SenseOn Online Customer License Agreement UK Version
ONLINE CUSTOMER LICENSE AGREEMENT
THIS AGREEMENT GOVERNS THE CUSTOMER’S ACQUISITION AND USE OF SENSEON’S PRODUCTS AND SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
By (1) clicking a box indicating acceptance, (2) executing a Schedule that references these terms and conditions, or (3) using any of the Products, the Customer agrees to this Agreement. If the individual accepting this Agreement is accepting it on behalf of a company or another legal entity, such individual represents that they have the authority to bind such entity to this Agreement, in which case the term “Customer” shall refer to such entity.
If the individual accepting this Agreement does not have such authority, or does not agree with this Agreement, that individual must not accept this Agreement and may not use the Products.
This Agreement was last updated in July 2024. It is effective between the Customer and SenseOn as of the date of the Customer agreeing to this Agreement (the “Effective Date”).
1. DEFINITIONS.
“Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means ownership of at least fifty percent (50%) of the issued share capital of a company or the legal power to control the operations of the entity in question.
“Agreement” means this Agreement.
“Authorized User” means each of Customers and Customer’s Affiliates’ employees, agents, representatives, and/or contractors who are permitted to use any of the Products under the terms and conditions of this Agreement.
“Business Day” means a weekday, other than a nationally recognized public holiday in England.
“Charges” means any and all amounts payable by Customer to SenseOn or to a Reseller pursuant to a Schedule.
“Confidential Information” means any and all information disclosed to or learned by one party (“Recipient”) in the course of this Agreement, which is or should be reasonably understood to be confidential or proprietary of other party (“Discloser”). It does not include information which the Recipient can demonstrate: (a) was publicly available at the time of disclosure to it; (b) was published or otherwise became publicly available after disclosure to the Recipient, through no fault of its own; (c) was in the possession of the Recipient at the time of disclosure to it from a third party who had a lawful right to such information and disclosed such information to it, without a breach of duty owed to the Discloser; or (d) was independently developed by the receiving party without reference to information of the Discloser, as proven by dated written records.
“Content” means any data and information made available by SenseOn to the Customer through the Software.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into a Schedule.
“Customer Data” means data and information submitted by or on behalf of Customer to the Products.
“Data Centre Region refers to the geographic region in which the Products are physically located.
“Documents” means any specifications, user guides, technical manuals and similar documents (if any) relating to any of the Products, provided by SenseOn to the Customer, either before or at the date of this Agreement or subsequently during the Subscription Term.
“DPA” means SenseOn’s data processing agreement, incorporated in and forming part of this Agreement.
“Enhancement” means any enhancement of Software, including error corrections, new releases, new features or improvements to functionality of Software.
"Force Majeure Event” means any unforeseen event that impairs a party’s ability to perform its obligations hereunder, where such event reasonably outside such party’s control. Examples of Force Majeure Events include acts of God; acts of a public enemy; acts of terrorism, acts of any government; fires; floods; pandemics, epidemics; quarantine restrictions; freight embargoes; unusually severe weather conditions, and the other party’s delay or failure in performing its obligations, where such performance is essential to the affected party’s performance hereunder (provided that, in every case, the delay or failure to perform is without the fault or negligence of the delayed or failing party, and that such delayed or failing party makes reasonable efforts to cure the delay or failure as soon as possible after the occurrence of the unforeseen event).
"Hardware" means all computer hardware and components provided by SenseOn as part of the Products.
“Intellectual Property Rights” means all worldwide intellectual property rights arising under statutory or common law or by contract, now existing or hereafter filed, issued, or acquired, including all: (a) patent rights and rights under patent applications; (b) rights associated with works of authorship including copyrights and moral rights; (c) rights relating to the protection of confidential information (including trade secrets and know how); (d) rights in trademarks, service marks, logos, business and domain names, trade dress, trade names, computer software, database rights and design patent rights; (e) rights in goodwill or to sue for passing off, unfair competition rights; and (f) any right analogous or related to the foregoing and any other proprietary rights relating to intangible property, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
"Location(s)" means the Customer’s business location (or any data centre or similar facility which it may use for its information technology systems) as described in a Schedule.
"Notifications" means Product features which provided notice of potentially hostile activity on a Customer’s systems;
“Personal Data” means “personal data” as defined in the DPA.
“Products” means the Hardware and the Software.
“Reseller” means an entity authorised by SenseOn to act as a reseller of the Products.
