SERVICES TERMS AND CONDITIONS
These Terms and Conditions (together with the Quotation furnished to Client and any Statement of Work executed by both parties and referencing the Quotation (a “Statement of Work”), collectively, the “Agreement”) shall set forth the terms and conditions pursuant to which Sensuron, LLC, a Delaware limited liability company, with an office at 3101 Bee Caves Road, Suite 110, Austin, Texas 78746 (“Sensuron”) shall deliver certain services (the “Services”) and deliverables (the “Deliverables”), as applicable, to the Client as identified on such Quotation (“Client”).
In consideration of the mutual promises contained herein, the parties agree as follows:
Subject to the terms and conditions of this Agreement, Sensuron shall provide the Services and Deliverables identified on the Quotation, as may be supplemented by a Statement of Work.
2. PAYMENT FOR SERVICES, EQUIPMENT, SUPPLIES AND EXPENSES
2.1 Client shall pay the amounts specified on the Quotation for Services and Deliverables as specified on the Quotation, in each case as may be supplemented by a Statement of Work.
2.2 Sensuron shall be reimbursed by Client for all reasonable costs and expenses incurred by Sensuron in the performance of the Services and preparation of the Deliverables which are not specifically set forth on the Quotation (as may be supplemented by a Statement of Work), including, but not necessarily limited to, travel and lodging expenses, communication charges, equipment and supplies, costs of any Deliverable and other reasonable supplies.
2.3 Sensuron shall invoice client for Services and Deliverables as set forth on the Quotation and shall invoice Client on a monthly basis for any costs and expenses. Client shall pay the amounts specified in each invoice within thirty (30) days of the date of the invoice; provided, however, any amounts to be paid upon the execution of the Quotation shall be paid by the Client contemporaneously with the execution of the Quotation. The Quotation may be supplemented by a Statement of Work.Any invoice remaining unpaid for more than thirty (30) days from receipt shall accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law.
2.4 Client shall pay for all taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for Services, products or technology provided by Sensuron be subject to withholding tax by any government, Client shall reimburse Sensuron for such withholding tax. Client agrees to reimburse and hold Sensuron harmless from any deficiency (including penalties and interest) relating to taxes that are the responsibility of Client under this Section. Each party shall be responsible for taxes based on its own net income, employment taxes of its own employees, and for taxes on any property it owns or leases.
3. CLIENT RESPONSIBILITIES AND OBLIGATIONS
Client shall supply on-site Sensuron personnel with suitable knowledge, space, equipment, and resources that may be necessary or requested by Sensuron in connection with Sensuron’s performance of the Services. No interest or obligation shall be conferred upon Sensuron regarding Client’s property or the property of Client’s employees, agents, vendors, or other contractors, beyond the limited right to use such property in furtherance of this Agreement. All such property, regardless of its physical location or use, shall be deemed to be in the care, custody and control of Client. Client shall retain responsibility for its compliance with all applicable federal, state and local laws and regulations.
4. OWNERSHIP AND TREATMENT OF DELIVERABLES
“Deliverables” shall mean reports, documents, templates, studies, strategies, operating models, technical architectures, designs, software objects, software programs, source code, object code, specifications, documentation, abstracts and summaries thereof, tangible model(s) of the product (a “Prototype”) and other work product and materials which are originated and prepared for Client and delivered by Sensuron (either independently or in concert with Client or third parties) during the course of Sensuron’s performance under this Agreement. Client assumes full responsibility for, and in the event of loss or damage to the Deliverables, shall pay the replacement cost thereof, plus any shipping and handling charges. Client will not transfer, sell, assign, sublicense, pledge, or otherwise dispose of, encumber or suffer a lien or encumbrance upon or against the Deliverables. Client will provide for and only operate the Prototype within the space, power and environmental conditions required for, the proper operation of the Prototype. Title to all Deliverables will remain with Sensuron.
5. INTELLECTUAL PROPERTY
Client shall have a nontransferable, non-exclusive, paid-up right and license to use the Deliverables provided to Client by Sensuron during the course of the Services, subject to the terms and conditions of this Agreement and any restrictions on any third-party materials provided to Client. Client’s rights in the foregoing shall be for purposes of Client’s internal business only, and does not include any right or license in any proprietary technology of Sensuron or its licensors, which shall only be licensed pursuant to a separate license agreement. Aside from the express license set forth in this Section 5, all other intellectual property rights in the Deliverables remain the sole property of Sensuron. Without limiting the foregoing, Sensuron will retain exclusive ownership of all its know-how, concepts, techniques, methodologies, ideas, templates, software, hardware, systems, platforms, interfaces, utilities and tools that existed prior to the performance of the Services or the creation of the Deliverables, all updates, modifications, improvements, enhancements and derivative works of the same conceived, discovered, developed or reduced to practice, solely or in collaboration with others, during the course of performance of the Services or creation of the Deliverables, and in each case all related intellectual property rights.
6.1 Sensuron warrants that its Services will be performed in a good and workmanlike manner and makes no warranties with respect to any Deliverables.
