End-user License Agreement (EULA)
Rev B, 2024-07-13
THIS IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND SENSATIVE AB THAT GOVERNS CUSTOMER’S ACCESS AND USE OF COMPANY PRODUCT YGGIO. BY ACCESSING AND/OR USING THE PRODUCTS, CUSTOMER IS AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THIS AGREEMENT DOES NOT APPLY TO THIRD PARTY PRODUCTS SOLD SEPARATELY WHICH SHALL BE SUBJECT TO THE TERMS OF THE THIRD PARTY PROVIDER.
1 DEFINITIONS
The terms in capital letters which are used in this Agreement shall have the meaning assigned to them below or in any other part of this Agreement.
Affiliate(s) means, with respect to any entity, any other entity that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such entity.
Agreement means the End User Agreement and any other documents incorporated by reference, including an Order.
Applicable Law means any and all provisions including but not limited to ordinances, laws, zone rules, regulations, rules, standards, decrees and directives of any Governmental Authority applicable to or enforceable by either Party and which are in force, or that may be issued by any Governmental Authority.
Authorized Reseller means Company’s authorized resellers and distributors.
Authorized User means Customer’s employees, agents, contractors, consultants, partners, customers or other third parties permitted under the applicable Product specific terms, and who have agreed in writing to be bound by terms at least as protective of Company as those in this Agreement. Authorized User specifically excludes a third party that deploys, operates, and manages the Software in an environment owned or controlled by such third party on Customer’s behalf.
Business Day means a day which is not a Saturday, a Sunday, or an official holiday in Sweden on which the bank branches are required or permitted to be closed.
Claims means all claims, requests, petitions, demands, actions, orders and other rights of a Party arising at any time whether before or after Date of Signing, and Claim means any one of them or the relevant one of them, as the context requires.
Cloud Services means software-as-a-service offerings made available via a remote network, inclusive of any applicable on-premises and edge solutions.
Company means Sensative AB, Sensative Inc, or its Affiliate, that delivers the Products pursuant to an Order.
Confidential Information means (i) any information marked confidential and obtained directly or indirectly by one Party from the other Party, or (ii) any information which the other Party should reasonably understand to be confidential. For the avoidance of doubt and to the extent shared under this Agreement, any source code and protocols underlying the SENSATIVE Technology, and any know-how and trade secrets shall always be considered as Confidential Information.
Consulting Services means installation, configuration, training, customer development, network management or other professional services performed by Company pursuant to or in connection with an Order.
Contact means a Customer’s contact person who interfaces with Company’s Maintenance personnel.
Control means ownership, directly or indirectly, of more than 50% of the voting rights on the general shareholder’s meetings and/or board of directors, or the power to influence or direct the management or policies of a company.
Customer means the legal entity or individual that places one or more Orders for Products from Company or an Authorized Reseller.
Customer Register Information means (i) any data uploaded to a Cloud Service for storage or data in Customer’s computing environment to which Company is provided access in order to perform Cloud Services or (ii) disclosed by Customer to Company for the purpose of receiving Maintenance and/or Consulting Services. Customer Register Information may be confidential in nature and is subject to the standard of care set forth in Section 7.
Damages means all losses, liabilities, damages, demands, claims, judgments, debts and liabilities, petitions, expenses, interest (including interest and corrections arising from judgment), penalties, reasonable attorneys' fees, legal costs and other costs incurred in connection with an attempt to avoid or diminish any of the foregoing or an enforcement of the right of indemnification under this Agreement.
Device means physical, or virtual, unit that is connected to the SENSATIVE and Yggio ecosystem.
Documentation means material provided with a Product, as updated by Company from time to time, describing how to make use of that Product.
Edge means computing infrastructure that close to the sources of data such as in a building to provide faster and more reliable automation, reducing bandwidth usage, and enhancing data security through localized processing.
Education Services means training services performed or delivered by Company.
Error means a material failure of the Software, Cloud Services, or Hardware to conform to its functional specifications described in the Documentation that is reported by Customer to and replicable by Company.
Extraordinary Corporate Event means a corporate transaction which results in Customer divesting business operations and related assets to another or new entity, or acquiring, being acquired by, merged, or otherwise combined with another entity or into another entity's legal or corporate structure (including an acquisition of all or substantially all of the assets of another entity) which, prior to the corporate transaction, was not part of the Customer or its legal or corporate structure.
