Sensys Terms of Service

These Terms of Service, and any terms of an Order Form, as defined below, are collectively known as “Terms” or “Agreement”, and together constitute an agreement between Sensys, LLC, a Delaware Limited Liability Company (“Sensys”) and the Customer (“Customer”), as noted in an Order Form, and its Affiliates, as defined below. Sensys and Customer may independently be referred to as a “Party” or collectively as “Parties.”

By signing an Order Form, or accessing the Services, as defined below, Customer agrees to be bound by the Terms.

1. Definitions

1.1. Affiliates. May refer to the Customer, and any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Customer.

1.2. Representatives. Any and all employees, independent contractors, agents, attorneys, Authorized Users, or other representatives of either Party.

1.3. Order Form. Written document detailing Services the Customer wishes to purchase, associated charges or fees, and any other terms as agreed between the Parties.

1.4. Effective Date. The date, as noted in the Order Form, upon which the Customer can begin accessing the Services, and upon which these Terms come into effect.

1.5. Services. The products, consulting or professional services, support services, documentation, guides, and technical resources, made available by Sensys to Customer.

1.6. Authorized User. Any individual authorized by Customer to access or use the Services on Customer’s behalf for the Customer’s business. An Authorized User must create an account through which they may access the Services. Each account is unique to one (1) Authorized User and the sharing of accounts is strictly prohibited. The number of Authorized Users shall be listed on the Order Form.

2. Access and Usage of the Services

2.1. Access and Usage. Subject to these Terms of Service, and any terms of an Order Form, Sensys grants Customer a non-exclusive, non-sublicensable, non-transferable right, during the Term (defined below), to access and use the Services, and any related documentation that Sensys may provide to support Customer’s use of the Services.

2.2. Updates and Modifications. Sensys reserves the right to update, upgrade, or modify the Services at any time, and without advance notice to Customer. Sensys will use commercially reasonable efforts to inform the customer of any updates, upgrades, modifications, or downtime, to the Services through channels such as email, website, or within the Services themselves.

2.3. Company access for customer support. From time to time, and only if absolutely necessary, Sensys reserves the right to access the Customer’s deployment of the Sensys application to debug and/or resolve technical issues.

3. Third Party Services

3.1. The Services may connect or integrate with third party applications or service providers to enhance the Customer’s product experience. Such integrations are provided at the sole discretion of Sensys and may be suspended or terminated at any time. In case of an anticipated suspension or termination, Sensys will strive to inform the Customer with reasonable due notice.

3.2. The connection or integration with third party applications or service providers may result in data, content, or information being transmitted to, and from, Sensys provided Services. Customer expressly grants Sensys the right to transmit and receive such data, content, and information from the relevant third party applications or service providers.

3.3. Sensys is not a party to any agreements the Customer may have with said third party applications or service providers and it is the Customer’s responsibility to maintain relevant agreements.

3.4. Customer also acknowledges that any third party applications and service providers are not affiliated with Sensys in any way and that Sensys is not responsible for the products or services provided by the third party or their treatment and maintenance of Customer Property and Content transmitted to the third party on the Customer’s behalf. Sensys will not be liable for any damage or loss incurred as a result of a third party’s treatment of Customer Property and Content.

4. Ownership and Rights

4.1. Company Property and Rights. The Services, content, documentation, any and all modifications, improvements, enhancements, derivative works, and all copyrights, service marks, trademarks, patents, trade secrets, and other intellectual property rights are the exclusive property of Sensys or any third-party suppliers utilized by Sensys. This is inclusive of any modifications, improvements, enhancements, or derivative works made as a result of feedback provided by Customer and any persons affiliated with Customer. Customer does not have the right to copy, modify, transfer, reverse engineer, or create any derivative works of the Services or Company Property.

4.2. Customer Property and Content. The data, content, or information uploaded by Customer to the Services, or transmitted to Sensys or its approved third-party suppliers in connection with the Service, is owned by Customer. Also included in Customer Property and Content is any data, content, or information transmitted to, or from, the Services through the Customer’s integration with a third party application or service provider, as written in clause 3. Customer expressly grants to Sensys a limited and non-exclusive right to collect, store, and use the Customer Property and Content to maintain, improve, and enhance its Services.

