregated statistics and other results of Provider’s analytics publicly available and use such to the extent and in any manner permitted under applicable law.
2. Customer Responsibilities.
(a) General. Customer is solely responsible and liable for: (i) all access and use of the Services and Documentation, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, and including all results obtained from, and all conclusions, decisions, and actions or inaction based on, such access or use; (ii) all Customer Data, including its content and use; (iii) all information, instructions and materials provided by or on behalf of Customer in connection with the Services; (iv) all Customer systems with which it accesses the Services, including the security and use of same; and (v) the security and use of Customer’s access credentials, including the security user names, passwords, license or security keys, security tokens, PINs or other security codes, methods, technologies or devices used, alone or in combination, to verify the identity of an individual or Customer Data or Customer system or to access the Services. Without limiting the generality of the foregoing, Customer is solely responsible for all acts and omissions of its users, and any act or omission by a user that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.
(b) Third-Party Products. Provider may from time to time make third-party products available to Customer. For purposes of this Agreement, such third-party products are subject to their own terms and conditions and the applicable flow through provisions referred to in Exhibit A, if any. If Customer does not agree to abide by the applicable terms for any such third-party products, then Customer should not use such third-party products.
3. Service Levels, Modifications, and Support.
(a) Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to provide the Services. Provider does not make any representations or guarantees, however, regarding uptime or availability of the Services.
(b) Modifications. Provider reserves the right to modify, improve, or otherwise change the design or function of the Services without assuming any obligations or liabilities relating thereto or to any product or service previously provided.
(c) Support. This Agreement does not entitle Customer to any support for the Services.
4. Fees and Payment.
(a) Fees. Customer shall pay Provider the fees (”Fees”) set forth in Exhibit A without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Exhibit A. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if Customer fails to pay the fees when due and such failure continues for thirty (30) days following written notice thereof, Provider may suspend the Services in whole or in part, or terminate this Agreement, without incurring any obligation or liability to Customer or any other person by reason of such suspension or termination.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
5. Confidential Information.
(a) Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Without limiting the foregoing, for purposes of this Agreement, the Services and Documentation shall be deemed Confidential Information of Provider. Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or to establish a Party’s rights under this Agreement, including to make required court filings. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire two (2) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership.
(a) Provider Intellectual Property. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title and interest, including all intellectual property rights, in and to the Services, Documentation, and other Provider intellectual property, and, with respect to any third-party products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the third-party products. Customer further acknowledges that: (a) the Software is an original compilation protected by United States copyright laws; (b) Provider has dedicated substantial resources to write, collect, compile, and manage the Database; and (c) the Services constitute trade secrets of Provider. Customer acknowledges and agrees that it will be considered a material breach by Customer under this Agreement if Customer contests any of Provider’s right, title, or interest in or to the Services anywhere throughout the world.
(b) Customer Intellectual Property. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the underlying Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer. Customer also hereby grants to Provider a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the aggregated statistics or other results of the analytics performed thereon by Provider.
7. Disclaimer of Warranties. THE SERVICES AND DOCUMENTATION, AND THIRD PARTY PRODUCTS, IF ANY, ARE PROVIDED “AS IS” AND PROVIDER AND ANY RESPECTIVE THIRD PARTIES HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. PROVIDER AND ANY THIRD PARTIES SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR RELIANCE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES AND DOCUMENTATION, OR ANY SERVICES, PRODUCTS, OR RESULTS OF THEIR USE, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (c) LOSS OF GOODWILL OR REPUTATION, (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY CUSTOMER OR OTHER DATA OR BREACH OF CUSTOMER OR OTHER DATA OR THE DATABASE OR SYSTEM SECURITY, OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. WITH RESPECT TO JURISDICTIONS THAT MAY NOT ALLOW THE EXCLUSION OF LIABILITY BUT MAY ALLOW LIABILITY TO BE LIMITED IN SOME CASES, PROVIDER’S LIABILITY SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00).
9. Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any and all losses, damages, liabilities, or costs (including attorneys’ fees) (”Losses”) resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) based on Customer’s: (i) negligence or willful misconduct; or (ii) use of the Services or Documentation in a manner not authorized by this Agreement, provided that Customer may not settle any Third-Party Claim against Provider unless such settlement completely and forever releases Provider from all liability with respect to such Third-Party Claim and unless Provider consents to such settlement, and further provided that Provider shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
10. Term and Termination.
(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect for twelve months (the “Initial Term”). This Agreement will automatically renew for an additional twelve month term, unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
(i) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider’s delivery of written notice thereof; or (B) breaches any of its other obligations under this Agreement;
(ii) Customer may terminate this Agreement, effective on written notice to the Provider, at any time, provided however that Customer shall not be entitled to any refund of any previously paid Fees.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Services and Provider’s intellectual property and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the Documentation and Provider’s other intellectual property. To be clear, this cessation of use and destruction or return obligation with respect to the Services and Documentation does not prevent Customer from its continued use of the Customer Data or from copying, publishing, or otherwise disclosing the Customer Data, any compilation thereof, or the results of its previous manipulation of the Customer Data with the Services prior to the expiration or termination hereof. Provider shall not cooperate or provide any other assistance to Customer in copying or transitioning the Customer Data after expiration or termination of this Agreement, and further, within thirty (30) days of such expiration or termination, Provider may delete the Customer Data from the Database. Further, no expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund of any previously paid Fees.
(d) Survival. Any rights, obligations, or required performance of the Parties in this Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). The Parties shall deliver Notices by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(d) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(e) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Minnesota. Any legal suit, action, or proceeding arising out of or related to this Agreement or the rights or licenses granted hereunder shall be instituted exclusively in the federal or state courts located in the State of Minnesota, in each case located in the city of Minneapolis and County of Hennepin, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(f) Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No permitted assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and permitted assigns, if any.
(g) Export Regulation. The Services and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or Documentation to, or make the Services or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or Documentation available outside the US.
(h) Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by it of any of its obligations under Section 1(c) or Section 5 would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.