“Schedule” means (a) each order document provided by SenseOn, representing a Subscription to the Products and Services (and any subsequent modifications to a Subscription agreed to between the parties in writing from time to time) and which, when mutually-executed, is incorporated in, and forms part of, this Agreement or (b) if the Customer has purchased a Subscription to the Products and Services via a Reseller, each order document setting out the details of such Subscription(s) (and any subsequent modifications to a Subscription agreed by SenseOn in writing from time to time) which is incorporated in, and forms part of, this Agreement.
“SenseOn” means SenseOn Tech Limited, a company incorporated and registered in England and Wales with company number 11032394 with its registered office at 8 St. James's Square, St James's, London, England, SW1Y 4JU.
“Services” means any of the services to be provided to the Customer by or for SenseOn as detailed in a Schedule.
“Software” means the software products owned or licensed by SenseOn, including the Content, and any Enhancements.
“Subscription” means a subscription for the Products pursuant to a Schedule.
“Subscription Term” means the duration of a Subscription set forth on a Schedule.
“Virus” means any item or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including back doors, bots, malware, ransomware, time bombs, worms, trojan horses, viruses and other similar things or devices.
2. PROVISION OF THE PRODUCTS AND THE SERVICES.
2.1 Provision of Services. Subject to the terms and conditions of this Agreement and each Schedule, SenseOn will:
(i) sell the Hardware to the Customer.
(ii) during the Subscription Period, make the Software available to Authorized Users in accordance with the Documents for use in connection with Customer’s internal business operations on a subscription basis; and
(iii) during the Subscription Period, provide the Services.
SenseOn may modify the Products and the Services from time to time and will endeavour to ensure that any such modification does not materially diminish the core functionality, performance, security, or stability of the Products or Services overall during an applicable Subscription Term. The provision of the Services by SenseOn is dependent on the Customer’s cooperation and the Customer providing SenseOn with complete and correct information required for the Customer’s receipt of the Services.
2.2 Access Rights Granted to Customer. Subject to the terms and conditions of this Agreement and each Schedule (including the Customer’s obligation to pay all Charges hereunder when due), SenseOn grants to the Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the relevant Subscription Term for the Customer and its Authorized Users to access and use the Software solely for the Customer’s internal business purposes, comprising its cybersecurity arrangements. The Customer is responsible for all Authorized Users’ compliance with this Agreement, such that any act or omission by an Authorized User that is inconsistent with this Agreement will be attributable to the Customer.
2.3 Access Conditions.
(i) Technical Requirements. To access and use the Software, the Customer must ensure that each Authorized User has access to an internet connection and otherwise meets the minimum technical requirements set out in the Documents. The Customer may only use the Software (or allow it to be used) on the Hardware and the Hardware shall not be used to run any software other than the Software and any open-source software which SenseOn provides or installs or otherwise designates in writing is for use as part of the Products.
(ii) Authorized User Accounts. The Customer will access and manage the Software by means of user accounts which are assigned to each Authorized User (each, a “User Account”). The Customer is responsible for all activity occurring under such User Accounts, and for monitoring compliance with such account limitations. The Customer will ensure that it assigns appropriate passwords to each such User Account and will keep such passwords secure. The Customer will, and will cause the Authorized Users, to: (a) notify SenseOn immediately of any unauthorised use of any password or User Account or any other known or suspected breach of security; and (b) not impersonate another person or provide false identity information to gain access to or use the Products.
Without limitation, SenseOn may immediately remove or suspend any User Account affected by the activities described in the foregoing sections (a) or (b). SenseOn is not responsible for any harm caused by the Customer’s users, including individuals who were not authorised to have access to the Products but who were able to gain access because usernames, passwords or accounts were inadequately protected by the Customer or Authorized Users.
(iii) Scope of Use. The Software may be accessed by Authorized Users only in accordance with their User Account. Neither the Customer nor any Authorized User acquires any right or license to use the Software, in excess of the scope and/or duration as set out in the applicable Schedule. At the end of the applicable Subscription Term (or earlier, if this Agreement is terminated), the Customer’s and all Authorized Users’ right to access and use the Software and the Documents will terminate.
