SensorLogic Inc.
TERMS OF PURCHASE
Last Updated September 1, 2021
THESE TERMS OF PURCHASE (“AGREEMENT”) WILL GOVERN YOUR PURCHASE OF SENSORLOGIC HARDWARE AND SENSORLOGIC SERVICES (BOTH DEFINED BELOW) AND IS ENTERED INTO BETWEEN SENSORLOGIC, INC. (“SensorLogic”) AND THE BUSINESS YOU REPRESENT (“CUSTOMER”). THIS AGREEMENT TAKES EFFECT WHEN YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU MAY SHOW YOUR AGREEMENT TO AND ACCEPTANCE OF THESE TERMS BY EITHER EXECUTING AN ORDER FORM OR STATEMENT OF WORK REFERENCING THIS AGREEMENT, CLICKING THE CHECK BOX LINKING TO THIS AGREEMENT, OR OTHERWISE ACCESSING OR USING THE SERVICES. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY AND ARE AUTHORIZED TO BIND THE CUSTOMER TO THIS AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN ANY CUSTOMER ORDER FORM, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND SENSORLOGIC WILL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. NEITHER SENSORLOGIC’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY WILL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS.
1. DEFINITIONS
1.1 “SensorLogic Hardware” means any device ordered by Customer from SensorLogic hereunder.
1.2 “SensorLogic Products” means, collectively, the SensorLogic Hardware and the SensorLogic Services.
1.3 “SensorLogic Services” means those subscriptions to SensorLogic software maintenance and ongoing support services ordered by Customer from SensorLogic hereunder.
2. SALES
2.1 Sale of SensorLogic Hardware. Subject to the terms and conditions of this Agreement, SensorLogic hereby sells to Customer the ordered SensorLogic Hardware. The SensorLogic Hardware is sold to Customer solely for use by Customer in connection with SensorLogic Services.
2.2 Sale of SensorLogic Services. SensorLogic Services are sold on an annual or other specified period (each, a “Service Term”). The initial Service Term starts when Customer purchases the SensorLogic Services. If Customer and SensorLogic have signed an order for SensorLogic Services, the Service Term will renew according to the terms of such order. If Customer has purchased the SensorLogic Services through a different method, the Service Term will automatically renew for successive periods of the same length as the initial Service Term.
2.3 Acceptance. SensorLogic reserves the right to accept or reject orders, in whole or in part, in its sole discretion, or to cancel any order previously accepted if SensorLogic determines that Customer is in default, Customer is in a location where SensorLogic cannot provide SensorLogic Products, or otherwise.
2.4 Fulfillment of Orders and Invoicing. SensorLogic will use commercially reasonable efforts to fill orders by Customer promptly upon acceptance by SensorLogic. SensorLogic retains the right to fulfill orders in part, based upon a SensorLogic-approved schedule. Any Customer requests for partial fulfillment are subject to approval by SensorLogic. SensorLogic will not be liable for any failure to deliver SensorLogic Products by any particular date or if the specified SensorLogic Product has not been commercially released.
2.5 Shipment Terms. All SensorLogic Hardware delivered pursuant to this Agreement will be suitably packed for shipment in SensorLogic’s standard shipping cartons, marked for shipment, and delivered to Customer or its carrier agent EXW (Incoterms 2010) from SensorLogic’s facility, at which time title and risk of loss will pass to Customer. SensorLogic will select the carrier, unless the carrier chosen by SensorLogic will not fulfill the delivery, in which case Customer’s choice of substitute carrier is subject to SensorLogic approval. Customer will pay all freight, insurance, and other shipping expenses, as well as any special packing
3. PAYMENTS
3.1 Prices and Fees. The price of the SensorLogic Hardware and the fees for the SensorLogic Services are set forth on the signed order form or on the order confirmation page prior to finalizing the purchase. Customer agrees to pay SensorLogic the amounts indicated for the SensorLogic Hardware and SensorLogic Services Customer selects. The price of the SensorLogic Hardware will be charged to the Payment Method (defined below) upon checkout, and the cost of freight, insurance, and other shipping expenses, as well as any special packing expense, will be charged to the Payment Method upon shipment. The fees for the SensorLogic Services will be charged to the Payment Method upon checkout and will cover fees for the initial Service Term. If the Service Term renews, the fees for any renewal Service Terms will be the then-current fee applicable to the SensorLogic Services and will be charged to the payment method upon renewal, unless otherwise agreed in writing between Customer and SensorLogic. Customer authorizes SensorLogic to charge the Payment Method for the prices and fees described above. Customer may upgrade, downgrade or cancel the selected SensorLogic Service plan at any time. Plan downgrades or cancellations will take effect only at the end of the then-current Service Term and must be made at least 3 business days prior to the next renewal of the Service Term (if any) in order to avoid billing of the next renewal Service Term’s fees at the prior rate. Customer will not receive a refund or credit for the remainder of the Service Term in the event of any downgrade or cancellation during a Service Term. SensorLogic Service upgrades will take effect immediately and Customer will be charged a prorated fee for the remainder of the then-current term based on the difference in price between the current plan and the upgraded plan. Stated fees do not include any related taxes, duties and similar charges (including without limitation sales and use taxes, duties or other governmental taxes or fees), all of which are Customer’s responsibility and will be charged to Customer’s Payment Method in addition to the fees.