Fees means all fees and/or payments stated in an Order applicable to the Products.
Governmental Authority means, to the extent it has jurisdiction in respect of the relevant matter, any judicial, legislative, executive or regulatory authority of US or in Sweden or any other jurisdiction, including of the European Union.
Hardware means edge computers, sensors or other physical devices offered as Products.
Intellectual Property Rights means any and all intellectual property rights, whether registered or unregistered, which may exist or be created under the laws of any jurisdiction, including any copyright rights, database rights, neighbouring rights, trademark rights, service mark rights, rights to a business name, domain names, model rights, design rights, design patent rights; any patent rights, utility model rights, topography rights, mask work rights, plant variety rights, know-how, inventions, discoveries, ideas, trade secrets, secret formulae's, processes and other proprietary knowledge and information; any rights to claim priority, divisionals, continuations, continuations-in-part, re-examinations, renewals, re-issues, extensions and supplementary protection certificates for any of the of the rights referred to any of the paragraphs above; any form of protection of a similar nature or having equivalent effect anywhere in the world to any of the rights referred to in any of the paragraphs above; and any right or application to acquire any right referred to in any of the paragraphs above.
Maintenance means Company’s provision of technical support services and Updates, which are provided pursuant to the Business Unit Terms associated with the Product purchased in an Order.
Materials means any tangible or intangible information, design, specification, instruction, projectware or data (and any modifications, adaptations, derivative works or enhancements) provided by Company during the performance of Consulting Services which incorporates, reinforces or is used to apply Company’s configuration or implementation methodologies, processes and know-how to Customer’s use of the Software, excluding Customer Register Information.
Number of Units means, for each Order, the license entitlement under the applicable Product specific terms for each Product, and for multiple Orders, collectively, the cumulative entitlement to each.
On-prem means software that is installed and runs on the premises of the Customer using the software. On-premises solutions are managed, maintained, and operated by the Customer's own IT staff or personnel and are housed within the physical location(s) owned or controlled by the Customer.
Order means a document or combination of documents memorializing Customer's purchase of Products (including an order form, quote, Purchase Order, statement of work, on-line order, or other form of an ordering document) submitted by Customer to (i) Company, (ii) a Company authorized reseller, and/or (iii) through Company Product websites.
Product means Software, Cloud Services, Hardware, Maintenance, Consulting Services, and Education Services
Purchase Order means a document issued by Customer to Company confirming Customer’s contractual commitment to purchase the Products that corresponds with and specifically references Company’s order document or quote number.
Register Information is the data and information collected by sensors, actuators, other systems and similar, including contextual data ('meta data'), customer content, customer automation rules and customer AI models.
SENSATIVE Technology means the technology developed by or on behalf of SENSATIVE or its Affiliates or acquired by SENSATIVE or its Affiliates.
Software means a Company proprietary or licensed and embedded third-party program and/or Open Source Software program in object code form which is licensed hereunder including Documentation and any subsequent Updates provided under Maintenance.
Subscription means the non-cancellable license to use the Software or Cloud Service stated in an Order and identified as Subscription, that includes the right to receive Maintenance during the Term.
Person means any individual, corporation, entity, limited liability partnership, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government.
Recipient Party has the meaning given to it in Section 12 of this Agreement.
Representative means any officer, employee, legal advisor, financial advisor, accountant, subcontractor or other agent, of the Party concerned; Tax Authority means any taxing or other authority competent to impose any liability in respect of taxation or responsible for the administration and/or collection of tax or enforcement of any law in relation to Taxation;
Termmeans the duration for which the Customer is entitled to use the Products as stated in an Order, including renewal terms if any.
Trademarks has the meaning given to it in Section 8 of this Agreement.
Updates means any corrections, bug fixes, features or functions added to the Software or Cloud Services if and when made generally available by Company under Maintenance.
2 PRODUCT TERMS
2.1 Software license. Unless otherwise stated in the Agreement or in the Order, Company grants Customer a limited, non-transferable, non-sublicensable, non-exclusive, revocable, worldwide license to use the Software during the Term (if applicable) solely for internal business purposes in accordance with the Business Unit Terms, an Order, and Documentation.