2.4 Access Restrictions. The Customer will not do or attempt (nor authorize or permit any third party, including Authorized Users) to do any of the following:
(i) sub-licence, transfer or deal in any other way with any of the Software;
(ii) access or use, or permit any third party to access or use, the Software, except as expressly permitted herein (including in the applicable Schedule);
(iii) copy, frame or mirror any part of the Software including the look and feel of the Software or any part thereof, or any ideas, features, functions or graphics of the Software;
(iv) save as and to the extent permitted by applicable law, copy, reproduce, distribute, republish, download, display, post, transmit, translate, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile or access for a competitive purpose, the Software or any part thereof, or otherwise attempt to discover any source code or modify the Software in any manner or form (the foregoing prohibition includes a review of data structures or similar materials produced by programs), or sell, resell, rent or lease the Software or otherwise commercially exploit any part of the Software or make any part of the Software available to a third party (including any person or entity who is not an Authorized User), including as a service bureau;
(v) use the Products (a) to store or transmit materials which are infringing, libelous, or otherwise unlawful or tortious; offensive; or in violation of Intellectual Property Rights or privacy rights, or (b) in violation of the Documents; or (c) otherwise in breach of any applicable law or regulation;
(vi) use the Products to upload, email, post, publish, or otherwise transmit any material for any purpose that may: (a) menace or harass any person or cause damage or injury to any person or property; (b) involve the publication of any false, defamatory, harassing, or obscene material; or (c) promote bigotry, racism, hatred, or harm; (d) constitute unsolicited bulk e-mail, “junk mail”, “spam”, or chain letters;
(vii) use efforts less than industry standard efforts to prevent the storage or transmittal of Viruses through the Software;
(viii) interfere with or disrupt the integrity or performance of the Software;
(ix) attempt to gain unauthorized access to the Software or its related systems or networks;
(x) use or knowingly permit the use or disclosure of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Software, including through network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, penetration testing, or similar activities; or
(xi) remove or modify any program markings or any notice of SenseOn’s or its licensors’ proprietary rights.
(xii) use the Products for any purposes that were not intended (as described in the Documents, user manuals, technical guides, and any other materials supplied with the Products that describe their intended use).
In addition to any other rights afforded to SenseOn under this Agreement, SenseOn reserves the right, but has no obligation, to take remedial action in the event of breach by Customer of any of the foregoing restrictions, including the removal or disablement of access to the Software. SenseOn shall have no liability if SenseOn takes such action. The Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Customer Data.
2.5 Data Centre Region. If the Schedule specifies the Data Centre Region in which the Software will be provided, such region is where Customer’s environment will be provided and supported; otherwise, SenseOn may select a Data Centre Region in its sole discretion provided that such selection complies with the DPA between the parties. SenseOn and its Affiliates may perform aspects of the Services, such as service administration and support, as well as other Services (including disaster recovery), from locations and/or through the use of subcontractors, worldwide.
2.6 Warranty Offered in Lieu of Acceptance. The Hardware is deemed irrevocably accepted upon delivery and/or performance. However, the foregoing does not affect or limit SenseOn’s warranty obligations (or the Customer’s rights relating thereto), as and to the extent set forth in clause 7 (“Warranties & Disclaimer”).
2.7 Trial Subscriptions. If the Customer receives free access or a trial, evaluation, or similar subscription to any of the Products (a “Trial Subscription”), the Customer may use the Products in accordance with the terms and conditions of this Agreement (except as otherwise set forth below) for the period designated in the Schedule or otherwise by SenseOn (and if not designated, then for thirty (30) days) (the “Trial Period”). Trial Subscriptions are permitted solely for the Customer’s use to determine whether to purchase a full subscription to the Products. The Customer may not use a Trial Subscription for any other purposes. At the end of the Trial Period, the Trial Subscription will expire, and all Customer Data will be permanently deleted, unless the Customer purchases a paid subscription to the Products (provided that the paid subscription is for the same Products that were provided as part of the Trial Subscription). If the Customer purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Products. Each party has the right to terminate a Trial Subscription at any time. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SENSEON WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS (WHICH, FOR CLARITY, ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”).
3. OWNERSHIP & INTELLECTUAL PROPERTY.
3.1 Delivery and Title. SenseOn shall deliver the Products Ex Work (Incoterms 2010) to the Location(s). SenseOn shall use its reasonable efforts to deliver the Products by any delivery date set out in the Schedule. Risk in the Products shall pass to the Customer on Delivery. Full title to the Hardware will pass to the Customer following SenseOn’s receipt of full payment in cleared funds in respect of the first invoice payable under the Schedule. Following Delivery and until such time as title in the Hardware has passed to the Customer, the Customer shall not part with possession of it and shall keep it separate, identified as SenseOn’s property, insured and free and clear of all third-party claims and rights.
3.2 Customer Ownership. As between the parties, the Customer retains all ownership and Intellectual Property Rights in and to the Customer Data. The Customer is solely responsible for properly backing-up and taking all other appropriate measures to protect its data (or any data it processes on behalf of others).