4.3. Application Usage Data. Sensys reserves the right to collect data relating to the Customer’s usage of this application; for example, the amount of time spent within the application, interactions with the Services’ user interfaces, or software errors, amongst other data. Such data is collected for the purposes of maintaining, improving, and enhancing the Services.

4.4. Customer expressly grants to Sensys the right to use Customer’s name, logo, and trademarks in marketing or public relations communications including, but not limited to, Sensys’ website, public releases, brochures, presentations, and other such marketing collateral or communications.

5. Customer’s Responsibilities

5.1. Usage Restrictions. Customer and its Authorized Users may not (i) permit any person to access or use the Services other than Authorized Users, each of whom is granted individual access not to be shared with other individuals; (ii) modify, alter, copy, or reverse engineer the Services; (iii) resell, rent, lease, sub-license the Services, or include the Services in a service bureau or outsourced offering; (iv) utilize the Services to input, upload, or store unlawful or harmful and injurious information including, but not exclusively, computer code, files, agents, scripts, and programs; (v) create derivative works of the Services including those that may directly compete with the Services.

5.2. Export Control. Customer represents and warrants that it, and its Authorized Users, utilization of the Services is intended for civil use only and will not be, directly or indirectly, for the production of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect nuclear end use. Customer agrees not to disclose, use, export, or re-export, directly or indirectly, any information provided by Sensys or the “direct product” thereof as defined in the Export Control Regulations of the United States Department of Commerce, except in compliance with such Regulations.

6. Payment and Taxes

6.1. Customer agrees to pay Sensys all fees and charges as stated in the applicable Order Form. These fees and charges are non-refundable unless expressly stated otherwise by Sensys in writing.

6.2. Customer undertakes that the representative signing an Order Form is duly authorized to sign on the Customer’s behalf.

6.3. Sensys reserves the right to amend its fees and charges at any time; however, any such amendments will be communicated at least thirty (30) days prior to Renewal for any Customer with a valid Order Form, and only applicable upon Renewal or commencement of a new Order Form.

6.4. Sensys shall generate its invoice on the Effective Date. Payment against any invoice is due within thirty (30) days of the date of invoice unless expressly written otherwise in the Order Form.

6.5. Unless otherwise specified in the Order Form, all fees and charges are in United States Dollars.

6.6. If Customer fails to make a payment as per the terms of clause 7.3 and 7.4, Sensys reserves the right to suspend provision of Services until such a time that the payment is made.

6.7. All fees and charges are exclusive of federal, state, local property, license, privilege, sales, use, excise, gross receipts, value-added, and other similar taxes. If Sensys or its suppliers and agents are required to pay or collect taxes on behalf of the Customer, the Customer agrees to pay or reimburse any such taxes. If Customer is exempt from the payment of any tax, Customer will, upon order placement, provide Sensys a copy of any such certificate in a form acceptable to the relevant government authorities.

7. Confidentiality

7.1. Confidential Information. Confidential Information is all non-public information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), either orally or in writing, that may be reasonably considered confidential, such as, but not exclusively, these Terms, and any terms of an Order Form, business and product strategy plans and roadmaps, software diagrams, information about business and technology partners, financial information, technical information, business processes, pricing information, and sales and marketing plans.

7.2. Duty of Care. The Receiving Party will take all necessary and appropriate actions to safeguard the Confidential Information it receives from the Disclosing Party from being disclosed except as expressly permitted by the terms of this Agreement. The Parties agree that such safeguards must be no less than that which the Receiving Party uses to prevent the unauthorized use, dissemination or publication of its own most valuable confidential and proprietary information, which care must be no less than a reasonable degree of care. The Parties further agree that the Confidential Information received by the Receiving Party or its Representatives will not be used for any purposes other than for the Purpose of these Terms. The Parties further agree that Confidential Information may only be disclosed to those Representatives of the Receiving Party who need to know such information. Before making any such disclosure to its Representatives, the Receiving Party agrees that (i) its Representatives must be informed of the confidential nature of the Disclosing Party’s Confidential Information and obtain the Representative’s agreement to be bound to the terms and conditions of these Terms as though an original party to the same; (ii) the Receiving Party must be responsible for any breach of this Agreement by any of its Representatives; (iii) the Receiving Party may not disclose Confidential Information to any third parties, who are not Representatives, without the prior written consent of the Disclosing Party.