2.2 Public Cloud Service. Unless otherwise specified in the Agreement or Order, Company grants Customer a limited, non-transferable, non-sublicenseable, non-exclusive, revocable, worldwide license to access and use the Software operated on Company's Public Cloud Server during the Term. This license is granted solely for Customer's internal business purposes and must be used in accordance with the Company's Terms, Order, and Documentation.
2.3 Private Cloud Service. If agreed and specifically stated in the Agreement or in the Order, Company grants Customer a limited, non-transferable, non-sublicenseable, non-exclusive, revocable, worldwide license to access and use the Software operated on Number of Units Private Cloud Servers for Customer during the Term. This license is granted solely for Customer's internal business purposes and must be used in accordance with the Company's Terms, Order, and Documentation.
2.4 On-premises license. If agreed upon and specifically stated in the Agreement or Order, Company grants Customer a limited, non-transferable, non-sublicenseable, non-exclusive, revocable, worldwide license to install, run, access, and maintain the Software on Number of Units of Customer's premises during the Term. This license is granted solely for Customer's internal business purposes and must be used in accordance with the Company's Terms, Order, and Documentation.
2.5 Edge Software license and Hardware. If agreed and specifically stated in the Agreement or in the Order, Company grants Customer a limited, non-transferable, non-sublicenseable, non-exclusive, revocable, worldwide license to access and use the Software operated on Number of Units of Company provided Edge Hardware during the Term. This license is granted solely for Customer's internal business purposes and must be used in accordance with the Company's Terms, Order, and Documentation.
2.6 Consulting services. Consulting services can be provided. https://sensative.com/contact/
2.7 Maintenance. Maintenance. Maintenance is provided at https://sensative.com/resource-center/
2.8 Education Services and Courseware. Unless otherwise stated in the Agreement or in the Order, Company grants Customer a limited, non-transferable, non-sublicensable, non-exclusive, worldwide license to use Education Services and/or Courseware in accordance with the Company Terms and Documentation.
2.9 Limitations on use. Except to the extent permitted by applicable law, Customer shall not (i) make more copies of the Software than required for use (except for a reasonable number of copies for archival purposes) or use any unlicensed versions of the Products; (ii) use any Products that are not listed in an order even if such unlicensed Software is made available to Customer as part of Company’s general delivery mechanisms; (iii) allow anyone other than Authorized Users to install, run, access, or use the Products; (iv) sublicense, distribute or pledge the Software or any of the rights granted in the Agreement; (v) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to Products; (vi) use or access any embedded or bundled component of Products on a stand-alone basis where such embedded or bundled component is provided to Customer for the sole purpose of enabling the functionality of such Product; (vii) use third party software in conjunction with a Product except where provided in Documentation and subject to the same use rights that it has to the Products; (viii) use any third party software in conjunction with any Products, unless Customer ensures that such use does not cause the Product to become subject to any third party license applicable to such third party software or require the public disclosure or distribution of any Product or the licensing of any Product or Materials or the purpose of making derivative works; (ix) market, offer to sell, and/or resell Products; and (x) if the Customer is a Company competitor, use Products for competitive benchmarking or analysis, unless permitted under applicable law.
3 ORDERS & DELIVERY
3.1 Orders. Customer shall order Products by issuing an Order to Company. The ordering process may specify Orders be submitted to Authorized Resellers or directly to Company. All Orders, including renewals, are subject to acceptance by Company at its discretion.
3.2 Delivery. Company shall deliver the Software, Cloud services, and Courseware electronically upon Customer’s submission of a Purchase order to Company. Customer’s acceptance of a Product is deemed to occur on Company’s initial delivery of the Product to Customer. Company shall ship Hardware (or other tangible product components, if any) Ex Works Company’s shipping location (incoterms 2020), and title shall pass to Customer upon delivery by Company to the shipping location.
4 FINANCIAL TERMS
4.1 Payment terms. Customer is responsible for all Fees and Taxes on Orders. License Fees and Hardware shall be paid by the Customer at the time of Order, unless otherwise agreed. Other Fees will be invoiced upon completion and paid by the Customer within thirty (30) days from the date of the invoice, unless otherwise agreed. All purchases are final, with no right to a refund or set-off, except as expressly provided in this Agreement. Company may charge Customer an additional 1.5% per month (or such lower amount as required by applicable law) for all Fees that are not paid on time. Company reserves the right to suspend or terminate delivery of any Product, or any portion thereof, for non-payment of Fees.