3.3 Customer Data. The Customer hereby grants to SenseOn a non-exclusive, sublicensable, transferable, perpetual, irrevocable, worldwide, royalty free right and licence to use the Customer Data to provide the Software during the Subscription Term plus any additional post-termination period in accordance with clause 5.3(ii). The Customer hereby grants to SenseOn a non-exclusive, sublicensable, transferable, perpetual, irrevocable, worldwide, royalty free rights and licence to use Customer Data (excluding any Personal Data) on a generic, anonymized, aggregate basis along with SenseOn’s use of similar data from SenseOn’s other customers, such that there is no way to identify the Customer as the source of Customer Data for any purpose relating to SenseOn’s business, including: (a) to analyse, calibrate, and improve the performance and usability of the Products, (b) to develop unique products and services, and (c) for general industry analysis and reporting.
3.4 SenseOn Ownership.
(i) General. SenseOn or its licensors own and will continue to retain all and exclusive ownership and Intellectual Property Rights in and to the Software and the Documents, and derivative works thereof, and in and to anything developed or delivered by or on behalf of SenseOn under this Agreement. The foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning. SenseOn also owns and will continue to retain all ownership and Intellectual Property Rights in and to any suggestions, ideas, enhancement requests, and other feedback that the Customer may provide to SenseOn with regard to the foregoing, it being acknowledged that the provision of such feedback is at the Customer’s sole discretion. The Customer agrees and acknowledges that the Customer is not obtaining any ownership rights, or Intellectual Property Rights in or to any of the foregoing, other than the rights of use specifically granted in this Agreement. No implied licenses are granted hereunder, and any and all rights not expressly granted by SenseOn hereunder are reserved.
(ii) Trademarks. Without limiting the generality of subsection (i) above, as between the parties, all SenseOn trademarks, trade names, logos and notices present on the Products and Documentation are SenseOn property and will be preserved and not deliberately defaced, modified or obliterated. Neither party will use any trademarks, trade names, logos and notices of the other party without the express prior written authorisation of such other party, provided, however, that the Customer agrees that SenseOn may include the Customer’s name and other indicia in its lists of customers of SenseOn in promotional and marketing materials.
3.5 Installation and testing. Unless otherwise indicated in the Schedule, SenseOn shall install and test the Products following Delivery in accordance with its standard procedures (“Installation”). The Customer may inspect and test the Products during or after Installation, and if as a result thereof it considers that any of them does not comply or is unlikely to comply with any of SenseOn’s warranties herein, it shall inform SenseOn and SenseOn shall as soon as is reasonably practicable take such remedial action as is necessary to ensure compliance.
4. CHARGES & PAYMENT.
4.1 Charges. The Customer will pay all Charges or charges to SenseOn or the Reseller as the case may be in accordance with the Schedule and this clause 4. Charges are a factor of subscription volume, length of service term, user quantity, and other commercial variables. Except as otherwise specified in this Agreement or a Schedule: (a) Charges are quoted and payable in GBP; (b) Charges are based on services purchased and not actual usage; (c) payment obligations are non-cancellable, and Charges paid are non-refundable (except as otherwise provided in clauses 7.1 and 7.2); and (d) the number of subscriptions purchased cannot be decreased during the relevant Subscription Term. If a Schedule specifies any limits for the applicable Software, the Customer agrees not to exceed such limit(s); otherwise, SenseOn will charge for, and the Customer agrees to pay for such additional access.
4.2 Invoicing & Payment. The Customer will provide SenseOn or the Reseller with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to SenseOn or the Reseller. If the Customer provides credit card information, the Customer authorizes SenseOn or the Reseller to charge such credit card for all of the Products purchased listed in the Schedule for the initial Subscription Term and any renewal subscription term(s) as set forth in clause 5.1. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Schedule. If the Schedule specifies that payment will be by a method other than a credit card, SenseOn or the Reseller will invoice the Customer in advance and otherwise in accordance with the relevant Schedule. Unless otherwise stated in the Schedule, invoiced Charges are due net 30 days from the invoice date. The Customer is responsible for providing complete and accurate billing and contact information and notifying SenseOn or the Reseller of any changes to such information.
4.3 Taxes. All Charges are exclusive of all value added tax or any equivalent taxes chargeable for the time being in the UK or elsewhere (VAT), levies, or duties, and the Customer will be responsible for payment of all such taxes, levies, or duties, excluding taxes based solely on SenseOn’s income. The Customer will pay all Charges free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of Charges will be the Customer’s responsibility, and the Customer will provide receipts issued by the appropriate taxing authority to establish that such taxes have been paid.
4.4 Effect of Nonpayment. This Agreement and the Products may be suspended or terminated if the Customer’s account falls into arrears. and five (5) Business Days have passed after written notification to the Customer (email sufficing). Unpaid amounts are subject to interest at the lesser of 8% per month or the maximum permitted by law plus all collection costs. The Customer will continue to be charged for Services during any suspension.