7.3. Exceptions. Confidential Information does not include information which (i) is or becomes generally available to the public without breach of these Terms by the Receiving Party or its Representatives provided such general public availability is not a result of a wrongful disclosure by the Receiving Party or its Representatives; (ii) was available to the Receiving Party or its Representatives on a non-confidential basis at the time of or prior to its disclosure by the Disclosing Party under these Terms; (iii) becomes known to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Disclosing Party hereunder or its Representatives; provided, however, that such third party providing the information is not bound by a confidentiality agreement with the Disclosing Party or otherwise legally prohibited from transmitting the Confidential Information; (iv) is, or can reasonably be proved to have been, developed independently by the Receiving Party.

7.4. Compelled Disclosures. In the event that the Receiving Party or its Representatives receive a demand by legal process to disclose any Confidential Information received from the Disclosing Party, it is agreed that the Receiving Party or its Representatives, will provide the Disclosing Party with immediate written notice, so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of these Terms. In the event that such a protective order or other appropriate remedy is not obtained, or that the Disclosing Party waives compliance with the provisions of these Terms, the Receiving Party agrees that it, and its Representatives, will furnish only that portion of the Confidential Information or other information which, in the opinion of the Receiving Party’s legal counsel, the Receiving Party is compelled to disclose or else stand liable for contempt or suffer other censure or penalty. The Receiving Party must endeavor to obtain reliable assurance that confidential treatment will be accorded the Confidential Information being disclosed.

8. Warranties

8.1. Each Party represents and warrants that it has the authority to enter into this Agreement and that its obligations under the Agreement will not violate any agreement with a third party.

8.2. Sensys warrants that (i) it owns and has the right to license the Services to Customer; (ii) it will provide the Services in accordance with accepted industry standards and practices; (iii) the Services have been developed and delivered in compliance with applicable law.

8.3. Customer warrants and understands that it and its representatives are solely responsible for the use of the Services and any actions taken as a result of the Services.

8.4. Except as otherwise expressly set forth herein, the Services are provided “AS IS” and Sensys disclaims all warranties whether expressed or implied, including warranties of merchantability, fitness for a particular purpose, accuracy, quality, and non-infringement. Sensys does not warrant that the Services will be error-free, secure, or uninterrupted.

9. Indemnification

9.1. To the fullest extent permitted by law, Customer agrees to indemnify and hold harmless Sensys and its directors, officers, employees, or any other representatives, from and against all claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of, or resulting from, any claim by a third party based on Customer’s usage of the Services in violation of this Agreement or Customer’s violation of applicable laws or the rights of a third party.

9.2. To the fullest extent permitted by law, Sensys agrees to indemnify and hold harmless the Customer from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from a third party’s claim that the Customer’s usage of the Services violates the intellectual property rights of said third party. This indemnification shall not apply (i) if the Customer has breached any other term of this agreement; (ii) modified the Services in any way without the express written consent of Sensys; (iii) violated any applicable laws; (iv) or as it relates to Customer Property and Content.

10. Severability

10.1. If any of the terms of this Agreement are invalid, illegal, or unenforceable, for any reason, the validity of the remaining terms will remain unaffected and those terms will be construed as if such invalid, illegal, or unenforceable term or portion thereof had never existed.

10.2. If any terms of this Agreement are adjudicated to be overbroad, invalid or unenforceable, a court may modify or sever such terms, such modification or deletion to apply only with respect to the operation of such terms in the particular jurisdiction in which such adjudication is made. In addition, if any of the terms contained in this Agreement are found to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it so as to be enforceable to the extent compatible with the applicable law as it shall then appear.