4.2 Multi-year subscriptions. If customer purchases a multi-year Subscription for any Product, or a multi-year renewal for any Product, the purchase is for the full value stated in the Order and is non-cancellable during the Term stated in the Order.
4.3 Renewal fees. Company may increase any other recurring Fees upon written notice 60 days prior to the end of the current Term stated in the Order.
4.4 Taxes. Fees stated in an Order are exclusive of all applicable transactional taxes on Products and Services (including but not limited to withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), and tariffs and/or duties) imposed by any government entity or collecting agency based on the Products (Taxes). Customer shall (i) pay Company such applicable Taxes (excluding Company’s income taxes) listed on the relevant invoice or (ii) withhold all applicable taxes according to the local rules, both of which may be in addition to Fees due.
5 INTELLECTUAL PROPERTY
5.1 Company proprietary rights. Subject to section 5.3, Company and its Affiliates own, or have license rights to, all Intellectual Property Rights in Software, Cloud services, Materials, Documentation, and all derivatives thereof (collectively Protected Materials) and Company trademarks (Company Marks), which are protected by applicable patent, copyright, trademark and trade secret laws. Customer must duplicate unaltered copies of all proprietary notices incorporated in or affixed to any Protected Materials. Except as expressly stated in the Agreement, Customer receives no other rights to use any of Company’s Protected Materials or Company Marks. Except for the limited license use rights expressly granted in the Agreement, Customer has no right, title or interest in or to the Protected Materials, Products, or Company Marks or any Intellectual Property Rights related thereto. In no event may Customer alter or delete any proprietary notices on Protected Materials.
5.2 Customer proprietary rights. Customer Register Information and Personal Data is and remains the property of Customer, except for a limited, non-exclusive, worldwide license to Company to provide any services or otherwise fulfill its obligations under this agreement. Additionally, Company retains the right to use Customer Register Information to improve its products and services, provided that such use complies with applicable data protection laws and regulations.
5.3 Open Source Software. Products include Open Source Software that is governed by the open source license(s) indicated as documented in the Product Software. Open Source Software means third party software distributed by Company under an open source licensing model (e.g., MIT license, Apache license, BSD license, the GNU General Public License, or a license either approved by, or similar to those approved by the Open Source Initiative).
6 CONFIDENTIALITY
6.1 Non-disclosure. Neither party shall disclose Confidential Information to any third party (other than an Affiliate or to an Authorized Reseller) without the disclosing party’s prior consent. Confidential Information may only be disclosed to recipients that need to know such information, and on the condition that the recipient is subject to a written agreement to protect information with terms as protective as this Agreement. Confidential Information remains the sole property of the disclosing party; except for rights explicitly granted in the Agreement, the receiving party does not acquire any rights to such Confidential Information.
6.2 Exclusions. The duty to protect Confidential Information does not apply to information that is shown to be: (i) available to the public other than by a breach of a confidentiality obligation; (ii) rightfully received from a third party not in breach of a confidentiality obligation; (iii) independently developed by one party without use of the Confidential Information of the other; (iv) known to the recipient at the time of disclosure (other than under a separate confidentiality obligation); (v) produced in compliance with applicable law or court order, provided the other party is given reasonable advance notice of the obligation to produce Confidential Information (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
6.3 Remedies. Except as prohibited by local law, each party shall indemnify the other for any damages (including reasonable expenses) the other may sustain resulting from a breach of this section. Money damages may not be a sufficient remedy for a breach of confidentiality. If either party breaches the confidentiality obligations, the non-breaching party may seek injunctive or other equitable relief without the necessity of posting a bond even if otherwise normally required. Such injunctive or equitable relief is in addition to all other rights and remedies available at law or in equity.
7 SECURITY AND PRIVACY
7.1 Software Security. Company develops and delivers Products, and provides Cloud Services, Maintenance, or Consulting Services, in accordance with the Information Security Policy and the Development and Quality Process which can be provided on request.
7.2 Data Security. For Cloud Services, Maintenance, or Consulting services that require Company to process Personal Data, Company (as defined in the DPA) shall (i) implement and maintain the administrative, physical, and technical security controls as set forth in the Security Exhibit, (ii) process Personal Data on Customer’s behalf as set forth in the Company Data Processing Addendum at Data Processing Addendum. (DPA), which is incorporated by reference into the Agreement. Customer shall provide any notices, obtain any consents, or otherwise establish the legal basis necessary for Company to access and process Personal Data as specified in this Agreement.