4.5 Invoice Disputes. If the Customer in good faith disputes a portion of an unpaid invoice, the Customer will notify SenseOn within thirty (30) days from the date of such unpaid invoice. The Customer agrees to provide reasonable supporting documentation to SenseOn concerning any amount disputed, along with the Customer’s dispute notice, and the Customer acknowledges and agrees that invoices issued in accordance with the Schedule will be presumed to be valid and payable. The amount not in dispute (i.e. not subject to a timely dispute notice) shall be paid in accordance with the terms of this Agreement. Once an invoice dispute is resolved, the Customer will pay the agreed-upon amount within thirty (30) days of dispute resolution. If necessary, SenseOn will reissue an invoice for the undisputed and disputed portions of the invoice to facilitate the Customer’s payment of the undisputed invoice amount.
5. TERM & TERMINATION.
5.1 Term. This Agreement is effective during the period commencing as of the Effective Date and expiring on the last day of the last Subscription Term under any Schedule entered into under this Agreement. With regard to each Schedule, unless the Schedule specifies otherwise, if this Agreement or such Schedule has not terminated early in accordance with its terms, the Subscription Term will renew for a renewal Subscription Term equal in duration to the Subscription Term then ending (but not less than one (1) year), at SenseOn’s then-current list price Charges (or such other Charges as the parties may mutually accept), for as long as SenseOn continues to provide the applicable Service. However, if either party provides written notice of nonrenewal at least thirty (30) days prior to the expiration of the then-current Subscription Term, the applicable Service and associated Schedule will not renew. SenseOn reserves the right to discontinue any Service component effective as of the conclusion of the Customer’s then-current Subscription Term.
5.2 Termination. Either party may terminate this Agreement in whole or in part including all related Schedules immediately if (a) the other party fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) the other party repeatedly breaches any terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; (c) the Customer’s use of the Products (or any part of them) becomes unlawful; (d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986; (e) if the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (f) if a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (g) if an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company); (h) if the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; (i) if a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (j) if a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; (k) if any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this Clause 11 (inclusive); (l) if the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
5.3 Effects of Termination.
(i) Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to a Party by the other Party under this Agreement before such expiration or termination will be immediately due and payable; (b) the Customer will immediately cease any and all use of the Products, destroy all copies of the Documents and permanently erase the Software from any media; and (c) each Recipient will return Discloser’s Confidential Information, in whatever form it may exist, and all copies thereof, of the other party that it obtained during the course of this Agreement, or, as directed by the other party, destroy such Confidential Information.
(ii) Upon request by the Customer made either before or within thirty (30) days after the effective date of expiration or termination of this Agreement (or a Schedule), SenseOn will make available to the Customer a complete download of the associated Customer Data in its then current file or database format, or as such other format as the parties may agree in writing. The Customer agrees that SenseOn will not be liable to the Customer, any Authorized User, or any other third party for any cessation of access to the Products following the expiration or termination of this Agreement or any Schedule, including for any damages arising out of any party’s reliance on the continued availability of the Products.
(iii) Any obligation to return, destroy or permanently erase Confidential Information (including Customer Data) set out in this Agreement shall not apply in respect of Customer Data that SenseOn may be entitled to retain pursuant to clause 3.3.
5.4 Suspension. In addition to its other rights under this Agreement, SenseOn may immediately suspend or terminate access to the Products by the Customer or any Authorized User(s) in order to: (a) prevent damage to or degradation of the Products; (b) comply with any applicable law, court order, or other governmental request or order, upon written notice; or (c) respond to any non-payment of payments due by the Customer as set out herein (except to the extent subject to a good-faith dispute). If suspended, SenseOn will promptly restore use of the suspended Products to the Customer as soon as the event giving rise to the suspension has been resolved to the reasonable satisfaction of SenseOn. Where the event giving rise to the suspension has not been resolved to the reasonable satisfaction of SenseOn within thirty (30) days of the effective date of such suspension, SenseOn may terminate this Agreement and any and all associated Schedule(s) upon prior written notice.
5.5 Survival. The following clauses of this Agreement will survive the expiration or early termination of this Agreement or any individual Schedule: 1 (“Definitions”), 2.4 (“Access Restrictions”), 3 (“Ownership & Intellectual Property”), 4 (“Charges & Payment”), 5.3 (“Effects of Termination”), 5.5 (“Survival”), 6 (“Confidentiality”), 7.3 (“Warranty Disclaimer”), 9 (“Limitation of Liability”), and 10 (“General”).