6.2 THE PRECEDING SECTION 6.1 CONSTITUTES SENSURON’S ONLY EXPRESS WARRANTY CONCERNING THE SERVICES, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE WITH RESPECT TO THE SERVICES AND DELIVERABLES.
7.1 During the course of Sensuron performing Services for Client, each party may be given access to or receive information (in tangible or oral format) that relates to the other’s past, present, and future research, development, business activities, products, services, and technical knowledge, and is identified by the discloser as confidential (“Confidential Information”). In connection therewith, the following subsections shall apply:
(a) Confidential Information of the discloser may be used by the receiver only in connection with the Services;
(b) Each party agrees to protect the confidentiality of the Confidential Information of the other in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. Access to the Confidential Information shall be restricted to Sensuron and Client personnel (including such personnel employed by affiliated entities) engaged in a use permitted hereby;
(c) Confidential Information may not be copied or reproduced without the discloser’s prior written consent;
(d) All Confidential Information made available hereunder, including copies thereof, shall be returned or destroyed upon the first to occur of (1) completion of the Services or (2) request by the discloser, unless the receiver is otherwise allowed to retain such Confidential Information;
(e) Nothing in this Agreement shall prohibit or limit either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) (1) previously known to it without an obligation of confidence, (2) independently developed by or for it, (3) acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information, or (4) which is or becomes publicly available through no breach of this Agreement; and
(f) If either party receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information of the other party, it shall promptly notify the other of such receipt and tender to it the defense of such demand. The party receiving the subpoena shall thereafter be entitled to comply with such subpoena or other process to the extent permitted by law.
8. INDEPENDENT CONTRACTOR
In connection with this Agreement, each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the parties for any purpose.
9. LIMITATION OF LIABILITY
9.1 EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR TRADE SECRETS OF CLIENT, SENSURON’S SOLE LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) FOR ANY CLAIM IN ANY MANNER RELATED TO THIS AGREEMENT, SHALL BE THE PAYMENT OF DIRECT DAMAGES AND SUCH DAMAGES SHALL IN NO EVENT IN THE AGGREGATE EXCEED AN AMOUNT EQUAL TO THE FEES AND EXPENSES RECEIVED BY SENSURON HEREUNDER WITH RESPECT TO THE SERVICES AND DELIVERABLES. CLIENT’S EXCLUSIVE REMEDY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT SHALL BE FOR SENSURON, UPON RECEIPT OF WRITTEN NOTICE, TO USE COMMERCIALLY REASONABLE EFFORTS TO CURE THE BREACH AT ITS EXPENSE, OR FAILING THAT, THE RETURN OF FEES PAID TO SENSURON FOR THE WORK RELATED TO THE BREACH, NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9.2 EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS, MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR TRADE SECRETS OF SENSURON OR FAILURE TO PAT ANY AMOUNTS DUE HEREUNDER, CLIENT’S SOLE LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) FOR ANY CLAIM IN ANY MANNER RELATED TO THIS AGREEMENT, SHALL BE THE PAYMENT OF DIRECT DAMAGES AND SUCH DAMAGES SHALL IN NO EVENT IN THE AGGREGATE EXCEED AN AMOUNT EQUAL TO THE FEES AND EXPENSES PAID OR OWED HEREUNDER WITH RESPECT TO THE SERVICES AND DELIVERABLES.
9.3 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGE, LOSS OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR LOST SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE.
9.4 The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and the financial terms hereof reflect such allocations, and will apply notwithstanding the failure of essential purpose of any limited remedy herein.
Either party may at any time and without cause terminate this Agreement by giving thirty (30) days written notice of termination to the other party. Upon such termination, Client shall pay Sensuron for all Services rendered and expenses incurred by Sensuron prior to the date of termination, as determined in good faith by Sensuron. The terms of Sections 2-14 shall survive termination of this Agreement.
11. EXPORT RESTRICTIONS
Client shall not export, directly or indirectly, the Deliverables, or any technical data acquired from Sensuron pursuant to this Agreement, or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.
13. FORCE MAJEURE
Neither party shall be liable for any delays or failures in performance (other than payment obligations hereunder) due to circumstances beyond its reasonable control.
This Agreement, together with the Quotation and any Statements of Work, sets forth the entire understanding between the parties hereto with respect to the Services and the Deliverables, and supersedes all prior agreements, arrangements and communications, whether oral or written with respect thereto. Any purchase order or similar document other than the Quotation or Statement of Work issued by the Client shall be for its administrative purposes only and none of its terms and conditions shall be of any force or effect against Sensuron. Neither this Agreement, any Statement of Work nor the Quotation may be modified or amended except by the mutual written agreement of the parties. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party against which it is sought to be enforced. The delay or failure by either party to exercise or enforce any of its rights under this Agreement shall not constitute or be deemed a waiver of that party’s right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. This Agreement shall be governed by and construed in accordance with the laws of Texas, without giving effect to conflict of law rules. The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement and the performance of the parties contemplated herein, to the extent that such convention might otherwise be applicable.