8 TERM AND TERMINATION
8.1 Term. This Agreement remains in effect until terminated. The Term for any Product starts on the Term start date stated in an Order and continues as indicated on the Order. FOLLOWING THE END OF THE INITIAL TERM, THE TERM WILL AUTOMATICALLY RENEW (SUBJECT TO ANY FEE INCREASES STATED IN SECTION 4) CONTINUOUSLY FOR THE SAME LENGTH AS THE INITIAL TERM UNLESS EITHER PARTY GIVES WRITTEN NOTICE PRIOR TO THE END OF THE INITIAL OR ANY RENEWAL TERM OF ITS INTENTION TO TERMINATE. Customer's failure to provide required notice of nonrenewal constitutes an Order for the renewal. Either party may terminate an Order for Consulting Services, upon 15 days prior written notice by Customer or 30 days prior written notice by Company.
8.2 Termination for cause. Either party may terminate this Agreement and/or any applicable order if the other party breaches any of its material obligations in the Agreement and fails to cure such breach within thirty (30) days of receipt of written notice from the non-breaching party. Either party may immediately terminate the Agreement if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. Company may immediately terminate the Agreement if the Customer materially breaches sections 2, 5 or 13.
8.3 Effect of termination. Upon termination of an Order, (i) Company will discontinue Customer’s User Accounts, (ii) Customer will discontinue all access and use of On-prem and Edge products, and (iii) subject to Company’s written request, Customer shall provide Company with a certification signed by a Customer representative with authority to bind Customer that Customer has de-installed and destroyed all Units of the Products deployed prior to termination. Neither party shall be liable for any damages resulting from termination of the Agreement or an Order, including without limitation unavailability of Customer Register Information or Data arising therefrom; provided, however, termination shall not affect any claim arising prior to the effective termination date. Company shall have the right to invoice Customer and Customer shall pay for any use of the Cloud Service past the date of termination. It is the Customer's responsibility to ensure that all Customer Register Information and Personal Data is retrieved and saved in another location prior to termination of an Order. Termination of this Agreement or any Order does not (i) relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement or (ii) limit either party from pursuing other remedies available to it, including injunctive relief.
8.4 Survival. The provisions of Sections 1 (Definitions), 2.9 (Limitations on Use), 5 (Intellectual Property), 8.3 (Effect of Termination), 9 (Warranties and Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 13 (Export Restriction and Compliance with Laws), 15 (Miscellaneous) survive any termination of the Agreement. The provisions of Section 6 (Confidentiality) survive any termination of the Agreement for three (3) years, except for trade secrets which shall remain confidential for so long as they remain trade secrets.
9 WARRANTIES AND DISCLAIMER
To the extent permitted by law, the following warranties apply:
9.1 Software Warranty. Company warrants that for a period of ninety (90) days from initial delivery of Software, the Software, as updated and used in accordance with the Documentation, will operate in all material respects in conformity with the functional specifications in the Documentation.
9.2 Cloud Services Warranty. Company warrants that during the Term of a Cloud Service, the Cloud Service, when used in accordance with the Documentation, will operate in all material respects with the Documentation.
9.3 Hardware Warranty. Company warrants that for a period of one (1) year from delivery of Hardware, Hardware will be free from defects in material and workmanship in normal use, but does not cover any of the following: (i) improper installation, maintenance, adjustment, repair or modification by Customer or a third party; (ii) misuse, neglect, or any other cause other than ordinary use, including without limitation, accidents; (iii) improper environment, excessive or inadequate heating or air conditioning, electrical power failures, surges, water damage or other irregularities; (iv) third party software or software drivers; or (v) damage during shipment.
9.4 Other services warranties. Company warrants that Maintenance, Consulting Services, and Educational Services will be delivered in a professional manner but does not warrant that every question or problem raised will be resolved, or resolved in a certain amount of time.
9.5 Customer Register Information warranties. Customer warrants that (i) it has the right to transmit Customer Register Information as part of the Cloud Services or any other service that Company may provide in connection with delivering Products to Customer and (ii) its use of Cloud Services will not cause the transmission of spam, unsolicited messages, or infringing, offensive, threatening, or otherwise unlawful Register Information that violates applicable law or the rights of third parties.