6. CONFIDENTIALITY.
The Recipient will use the same care to prevent disclosing the Discloser’s Confidential Information as the Recipient employs to avoid disclosure, publication, or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care. Except as contemplated by this Agreement, including for the purpose of providing the Products, the Recipient will not make any use of the Discloser’s Confidential Information or refuse to promptly return, provide a copy of, or destroy the Discloser’s Confidential Information upon the Discloser’s request (provided that SenseOn will be excused from its performance hereunder to the extent that such Confidential Information was required for such performance). The Recipient will immediately notify the Discloser upon gaining knowledge of any disclosure, loss, or use of the Discloser’s Confidential Information in violation of this Agreement. The Recipient will share the Discloser’s Confidential Information with the Recipient’s employees, agents and contractors only on a “need to know” basis in connection with performance of the Discloser’s obligations under this Agreement. If the Recipient is served with a court order compelling disclosure of any the Discloser’s Confidential Information, it will, to the extent allowed under law, provide the Discloser with immediate notice thereof, provide the Discloser with a reasonable opportunity to oppose disclosure, and reasonably cooperate in good faith with the Discloser in any opposition to disclosure. The parties acknowledge and agree that any disclosure of Confidential Information resulting from a data or security breach of the Software will not be a breach of this clause, unless such breach is the direct result of the breach by SenseOn of the security measures set out in the DPA.
7. WARRANTIES & DISCLAIMERS.
7.1 SenseOn Warranties as to Products. SenseOn warrants to the Customer that (a) the Products, if properly installed and used on the designated Hardware and when used in accordance with the instructions in the Documents and this Agreement, will perform substantially in accordance with the applicable Documents; (b) the Hardware will be free of defects in design, materials and workmanship and will be substantially in accordance with the applicable Documents; (c) the Hardware will be of satisfactory quality and fit for any purpose made known to SenseOn by the Customer (and, in this respect, the Customer lies on SenseOn’s skill and judgment); (d) the Hardware will comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of goods. If the Customer notifies SenseOn of a breach of the foregoing warranties, SenseOn’s entire liability and the Customer’s sole and exclusive remedy for such breach will be, at SenseOn’s election, to either: (a) reperform, modify, or replace the affected Products within a reasonable period so that it so conforms to such warranty; or (b) provide a refund of the proportion of the Charges paid for the affected Products, and solely as to the refunded Products, this Agreement, and the Customer’s right to access such Product will immediately terminate. SenseOn will have no obligation under this Agreement to correct, and SenseOn makes no warranty with respect to, errors caused by or relating to: (a) use of the Products in a manner inconsistent with the Documents or this Agreement (including for the avoidance of doubt, breach of the restrictions in clause 2.4); (b) neglect, misuse, mishandling, failure to maintain appropriate conditions, accident or natural disaster; unusual stress or fluctuations in electrical power; improper maintenance, failure to adopt Enhancements or (b) the use of the Products in conjunction with any other products, hardware, equipment, software, or data not expressly authorised by SenseOn or the Hardware if it has been repaired or tampered with by personnel not approved by SenseOn; or (c) where any Product is provided free of charge for evaluating or testing. SenseOn may require the return of Hardware alleged to be in breach of the above warranties prior to any repair, replacement or refund. Unless is it shown not to be in such breach, SenseOn shall bear the reasonable cost of return. Should the Hardware returned by the Customer not evidence breach of any of the warranties above, the Customer shall remain liable for any Charges related to the Hardware.
7.2 SenseOn Warranties as to Services. SenseOn warrants that (a) the Services shall be provided with the best skill, diligence and care in accordance with best industry practice, (b) that it has and will have throughout the Subscription Term, the licences, permissions, authorisations consent and permits that it needs in order provide the Services; (c) it shall co-operate with the Customer in all matters relating to the Services, and comply with all reasonable instructions of the Customer; (d) it will use personnel who are suitably skilled and experienced to perform tasks assigned to them, and sufficient numbers to ensure that the Services are properly provided; (e) it will ensure that the Services conform with all descriptions and specifications set out herein. Where this Agreement describes specific service levels in relation to all or any of the Services, SenseOn shall use reasonable endeavours to achieve such service levels but shall only be liable for a failure to meet such service levels where the document concerned specifies that Service Credits shall be applied in the case of such failure. Where Service Credits are so specified, they shall be the Customer’s sole and exclusive remedy for SenseOn’s failure to achieve the specified service levels and the aggregate amount of any Service Credits applied shall be taken into account in calculating the aggregate liability of SenseOn under clause 9. Without limiting clause 7.3, unless expressly agreed, the Services do not include detecting or analysing or taking any action with respect to any Notifications.