3.2 Payment Method. SensorLogic may, from time to time, offer various payment methods, including without limitation payment by wire transfer, ACH, credit card, by debit card, by certain mobile payment providers or by using PayPal. Customer authorizes SensorLogic to charge Customer for SensorLogic Products through the payment method selected by Customer when purchasing the SensorLogic Products (the “Payment Method”) and Customer agrees to make payment using such Payment Method(s). SensorLogic may, from time to time, receive and use updated payment method information provided by Customer or that financial institutions or payment processors may provide to SensorLogic to update information related to the Payment Method(s), such as updated expiration dates or account numbers. Certain Payment Methods, such as credit cards and debit cards, may involve agreements between Customer and the financial institution, credit card issuer or other provider of the chosen Payment Methods (the “Payment Method Provider”). If SensorLogic does not receive payment from the Payment Method Provider, Customer agrees to directly pay all amounts due upon demand from SensorLogic. Customer’s non-termination or continued use of the SensorLogic Services reaffirms that SensorLogic is authorized to charge the Payment Method for each renewal Service Term.
3.3 Current Information Required. Customer agrees to provide current, complete and accurate billing information and agrees to promptly update all such information (such as changes in billing address, credit card number or credit card expiration date) as necessary for the processing of all payments that are due to SensorLogic. Customer agrees to promptly notify SensorLogic if the selected Payment Method is canceled (for example, due to loss or theft) or if Customer becomes aware of a potential breach of security related to any Payment Method. If Customer fails to provide any of the foregoing information, Customer acknowledges that its current Payment Method may continue to be charged for SensorLogic Products and it remains responsible for all such charges.
3.4 Payment Matters. If the Payment Method fails or Customer’s account is past due, SensorLogic reserves the right to withhold shipment of SensorLogic Hardware and to either suspend or terminate Customer’s use of the SensorLogic Services. Customer agrees to submit any disputes regarding any charge to its account in writing to SensorLogic within 60 days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. Customer agrees to reimburse SensorLogic for all collection costs. SensorLogic reserves the right to charge Customer interest at a rate of 1.5% per month on any overdue amounts, or the maximum rate permitted by applicable law, whichever is lower. All fees and charges are nonrefundable and there are no refunds or credits for shipped SensorLogic Hardware or any partially used Service Terms except (a) as expressly set forth in this Agreement or a separate written agreement between SensorLogic and Customer; (b) as otherwise required by applicable law; or (c) at SensorLogic’s sole and absolute discretion. All prices for SensorLogic Products are subject to change without notice.
4. TERMS OF SERVICE
4.1 Service Term. Service Term will start, renew and end according to the terms outlined above. The Service Term is also subject to termination according to the SensorLogic Terms of Service.
4.2 Terms of Service. The SensorLogic Services and SensorLogic Hardware are further subject to the terms of the SensorLogic Terms of Service, which is incorporated into and made a part of this Agreement. SensorLogic Hardware is sold with the warranty set forth in the SensorLogic Terms of Service. Sections 8, 9, and 10.1-10.13 of the SensorLogic Terms of Service apply to this Agreement as if set forth herein.