9.6 Warranty Remedy. If the Software or Cloud Services does not perform as warranted during the applicable warranty period, Company shall use commercially reasonable efforts to correct Errors. Customer shall promptly notify Company in writing of its claim within the applicable warranty period. Provided that such claim is determined by Company to be Company’s responsibility, as Customer’s exclusive remedy for any Software or Cloud Service warranty claim, Company shall, within 30 days of its receipt of customer’s written notice, (i) correct such Error; (ii) provide Customer with a plan reasonably acceptable to Customer for correcting the Error, or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from Company, then Company may terminate the license for the affected Product and issue Customer a prorated refund of the Fees paid for the affected Product. The preceding warranty cure constitutes Company’s entire liability and Customer’s exclusive remedy for Company’s breach of the warranties stated in this section 9. Customer’s exclusive remedy under for the Company breach of the Maintenance, Consulting Services, and Educational Services warranty is re-performance of the services. If the Hardware does not perform as warranted during the applicable warranty period, Company’s entire liability and Customer’s exclusive remedy (which is subject to Customer returning the Hardware to Company or its Authorized Reseller and confirming that such return is finalized) will be, at the sole option of Company and subject to applicable law, to replace the Hardware or to refund the purchase price paid for the Hardware, and to terminate any Software licenses associated with the Hardware.
9.7 WARRANTY DISCLAIMER. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE ABOVE LIMITED WARRANTIES, COMPANY AND ITS SUPPLIERS MAKE AND CUSTOMER RECEIVES NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; AND COMPANY AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, LACK OF VIRUSES, BUGS, OR ERRORS, AND ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. PRODUCTS, ARE NOT INTENDED FOR ANY USE WHERE FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR ITS SELECTION TO ACHIEVE ITS INTENDED RESULTS, AND FOR ITS USE, AND RESULTS OBTAINED THEREFROM.
9.8 Company shall not be responsible for any claimed breach of warranty arising out if (i) modifications to products made by Customer or any party other than Company, (ii) Customer’s failure to use any updates or other corrected versions of Products made available by Company, (iii) Errors caused by customizations, (iv) any use of Products by Customer that is outside the operating procedures stated in the Documentation, (v) adherence to Customer’s instructions by Company during the delivery of Consulting Services.
10 INDEMNIFICATION
10.1 IP Indemnification. Company shall defend Customer against any third-party Infringement Claim. Further, Company will indemnify Customer from and against damages, costs, and fees reasonably incurred (including reasonable attorneys' fees) that are attributable exclusively to such claim or action and which are assessed against Customer in a final judgment or settlement. Company’s obligation to defend, settle, or indemnify Customer are subject to: (i) Customer promptly notifies Company in writing of an Infringement Claim such that Company is not prejudiced by any delay of such notification; (ii) Company has sole control over the defence and any settlement of any Infringement Claim; and (iii) Customer provides reasonable assistance in the defence of same. For the purposes of these terms, Infringement Claim means any claim, suit or proceeding brought against Customer based on an allegation that the Product(s), excluding any Open Source Software not embedded in a Product, as delivered by Company, infringes any patent or copyright or violates any trade secret rights of any third party.
10.2 Remedies. If Customer’s use of any of the Products is, or in Company’s opinion is likely to be, enjoined as a result of an Infringement Claim, Company shall, at its sole option and expense, either (i) procure for Customer the right to continue to use the Products as contemplated in an Order, or (ii) replace or modify the Services to make their use non-infringing without degradation in performance or a material reduction in functionality. If options (i) and (ii) are not reasonably available, Company may, in its sole discretion and upon written notice to Customer, terminate the agreement and refund to Customer any prepaid, but unused, fees on the Products.
10.3 Exclusions. Company assumes no liability, and shall have no liability, for (i) any damages based on Customer’s access to and/or use of the Products that occurs after Company provides Customer with notice to cease using a Product due to an Infringement Claim; (ii) an Infringement Claim based on any modification of the products by Customer or at its direction; (iii) an Infringement Claim based on Customer’s combination of the Products with third party programs, services, data, hardware, or other materials; or (iv) any trademark or copyright infringement involving any marking or branding not applied by Company or involving any marking or branding applied at customer’s request. THE FOREGOING STATES COMPANY’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.