7.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN CLAUSES 7.1 AND 7.2, SENSEON MAKES NO, AND ACTIVELY DISCLAIMS ANY, TERM, CONDITION, REPRESENTATION, WARRANTY, OR GUARANTEE, INCLUDING THOSE RELATING TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE PRODUCTS AND THE DOCUMENTATION. ALL OTHER TERMS, CONDITIONS, REPRESENTATIONS, GUARANTEES AND WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED TERM, REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED BY SENSEON TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, SENSEON MAKES NO WARRANTY THAT THE PRODUCTS AND THE DOCUMENTATION WILL BE ERROR FREE, WILL FUNCTION WITHOUT INTERRUPTION OR WILL MEET ANY CUSTOMER-SPECIFIC REQUIREMENTS, SPECIFICATIONS, OR EXPECTATIONS. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES (A) THAT THE PRODUCTS AND THE DOCUMENTATION ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY HIGH RISK OR STRICT LIABILITY ACTIVITY AND, (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THAT SENSEON MAKES NO, AND ACTIVELY DISCLAIMS ANY, TERM, CONDITION, REPRESENTATION, WARRANTY, OR GUARANTEE, AND WILL HAVE NO LIABILITY, IN CONNECTION WITH ANY USE OF THE PRODUCTS AND THE DOCUMENTATION IN SUCH SITUATIONS. CUSTOMER ACKNOWLEDGES THAT SENSEON DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SENSEON IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SENSEON IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE PRODUCTS THAT ARISE FROM THIRD PARTY SERVICES OR CUSTOMER DATA.
8. INDEMNITIES.
8.1 SenseOn Indemnity. Subject to clause 8.3 and the limitations set forth in clause 9, SenseOn will defend the Customer from and against any and all third party lawsuits to the extent alleging that the Products directly infringe or misappropriate the Intellectual Property Rights of such third party, and SenseOn will indemnify and hold the Customer harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction specifically arising out of such claim, or agreed to in a monetary settlement of such claim. SenseOn will have no obligation under this clause 8.1 or otherwise for claims arising from or relating to: (a) the Customer’s or any of the Customer user’s (including any Authorized User’s) use of the Products other than as permitted under this Agreement; (b) the combination of the Products with any of the Customer’s or third party products, services, hardware, data, content, or business process(s); or (c) the modification of the Products by any party other than SenseOn or SenseOn’s agents. THE FOREGOING IS SENSEON’S SOLE AND EXCLUSIVE OBLIGATION FOR THE THIRD-PARTY CLAIMS DESCRIBED IN THIS CLAUSE.
8.2 Customer Indemnity. Subject to clause 8.3, the Customer will defend SenseOn from and against any and all third party lawsuits: (a) alleging that the Customer Data infringes or misappropriates any Intellectual Property Rights or violates privacy rights; (b) arising out of or relating to a breach of clause 2.4 by the Customer or any Authorized Users or any of the Customer’s users (even if unauthorized); or (c) arising out of or relating to any claim described in clause 8.1(a) or (b), and the Customer will indemnify and hold SenseOn harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim.
8.3 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defence and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim. The indemnified party may participate in the defence of the claim, at the indemnified party’s sole expense (not subject to reimbursement).
8.4 Duty to Mitigate. Nothing in this clause 8 shall restrict or limit the indemnified party’s general obligation at law to mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under the indemnity provisions in this clause 8.
9. LIMITATION OF LIABILITY.
NEITHER SENSEON NOR ITS LICENSORS OR SUPPLIERS WILL BE LIABLE FOR (A) ANY COST OF COVER OR ANALOGOUS COSTS RELATED TO THE PROCUREMENT OF REPLACEMENT SERVICES OR PRODUCTS; OR (B) ANY LOSS OF USE, LOST DATA, FAILURE OF THIRD PARTY SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE LIABILITY OF SENSEON (INCLUDING ITS LICENSOR AND SUPPLIERS, TO THE EXTENT, IF ANY, LIABLE HEREUNDER) FOR ANY CLAIMS UNDER THIS AGREEMENT IN NO EVENT EXCEED THE CHARGES PAID BY CUSTOMER TO SENSEON FOR THE SERVICE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT WILL SURVIVE ANY FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY LIMITED REMEDY CONTAINED HEREIN. SUCH DIRECT DAMAGES WILL BE THE FULL EXTENT OF MONETARY LIABILITY OF SENSEON AND, IF APPLICABLE, ITS LICENSORS AND SUPPLIERS, UNDER THIS AGREEMENT, REGARDLESS OF THE FORM IN WHICH ANY SUCH LEGAL OR EQUITABLE CLAIM OR ACTION MAY BE ASSERTED AGAINST SENSEON AND WILL CONSTITUTE CUSTOMER'S SOLE MONETARY REMEDY. CUSTOMER ACKNOWLEDGES AND AGREES THAT IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE SENSEON’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE, FRAUD OR FRAUDULENT MISREPRESENTATION, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH LAW.