4.3 Entire Agreement. This Agreement, together with the SensorLogic Terms of Service is the final and complete expression of the agreement between these parties regarding the SensorLogic Products. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of SensorLogic has any authority to bind SensorLogic with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
4.4 Updates to this Agreement. From time to time, SensorLogic may change, modify, add, or remove portions of this Agreement (each an “Update”), and reserves the right to do so in its sole discretion. If SensorLogic Updates this Agreement, it will make the Updated Agreement available, and the Updated Agreement will indicate the date of the latest revision. Customer is encouraged to review this Agreement periodically for changes. In the event that Updates to this Agreement materially alter Customer’s rights or obligations hereunder, SensorLogic will make reasonable efforts to notify Customer of the Updates. For example, SensorLogic may send a message to Customer’s email address that is currently associated with its SensorLogic account or generate a pop-up or similar notification when Customer accesses its SensorLogic account for the first time after such material changes are made. All Updated Agreements automatically take effect 30 days after they are posted, except that (i) disputes between Customer and SensorLogic will be governed by the version of this Agreement that was in effect on the date the dispute arose and (ii) unless specifically agreed otherwise, if Customer does not agree with any changes to this Agreement, Customer may terminate this Agreement as set forth above. Customer’s continued access to or use of the Services after an Updated Agreement has become effective indicates that Customer has read, understood and agreed to the current version of this Agreement.
SensorLogic Inc.
TERMS OF SERVICE
**Last Updated September 1, 2021
THESE TERMS OF SERVICE (“AGREEMENT”) WILL GOVERN YOUR USE OF SENSORLOGIC SERVICES AND USE OF SOFTWARE EMBEDDED IN SENSORLOGIC HARDWARE AND MOBILE APPS (EACH DEFINED BELOW) AND IS ENTERED INTO BETWEEN **SENSORLOGIC INC. (“SENSORLOGIC”) AND THE BUSINESS YOU REPRESENT (“CUSTOMER”). THIS AGREEMENT TAKES EFFECT WHEN YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU MAY SHOW YOUR AGREEMENT TO AND ACCEPTANCE OF THESE TERMS BY EITHER EXECUTING AN ORDER FORM OR STATEMENT OF WORK REFERENCING THIS AGREEMENT, CLICKING THE CHECK BOX LINKING TO THIS AGREEMENT, OR OTHERWISE ACCESSING OR USING THE SERVICES. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY AND ARE AUTHORIZED TO BIND THE CUSTOMER TO THIS AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN ANY CUSTOMER ORDER FORM, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND SensorLogic WILL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. NEITHER SENSORLOGIC’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY WILL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS.
1. DEFINITIONS
**1.1 “SensorLogic Hardware” means any device sold by SensorLogic, either directly to Customer or through an authorized reseller.
1.2 “SensorLogic Products” means, collectively, the SensorLogic Hardware and the SensorLogic Services.
1.3 “SensorLogic Services” means those subscriptions to SensorLogic services ordered by Customer from SensorLogic or through an authorized reseller.
1.4 “Embedded Software” means software and firmware running on the SensorLogic Hardware.
1.5 “Service Term**” means the term of Customer’s SensorLogic Service purchased from SensorLogic under the SensorLogic Terms of Purchase or purchased through a SensorLogic reseller.
1.6 “Mobile App” means any iOS or Android App downloaded from the respective app store for use with a SensorLogic Product.
2. SensorLogic Service
**2.1 Services. Subject to the terms and conditions of this Agreement, solely during the paid Service Term, SensorLogic grants to Customer a limited, non-exclusive, non-transferable, revocable right during the Service Term to access and use the SensorLogic dashboard (if applicable) solely in connection with Customer’s internal business operations and to use the Embedded Software and Mobile App solely in connection with Customer’s authorized use of the SensorLogic Hardware.
2.2 API Access. If applicable, subject to the terms and conditions of this Agreement, SensorLogic grants to Customer a limited, non-exclusive, non-transferable, revocable right during the Service Term to access and use the SensorLogic API materials in accordance with the related documentation provided by SensorLogic, and this Agreement, solely for the purposes of developing and operating an implementation of the SensorLogic API that permits Customer to access Customer Data and import it into other software applications. Customer must only use the SensorLogic API materials and documentation in accordance with applicable law.
2.3 Service Level Agreement. SensorLogic will use commercially reasonable efforts to provide Customer with the services during the Service Term and in accordance with the service levels set forth in the SensorLogic Service Level Agreement.
2.4 Support Policy. SensorLogic will use commercially reasonable efforts to provide Customer with the services during the Service Term and in accordance with the support levels set forth in the SensorLogic Support Policy.
**3. TERM AND TERMINATION
**3.1 Term. The term of this Agreement will start at the beginning of the Service Term and expire at the end of the Service Term, unless terminated early as provided below.