11 LIMITATION OF LIABILITY
EXCEPT FOR (A) A BREACH BY CUSTOMER OF SECTION 2, (B) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING TRADE SECRETS, (C) DAMAGES FOR BODILY INJURY, DEATH, DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, AND (D) TO THE EXTENT PERMITTED BY APPLICABLE LAW (THE EXCLUDED MATTERS), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSSES, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATING TO: (I) LOSS OF DATA; (II) LOSS OF INCOME; (III) LOSS OF OPPORTUNITY; (IV) LOST PROFITS; AND (V) UNAVAILABILITY (EXCLUDING CREDITS DUE FOR ANY SERVICE LEVEL AGREEMENT OBLIGATION) OR NON-PERFORMANCE OF ANY OR ALL OF THE SERVICES, IN EACH CASE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUDED MATTERS, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAYABLE FOR THE APPLICABLE PRODUCT(S) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY, OR IN THE CASE OF MAINTENANCE, CONSULTING SERVICES OR EDUCATION SERVICES, THE AMOUNTS PAID FOR THE APPLICABLE SERVICE. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER. FURTHERMORE, COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES OR LEGAL CONSEQUENCES ARISING FROM CUSTOMER’S USE OF THE PRODUCTS IN VIOLATION OF APPLICABLE LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO GDPR, EU DATA ACT, EU AI ACT, AND EQUIVALENT U.S. LAWS. IT IS THE CUSTOMER’S RESPONSIBILITY TO ENSURE THAT THEIR USE OF THE PRODUCTS COMPLIES WITH ALL SUCH LAWS AND REGULATIONS.
12 EXPORT RESTRICTION AND COMPLIANCE WITH LAWS.
Customer acknowledges that the Products are subject to U.S., EU, and international export controls and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including, but not limited to, the U.S. Export Administration Regulations (EAR), regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the EU General Data Protection Regulation (GDPR), the EU Data Act, the EU AI Act, and equivalent U.S. laws such as the California Consumer Privacy Act (CCPA), Health Insurance Portability and Accountability Act (HIPAA), Children's Online Privacy Protection Act (COPPA), and relevant guidelines such as the NIST AI Risk Management Framework. Customer specifically shall not, directly or indirectly, export, re-export, transfer, import, sell, lease, supply, or allow access to or use of the Products in or for embargoed or sanctioned countries/regions, by sanctioned or restricted persons, or for prohibited end-uses under applicable U.S. or EU law without authorization from the appropriate governmental authorities. Furthermore, it is the Customer’s responsibility to use the Products in a manner that does not violate any applicable privacy, data protection, cloud, and AI laws, including but not limited to GDPR, the EU Data Act, the EU AI Act, and their U.S. equivalents such as CCPA, HIPAA, COPPA, and relevant NIST guidelines. Customer must ensure that its use of the Products, including the processing of any Personal Data, complies with these laws and regulations. Company acts as a data processor on behalf of Customer and will process Personal Data only in accordance with Customer’s instructions and the applicable Data Processing Addendum (DPA).
13 RESEARCH AND TRIAL USAGE.
13.1 Research and Trial usage. If a Product offering is provided for academic research, trial, demonstration, or evaluation use (Trial) under an Order, Customer may use the Product for the Term stated in an Order for internal research, demonstration, test, or evaluation purposes only. Company PROVIDES TRIALS AS IS AND WITHOUT WARRANTY, MAINTENANCE OR INDEMNITIES. ANY CUSTOMER DATA PROVIDED BY CUSTOMER TO COMPANY IN CONNECTION WITH A TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME PRODUCT AS THOSE COVERED BY THE TRIAL OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. These terms supersede any conflicting terms and conditions in this Agreement. Trial versions may be suspended or terminated at any time by Company in its sole discretion with or without notice to Customer. Notwithstanding anything to the contrary in this Agreement, Products subject to Trial license are offered as Public Cloud Service unless otherwise defined in the Agreement.
14 MISCELLANEOUS
14.1 Assignment. Customer may not assign its rights or delegate its duties under this agreement either in whole or in part without Company’s prior written consent. Any attempted assignment in violation of the foregoing shall be void. This Agreement will bind and inure to the benefit of each party’s successors or permitted assigns.