10. GENERAL.
10.1 Audit. The Customer acknowledges and agrees that (a) the Software include records reflecting and tracking the number, login accounts, and access logs of Authorized Users; (b) such records will be accessible and open at all times to SenseOn or its designee for inspection for the purposes of ensuring the Customer’s compliance with the terms and conditions of this Agreement.
10.2 Force Majeure. In no event will a party be liable to the other party, for any delay or failure to perform in breach of any of the terms of this Agreement to the extent that such breach results from a Force Majeure Event. If the period of delay or non-performance continues for 14 days, the party not affected may terminate this Agreement by giving 14 days' written notice to the affected party.
10.3 No third-party rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement) whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
10.4 Assignment. SenseOn may assign, transfer or sub-contract its rights and obligations under this Agreement to another organisation, but this will not affect the Customer’s rights or SenseOn’s obligations under this Agreement. The Customer may only transfer its rights or obligations under this Agreement to another person if SenseOn agrees in writing.
10.5 Governing Law & Jurisdiction. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter.
10.6 Compliance with Laws. Each party agrees to comply with all applicable laws, regulations, and ordinances in the performance of their obligations under this Agreement. This includes, but is not limited to, data protection and privacy laws, intellectual property laws, export control regulations, anti-bribery and anti-corruption laws, and employment laws. Failure to comply with this provision shall constitute a material breach of this Agreement.
10.7 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement, or the activities contemplated hereunder. SenseOn is not bound by any terms or conditions between the Customer and any third party.
10.8 Severability. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement will continue in effect.
10.9 Segmentation. The purchase of the Products or other service offerings, programs, or products are all separate offers and separate from any other order. The Customer understands that the Customer may purchase the Products or other service offerings, programs, or products independently of any other order. The Customer’s obligation to pay under any order is not contingent on performance of any other service offerings or delivery of programs or products.
10.10 Communication. SenseOn may update the terms of this Agreement at any time on notice to the Customer. The Customer’s continued use of the Products following the deemed receipt and service of the notice under this clause shall constitute the Customer’s acceptance to the terms of this Agreement, as varied. If the Customer does not wish to accept the terms of the Agreement (as varied) the Customer must immediately stop using and accessing the Products on the deemed receipt and service of the notice. If SenseOn needs to contact the Customer, it will do so by email or by pre-paid post to the address provided in accordance with the Schedule or registration for the Products. SenseOn’s email address is nicholas.brodie@senseon.io. A notice delivered by hand or email shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
10.11 Modification & Waiver. No modification or amendment of any provision of this Agreement will be effective unless agreed by both parties’ duly authorized representatives in writing, and no waiver of any provision of this Agreement will be effective unless in writing and signed by a duly authorized representative of the waiving party. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, will operate as a waiver of any such right, power or remedy.
10.12 Remedies. Except where this Agreement specifies a sole remedy, the parties’ rights and remedies hereunder are cumulative. The Customer acknowledges that the Products contain SenseOn’s valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to SenseOn for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy. Each party acknowledges and agrees that it must make reasonable efforts to mitigate to the fullest extent possible any loss for which it is entitled to seek recovery hereunder.
10.13 Export Compliance. The Customer acknowledges that the Products may be subject to U.S. and foreign export and import restrictions. The Customer will not and will not allow any export or re-export of any part of the Products, or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations. The Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Products are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
10.14 Non-Solicitation. A party shall not, without the prior written consent of the other party, at any time during the Subscription Term or until the expiry of 12 months after the date of termination of this agreement, solicit or entice away from that party or employ or attempt to employ any person who is, or has been, engaged as a senior or highly -skilled employee of that party with whom it has dealt in relation to this Agreement or the Products.
10.5 Entire Agreement & Construction. This Agreement, any Schedules and the DPA constitute the entire agreement between the Customer and SenseOn with respect to the Products and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between the Customer and SenseOn. The headings contained in this Agreement are for purposes of convenience only and will not affect the meaning or interpretation of this Agreement. For the purposes of this Agreement, “including” will mean “including without limitation”.