3.2 Termination for Cause. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 30 days prior written notice if the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period.
3.3 No Liability for Termination. Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of this Agreement, neither party will be liable to the other because of such termination for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of SensorLogic or Customer. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
3.4 Effects of Termination. In addition, the following provisions will survive any expiration or termination of this Agreement: Sections 3.3, 3.4, 4, 5.3, and 6 through 10. The termination or expiration of this Agreement will not relieve Customer of the obligation to pay any amounts that are due to SensorLogic under this Agreement.
**4. PROPRIETARY RIGHTS AND NOTICES
**4.1 Proprietary Rights. SensorLogic and its licensors own all right, title, and interest, including all intellectual property rights, in and to the SensorLogic Products. Customer will not act to jeopardize, limit, or interfere in any manner with SensorLogic’s ownership of any rights with respect to the SensorLogic Products. Customer will have only those rights in or to the SensorLogic Products and documentation granted to it pursuant to this Agreement.
4.2 General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, create derivative works of, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code or underlying ideas or algorithms of any portion of any SensorLogic Products; (b) remove software from equipment on which it is preloaded; (c) modify or attempt to service or repair the SensorLogic Hardware or use the SensorLogic Hardware for any purpose other than in connection with SensorLogic Services; nor (d) circumvent or disable any technological features or measures in the SensorLogic Products, including security features. Customer shall take reasonable measures to prevent the SensorLogic Products from being stolen or accessed without authorization and to prevent third parties from carrying out the restricted activities set forth in this Section 4.2.
4.3 Customer Data. Customer will own all right, title, and interest in and to any data collected by SensorLogic Hardware used by Customer, including any such data processed in connection with SensorLogic Services (“Customer Data”). Customer hereby grants to SensorLogic a nonexclusive, worldwide, royalty-free, fully paid right and license to the Customer Data for the Service Term of any SensorLogic Services to the extent necessary for SensorLogic to provide the services in connection with the SensorLogic Services. Customer hereby grants to SensorLogic a nonexclusive, worldwide, perpetual, royalty-free, fully paid right and license to the Customer Data (i) for SensorLogic’s internal use only for research and development purposes and to improve SensorLogic’s products and services, and (ii) in aggregate, anonymized format, so long as SensorLogic does not disclose Customer as the source of the data.
4.4 Proprietary Rights Notices. Customer and its employees and agents will not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the SensorLogic Products or related documentation delivered by SensorLogic.
4.5 Third Party Copyright Notices. The SensorLogic Products include third-party code licensed to SensorLogic for use and redistribution under open-source licenses (“Third Party Software”). The terms of certain open-source licenses may be applicable to Customer’s use of the SensorLogic Products, as set forth in the applicable open-source license. A list of disclosures and disclaimers in connection with SensorLogic’s incorporation of certain open-source licensed software into the SensorLogic Products is provided upon request.
**5. WARRANTY; WARRANTY DISCLAIMER
**5.1 Warranty. SensorLogic warrants that the SensorLogic Hardware shall be and shall remain free from defects in design, material and workmanship for a period ending five (5) years from the date of shipment if Customer maintains an active subscription to the SensorLogic Services during this period (the “Warranty Period”). If Customer’s subscription to the SensorLogic Services terminates earlier, then the Warranty Period will also terminate as of the same date. This warranty does not cover defects or malfunction caused by neglect, misuse, abuse, vandalism or accident; installation or use in an improper environment; or failure to follow installation, maintenance or operating instructions. Also, this warranty will not apply to damage caused by unauthorized alteration, modification or repair of the SensorLogic Hardware. This warranty applies only to the original purchaser and is non-transferable.
5.2 Warranty Remedies. If during the Warranty Period any SensorLogic Hardware fails, is nonoperational, or is otherwise found faulty due to a breach of this warranty, Customer may submit a request to SensorLogic for replacement SensorLogic Hardware, which must be received before the end of the Warranty Period. SensorLogic will evaluate any such request, and if SensorLogic determines in its sole discretion that the SensorLogic Hardware is faulty due to a breach of this warranty, SensorLogic will replace the SensorLogic Hardware. Customer will return any faulty SensorLogic Hardware to SensorLogic upon SensorLogic’s request, but in no event later than 30 days after receipt of replacement SensorLogic Hardware. Replacement of the SensorLogic Hardware is Customer’s sole remedy, and SensorLogic’s sole liability, for any breach of this warranty.
5.3 Warranty Disclaimer. OTHER THAN AS SET FORTH IN THIS AGREEMENT, SENSORLOGIC MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SENSORLOGIC EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. SENSORLOGIC DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SENSORLOGIC PRODUCTS OR AGAINST INFRINGEMENT. SENSORLOGIC DOES NOT WARRANT THAT THE SENSORLOGIC PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE SENSORLOGIC PRODUCTS WILL BE SECURE OR UNINTERRUPTED. SENSORLOGIC EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED ON A CUSTOMER’S USE OF THE SENSORLOGIC PRODUCTS. SENSORLOGIC PRODUCTS ARE NOT DESIGNED, OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE SENSORLOGIC PRODUCTS COULD CREATE A SITUATION WHERE SUBSTANTIAL PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH MAY OCCUR. SENSORLOGIC RECOMMENDS AGAINST, AND DISCLAIMS ANY LIABILITY FOR, USE OF THE SENSORLOGIC PRODUCTS IN ANY SUCH MANNER.
**6. INFRINGEMENT INDEMNIFICATION
**6.1 Defense of Claims. SensorLogic will, at its option and expense, defend Customer and its officers, employees, directors, agents, and representatives (“Customer Indemnified Parties”) from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against a Customer Indemnified Party alleging that Customer’s use of the SensorLogic Product (excluding Third Party Software) infringes or misappropriates any United States patent, copyright, trade secret, trademark, or other intellectual property right if: (a) the Customer Indemnified Party gives SensorLogic prompt written notice of the Claim; (b) SensorLogic has full and complete control over the defense and settlement of such Claim; (c) the Customer Indemnified Parties provide assistance, at SensorLogic’s expense as specified in Section 6.2, in connection with the defense and settlement of such Claim as SensorLogic may reasonably request; and (d) the Customer Indemnified Parties comply with any settlement or court order made in connection with such Claim (e.g., relating to the future use, sale, or distribution of any infringing SensorLogic Products). The Customer Indemnified Parties will not defend or settle any such Claim without SensorLogic’s prior written consent. The applicable Customer Indemnified Party shall have the right to participate in the defense of such Claim at its own expense and with counsel of its own choosing, but SensorLogic will have sole control over the defense and settlement of the Claim.
6.2 Indemnification. SensorLogic will indemnify the Customer Indemnified Parties against and pay (a) all damages, costs, and attorneys’ fees finally awarded against a Customer Indemnified Party in any Claim under Section 6.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such Claim, including assistance provided under Section 6.1(c) (other than attorneys’ fees and costs incurred without SensorLogic’s consent after SensorLogic has accepted defense of such claim); and (c) if any Claim arising under Section 6.1 is settled, all amounts to be paid to any third party in settlement of any such Claim (as agreed to by SensorLogic).
6.3 Mitigation. If Customer’s or their respective agents’ use, sale, or distribution of a SensorLogic Product is, or in SensorLogic’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a Claim under Section 6.1, then SensorLogic will either: (a) procure the continuing right of Customer to use the SensorLogic Product; (b) replace or modify the SensorLogic Product in a functionally equivalent manner while maintaining the same form, fit, and function so that it no longer infringes; or if, despite its commercially reasonable efforts, SensorLogic is unable to do either (a) or (b), SensorLogic will (c) terminate Customer’s rights to the SensorLogic Products under this Agreement and Customer will return all SensorLogic Hardware for a prorated refund by SensorLogic of prepaid fees covering the remainder of the term of this Agreement.
6.4 Exceptions. SensorLogic will have no obligation under this Section 6 for any alleged infringement or misappropriation to the extent that it arises out of or is based upon (a) use of a SensorLogic Product in combination with other products, including other SensorLogic Products, if such alleged infringement or misappropriation would not have arisen but for such combination; (b) a SensorLogic Product that is provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of a SensorLogic Product for purposes not intended; (c) use of SensorLogic Products after Customer has been notified of any termination of its right to use the SensorLogic Products pursuant to Section 6.3(c); (e) Customer’s failure to use a SensorLogic Product in accordance with instructions provided by SensorLogic, if the alleged infringement or misappropriation would not have occurred but for such failure; or (f) any modification of a SensorLogic Product not made or authorized in writing by SensorLogic where such alleged infringement or misappropriation would not have occurred absent such modification. Customer is responsible for any costs or damages that result from these actions.
6.5 Exclusive Remedy. This Section 6 states SensorLogic’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by a SensorLogic Product.
**7. CUSTOMER INDEMNIFICATION
**7.1 Defense of Claims. Customer will defend SensorLogic and its affiliates and their employees, directors, agents, and representatives (“SensorLogic Indemnified Parties”) from any actual or threatened third party claim arising out of or based upon Customer’s performance or failure to perform under this Agreement, its negligence or willful misconduct, or its breach of this Agreement. The SensorLogic Indemnified Parties will: (a) give Customer prompt written notice of the claim; (b) grant Customer full and complete control over the defense and settlement of the claim; and (c) assist Customer with the defense and settlement of the claim as Customer may reasonably request.
7.2 Indemnification. Customer will indemnify each of the SensorLogic Indemnified Parties against (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such claim); and, (c) if any proceeding arising under Section 7.1 is settled, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such claims.
**8. CONFIDENTIAL INFORMATION
**8.1 Confidential Information. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, distributors, prospects, or other affairs), that is disclosed to a party during the term of this Agreement. The SensorLogic Products and related information will be the Confidential Information of SensorLogic. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
8.2 Nondisclosure. During and after the term of this Agreement, each party will: (a) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 8; and (b) protect the other party’s Confidential Information from unauthorized disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
8.3 Confidentiality of Agreement. Neither party to this Agreement will disclose the terms of this Agreement to any third party without the consent of the other party, except as required by securities or other applicable laws. Notwithstanding the above provisions, each party may disclose the terms of this Agreement (a) in connection with the requirements of a public offering or securities filing; (b) in confidence, to accountants, banks, and financing sources and their advisors; (c) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
8.4 Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
8.5 Existing Obligations. The obligations in this Section 8 are in addition to, and supplement, each party’s obligations of confidentiality under any nondisclosure or other agreement between the parties.
**9. LIMITATION OF LIABILITY
**9.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SensorLogic WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, IncIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, IncLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SensorLogic IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SENSORLOGIC’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER (OR PAID BY THE APPLICABLE RESELLER FOR CUSTOMER’S PURCHASES) TO SensorLogic UNDER THIS AGREEMENT.
9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN SensorLogic’S PRICING AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
**10. GENERAL
**10.1 Marketing. Customer agrees SensorLogic may publicly use Customer’s logo and name to identify Customer as a customer of SensorLogic.
10.2 Export Restrictions. Customer will not resell or otherwise distribute the SensorLogic Products in any foreign territory where applicable laws would not provide the protections to SensorLogic and the SensorLogic Products intended under this Agreement, or where there is a significant risk that the SensorLogic Products would fall into the public domain. Customer will not directly or indirectly import, export, or re-export the SensorLogic Products outside the United States without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory.
10.3 Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party.
10.4 Assignability. Customer may not assign its right, duties, or obligations under this Agreement without SensorLogic’s prior written consent. As used in this Section 10.4, “assign” includes undergoing any direct or indirect change in control, whether via a merger, acquisition, or sale of all or substantially all assets of Customer. If consent is given, this Agreement will bind Customer’s successors and assigns. Any attempt by Customer to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.
10.6 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Order Form and with the appropriate postage affixed. SensorLogic may also be contacted at the email address listed in the Order Form. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
10.7 Force Majeure. SensorLogic will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond SensorLogic’s reasonable control, so long as SensorLogic uses commercially reasonable efforts to avoid or remove such causes of non-performance.
10.9 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Montana, U.S.A without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
10.10 Arbitration. The parties agree to resolve all disputes arising under or in connection with this Agreement through binding arbitration. The arbitration will be held in Gallatin County, Montana, USA. If Customer is an entity incorporated or formed under the state or federal laws of the United States of America, the arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). If Customer is an entity incorporated or formed under the laws of a foreign jurisdiction, the arbitration will be conducted in accordance with the International Chamber of Commerce (“ICC”) Rules of Arbitration. If there is a dispute between the parties under this Agreement, the parties will use good faith efforts to agree upon and appoint one arbitrator no later than 20 days after the notice of arbitration is received from the other party. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA or ICC (as applicable) for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA or ICC will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator will conduct the arbitration in accordance with the applicable rules of the AAA or ICC (as applicable). The arbitrator will limit discovery as reasonably practicable to complete the arbitration as soon as practicable. The arbitrator’s decision will be final and binding on both parties. The costs and expenses of the arbitration will be shared equally by both parties. This Section 10.10 will not prohibit either party from seeking injunctive relief in a court of competent jurisdiction.
10.11 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
10.12 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any rights to Customer under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.
10.13 Interpretation. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
10.14 Entire Agreement. This Agreement, together with the SensorLogic Terms of Purchase (if applicable) is the final and complete expression of the agreement between these parties regarding the SensorLogic Products. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of SensorLogic has any authority to bind SensorLogic with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. If Customer acquired the SensorLogic Products from a SensorLogic reseller, then this Agreement is not exclusive of any rights Customer obtains under its agreement with the reseller; however, if there is any conflict between the provisions of this Agreement and the reseller agreement, then the provisions of this Agreement prevail, and if the reseller has granted Customer any rights that SensorLogic does not also directly grant to Customer in this Agreement, or that conflict with this Agreement, then Customer’s sole recourse with respect to such rights is against the reseller.
10.15 Updates to this Agreement. From time to time, SensorLogic may change, modify, add, or remove portions of this Agreement (each an “Update**”), and reserves the right to do so in its sole discretion. If SensorLogic Updates this Agreement, it will make the Updated Agreement available, and the Updated Agreement will indicate the date of the latest revision. Customer is encouraged to review this Agreement periodically for changes. In the event that Updates to this Agreement materially alter Customer’s rights or obligations hereunder, SensorLogic will make reasonable efforts to notify Customer of the Updates. For example, SensorLogic may send a message to Customer’s email address that is currently associated with its SensorLogic account or generate a pop-up or similar notification when Customer accesses its SensorLogic account for the first time after such material changes are made. All Updated Agreements automatically take effect 30 days after they are posted, except that (i) disputes between Customer and SensorLogic will be governed by the version of this Agreement that was in effect on the date the dispute arose and (ii) unless specifically agreed otherwise, if Customer does not agree with any changes to this Agreement, Customer may terminate this Agreement as set forth above. Customer’s continued access to or use of the Services after an Updated Agreement has become effective indicates that Customer has read, understood and agreed to the current version of this Agreement.
**SensorLogic Inc. **
**SERVICE LEVEL AGREEMENT **
Version 1.0 :: Updated September 1, 2021
SensorLogic Inc. (“SensorLogic”) will provide the Covered Services (as defined below) in accordance with the performance standards set forth in this Service Level Agreement (“SLA”). All capitalized terms used but not defined in this SLA will have the meanings given to them in the SensorLogic Master Service Agreement or the applicable Order Form.
**1. SERVICE LEVELS **
a. <span style="text-decoration:underline;">Definitions</span>. “**Covered Services**” means the Event Latency and API Uptime (each as set forth below) aspects of the SensorLogic services only. “**Monthly Service Fees**” means the fees payable by Customer for the SensorLogic Services for the applicable month, as set forth on the applicable Order Form. If the fees for the SensorLogic Services are not defined on a monthly basis, the Monthly Service Fees will be the total fees for the SensorLogic Services divided by the number of months for the term of the Services Services.
b. <span style="text-decoration:underline;">Service Levels</span>. SensorLogic will use commercially reasonable efforts to ensure that that the Covered Services will meet the service levels set forth in the table below (“**Service Levels**”).
| Service Level | Measurement | Credit | |||
|
Event Latency: 99% of new events will be available in the SensorLogic platform (including via the SensorLogic API) within 60
seconds of the event occurring. </td> |
Measured on a monthly basis, the “Monthly Latency
Percentage” will be calculated as follows: (total number of Latent Events for the given calendar month / total number of events for the given calendar month) * 100. “Latent Event” means an event where the following calculation results in a time difference of 61 seconds or greater: API posting timestamp - registered event timestamp. </td> |
If the Monthly Latency
Percentage is greater than 1%, Customer will be entitled to a credit equal to the Monthly Service Fees multiplied by the Monthly Latency Percentage. </td> </tr> | |||
| API Uptime: 99% uptime of the SensorLogic API. |
Measured on a monthly basis, the “Monthly API Downtime Percentage“ will be calculated as follows:
(total API Downtime in minutes for the given month / total number of minutes in the given month) * 100. </td> |
If the Monthly API Downtime Percentage is greater than 1%, Customer will be entitled to a credit equal to the Monthly Service Fees multiplied by the Monthly API Downtime
Percentage. </td> </tr> </table>
|