14.2 Extraordinary Corporate Event. If Customer or its successors or assigns enters into an Extraordinary Corporate Event after the Order effective date, those users, divisions, or entities that were added to or divested from Customer’s organization as a result of the Extraordinary Corporate Event are not authorized to use the Products until those users, divisions, or entities are added to this Agreement by way of a written amendment signed by duly authorized officers of the Company and Customer, or in the case of a divesture, the divested entity.
14.3 Audit. During the term of any Order and for a period of one year following termination of an Order, Company and/or its independent auditors, at Company's expense, may, upon 10 days’ notice and at reasonable times, audit Customer compliance with this Agreement, and report any results to Company and its licensors. Customer shall, at no cost to Company, (i) provide any assistance reasonably requested by Company or its designee in conducting any such audit, including installing and operating audit software and (ii) make requested systems, personnel, records, and information available to Company or its designee to facilitate the timely completion of such audit. Customer’s failure to comply with the provisions of this section will constitute a material breach of this agreement. Customer shall promptly cure any noncompliance, and if the audit reveals customer’s noncompliance exceeds 5% of its entitlement, Customer shall reimburse Company for the reasonable costs and expenses of the audit (including but not limited to reasonable attorneys’ fees); provided, however, that the obligations under this section do not constitute a waiver of Company’s termination rights and do not affect Company’s right to payment for Products related to usage in excess of the Number of Units.
14.4 Notices. All notices required under this Agreement must be in writing and delivered to the address last designated on the account for Customer, and the Company contracting entity as specified in the Agreement or Order. Notice is deemed given (i) upon personal delivery; (ii) if delivered by air courier or email, upon confirmation of receipt; or (iii) five (5) days after deposit in the mail. A copy of all legal notices from Customer to Company must also be sent to legal@sensative.com, or other email addresses provided by Company. Company may provide Customer with non-legal notices through www.sensative.com, https://docs.ygg.io/ and/or through in-product messaging or dashboards, which shall likewise be deemed effective immediately.
14.5 Entire Agreement; Order of Precedence. The Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and supersedes all prior and contemporaneous oral and written agreements. Any conflict between these terms and any supplementary terms is subject to the following order of precedence: (1) an Order, (2) the Company Terms, and (3) this End User Agreement. No terms or conditions contained in any Customer Purchase Order or other Document submitted by Customer shall in any way add to or otherwise modify the Agreement or any Company license program terms under which an Order is submitted. The Company Terms, Service Descriptions, Maintenance Terms, Security Exhibit, or DPA may be updated by Company from time to time without notice (but will be identified by the last updated date). Customer’s continued access to and use of the Products constitutes acceptance of the then-current terms.
14.6 Relationship of the parties. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the parties. Company may subcontract responsibilities under this Agreement but remains responsible for its breach of this Agreement by the acts or omissions of Company or its subcontractors. Company’s affiliates may fulfill obligations under an Order and such activity is not considered to be a subcontracted responsibility.
14.7 Resellers. Company Authorized Resellers and Distributors do not have the right to make modifications to this agreement or to make any additional representations, commitments, or warranties binding on Company.
14.8 Waiver. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on any party unless agreed to in writing by such party. Company failure to enforce any term of this Agreement will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative.
14.9 Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform its non-monetary obligations hereunder to the extent due to unforeseen circumstances or causes beyond its reasonable control, including earthquake, fire, flood, sanctions, embargoes, strikes, lockouts or other labour disturbances, civil unrest, pandemics, failure, unavailability or delay of suppliers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the internet or third party internet connections or infrastructure, power failures, acts of civil and military authorities and severe weather (Force Majeure). The affected party will give the other party prompt written notice (when possible) of the failure to perform due to Force Majeure and use its reasonable efforts to limit the resulting delay in its performance.
14.10 Governing law and venue. This Agreement and any non-contractual obligation arising out of or in connection with it shall exclusively be governed by, and construed in accordance with, the Laws of Sweden.
14.11 Disputes. All disputes arising out of or in connection with this Agreement, including disputes concerning their existence, their validity and any non-contractual obligation, will be finally and exclusively resolved by arbitration in Sweden.
14.12 Severability. In the event that any term or provision of this Agreement is unenforceable, then the remainder of this Agreement shall not be affected, impaired, or invalidated, and the other terms and provisions of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
14.13 Third party beneficiary. Except as expressly stated, the Agreement is for the benefit of the parties and their successors and permitted assigns and does not confer any rights or benefits on any third party.
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