11. Remedies and Injunctive Relief

11.1. Customer acknowledges that a remedy at law for any breach or threatened breach of the terms of this Agreement would be inadequate and that Sensys shall be entitled to injunctive relief in case of any such breach or threatened breach. Customer acknowledges and agrees that a violation of this Agreement would cause irreparable harm to Sensys. Sensys’ right to injunctive relief shall be cumulative and in addition to any other remedies available at law or equity. In the event that a court determines that Customer has breached or threatened to breach this Agreement, Customer agrees to reimburse Sensys for all attorneys’ fees and costs incurred in enforcing the terms of this Agreement. However, nothing contained herein shall be construed as prohibiting Sensys from pursuing any other remedies available for any such breach or threatened breach against Customer, which may also include, but not be limited to, contract damages, lost profits and punitive damages.

12. Disputes and Arbitration

12.1. If a dispute arises, the Parties will attempt, in good faith, to promptly resolve the dispute by negotiations between representatives who have authority to settle the dispute. If unsuccessful, the Parties will attempt, in good faith, to settle the dispute by non-binding third-party mediation, with fees and expenses of such mediation apportioned equally to each Party.

12.2. If mediation is unsuccessful, the dispute shall be decided by arbitration before a single neutral arbitrator and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator shall be an individual with experience in intellectual property, and software development and licensing. Any arbitration hearings will be within the State of California.

12.3. Both Parties agree to keep any dispute negotiations and arbitration proceedings confidential.

13. Force Majeure

13.1. Other than payment obligations, neither Party will be liable for any delay or failure to perform its obligations under this Agreement resulting from a cause beyond the Party’s reasonable control including acts of government, acts of war or terrorism, pandemics, fires, floods, earthquakes, or other natural disasters, labor strikes, riots, embargos, blockades, utility outages, and other such events out of the Party’s control.

14. Limits of Liability

14.1. Except for the (i) indemnification obligations set forth in this Agreement; (ii) Confidentiality obligations set forth in clause 7; (iii) Ownership and Rights obligations set forth in clause 4; and (iv) Customer’s Responsibilities obligations set forth in clause 5, neither Party will be held liable for consequential damages including but not limited to loss of data, loss of profits, loss of use, business interruption, and cost of substitute products or services, as a result of the terms of this Agreement.

14.2. Except for the exclusions listed in clause 14.1, Sensys’ maximum liability arising from the terms of this Agreement will not exceed the amount of fees or charges paid by the Customer to Sensys in the six (6) months preceding the initial occurrence of the event leading to such the claim.

15. Relationship between the Parties

15.1. This Agreement will in no way establish employment, partnership, joint venture, or agency between the Parties.

16. Entire Agreement

16.1. This Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous communications or agreements, oral or written, relating to the subject matter covered within this Agreement.

17. Waivers

17.1. A failure to enforce any provision or clause of this Agreement will not be deemed a waiver of any other provision or clause.

17.2. Any provision or clause of this Agreement may only be waived with the express written consent of both Parties.

18. Term

18.1. Term. The Term, which begins on the Effective Date, is the time period, as specified in the Order Form, and extended by any subsequent Order Form, during which the Customer is authorized to access the Services. These Terms of Service will be effective from the Effective Date through the end of the Term.

18.2. Renewal. Unless communicated in writing by either Customer or Sensys, and at least thirty (30) days prior to the end of a Subscription Term, the Order Form will automatically renew for the same duration as the previous Subscription Term.

19. Termination

19.1. Termination at the end of the Term. These Terms, except the provisions in clause 19.3, shall be considered terminated at the end of the Term, as defined in clause 18.

19.2. Termination for cause. Either party may terminate these Terms, and any terms of an Order Form, if the other party materially breaches these Terms, and any terms of an Order Form, and fails to rectify such breach within thirty (30) days of receiving written notice of such a breach.

19.3. Surviving clauses. The following clauses shall survive the termination or expiration of this agreement for any reason: 3 – 21, and such clauses or provisions that by their nature are intended to survive termination or expiration.

20. Limitation of Action

20.1. Any legal action or claim arising out of this Agreement shall be barred unless brought within five (5) years of the date of the event or act.

21. Governing Law

21.1. This Agreement will be governed and interpreted according to the laws of the State of Delaware, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods.