1.     Definitions

1.1.   “SensiML Commercial Redistribution License” means the separate agreement to be negotiated between SensiML and Customer granting license to one or more SensiML Knowledge Packs should Customer choose to utilize the results of or integrate object code from the SensiML SaaS Platform into its own commercial products.

1.2.   “SensiML Enterprise Level Support Services” means support services provided for a fee by SensiML support and development staff above and beyond standard support terms provided with SensiML SaaS Platform service and may include onsite training, Enterprise Service Level Agreement response and resolution times, and other custom support options as may be defined in the Ordering Document.

1.3.   “SensiML Knowledge Pack” means the object code generated by the SensiML SaaS Platform as well as associated analytics, feature codes, segmentation codes, and pattern recognition configuration parameters and other interim results generated by the SensiML SaaS Platform for use in embedded devices for purposes of autonomous time series data analytics and pattern recognition within the embedded devices.

1.4.   “SensiML Professional Services” means custom engineering services as defined within a separate statement of work document for modifications or enhancements to the SensiML SaaS Platform and/or SensiML Software as desired by Customer.

1.5.   “SensiML SaaS Platform” means the cloud analytics services made available to and use of software hosted by SensiML Corporation to Customer.  Such service consists of access to SensiML programs, documentation, system administration system management, and system monitoring that SensiML provides for use of its analytics tools, as well as any other services provided by SensiML as defined in the Ordering Document (collectively, the “services”).

1.6.   “SensiML Software” means the software products owned or distributed by SensiML to which SensiML grants Customer access as part of the services.  Such software includes but is not limited to SensiML Analytics Studio, SensiML Data Capture Lab, SensiML Analytics Engine client software, SensiML Knowledge Pack, SensiML SaaS Platform, SensiML mobile applications, related components, application program interfaces, device drivers, software tools, associated media, printed materials, electronic documentation and any updates or releases thereto.

2.     Access and Use Rights Granted. Subject to the terms and conditions of this Agreement, during the applicable License Term, SensiML hereby grants to Customer a limited, nonexclusive, nontransferable, non-sublicensable revocable, worldwide license for Customer to access and use the SensiML SaaS Platform solely for Customer’s internal use and further limited to Customer’s evaluation purposes and ordinary product development efforts and in accordance with the applicable documentation. Subject to the same, Customer may provide access to the SensiML SaaS Platform to its and its affiliates’ employees, contractors, and other individual users to access and use the SensiML SaaS Platforms on its behalf and for its internal business purposes in compliance with this Agreement, provided Customer is responsible for all such users’ actions that violate the terms of this Agreement – any breach by any such user shall be treated as a breach by Customer.  Customer agrees that it does not acquire under this Agreement any license to use the SensiML SaaS Platform specified in the Ordering Document in excess of the scope and/or duration of the services as defined by this express grant of access and use rights stated in this Agreement. Customer further agrees that it does not acquire under this Agreement any license to incorporate any SensiML Knowledge Pack into Customer’s commercial products, terms for such license to be established under separate SensiML Commercial Redistribution License.  Upon the end of the agreement or the services thereunder, any and all of Customer’s right to access or use the SensiML SaaS Platform specified in the Ordering Document and the services shall terminate.

 

3.     Ownership and Use Restrictions. Customer retains all ownership and intellectual property rights in and to Customer’s data. SensiML or its licensors retain all ownership and intellectual property rights to the services and SensiML Software. SensiML retains all ownership and intellectual property rights to anything developed and delivered under the Agreement. Customer may not: (i) remove or modify any program markings or any notice of SensiML’s or its licensors’ proprietary rights; (ii) make the programs or materials resulting or derived from the services or SensiML Software available in any manner to any third party for use in the third party’s personal or business operations (unless such access is expressly permitted for the specific program license or materials from the services Customer have acquired); (iii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services or SensiML Software (the foregoing prohibition includes but is not limited to review of data structures, interim results provided for developer validation and/or testing purposes, or similar materials produced by the services or SensiML Software), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to SensiML; (iv) publish, display, loan, transfer, assign, sublicense, use, copy, distribute, sell or offer to sell the SensiML Software or associated documentation; (v) disclose results of any services or program benchmark tests or outputs without SensiML’s prior written consent; and (vi) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, SensiML Software or programs or materials available, to any third party other than, as expressly permitted under the terms of the Agreement. Except as expressly provided herein, no part of the services or SensiML Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and Customer agree to make every reasonable effort to prevent unauthorized third parties from accessing the services or SensiML Software.

 

4.     Payment for Services. Customer agrees to pay for all services ordered as set forth in the applicable Ordering Document.  All fees due under the Agreement are non-cancelable and the sums paid non-refundable. Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law that SensiML must pay based on the services Customer ordered, except for taxes based on SensiML’s income.  All fees shall be paid in U.S. dollars and are due within thirty (30) days of the invoice.

 

5.     License To Feedback And Modifications.  To ensure SensiML’s freedom to operate and to continue to develop the SensiML SaaS Platform licensed hereunder, Customer agrees to grant and does hereby grant to SensiML and its affiliates a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up and transferable license, with the right of sublicense, to and under any copyrights, trade secrets, patents and any other of Customer’s intellectual property rights, whether perfected or not, to publicly perform, publicly display, reproduce, use, make, have made, sell, offer for sale, distribute, import, create derivative works of and otherwise exploit any comments, suggestions, descriptions, ideas or any other feedback provided by or on behalf of Customer regarding the SensiML SaaS Platform and SensiML Software.

 

6.     Warranties and Limitations of Liability and Remedies

 

6.1.   SensiML SaaS Platform. SensiML represents and warrants to Customer that the SensiML SaaS Platform materially conforms to the specifications specified in the relevant documentation. Customer must notify SensiML of any warranty deficiencies within thirty (30) days from the provision or discovery of the deficient SensiML SaaS Platform. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF SENSIML FOR SENSIML’S BREACH OF THIS WARRANTY WILL BE FOR SENSIML, AT ITS OPTION, TO (I) REPAIR THE SENSIML SAAS PLATFORM OR SENSIML SOFTWARE COMPONENT OR (II) TERMINATE THE AGREEMENT AND REFUND ANY PREPAID, UNUSED SUBSCRIPTION FEES PAID TO SENSIML FOR THE UNUSED PERIOD OF ANY SUCH TERMINATED AGREEMENT TERM.  SENSIML DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT SENSIML WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT SENSIML DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SENSIML IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

6.2.   SensiML Professional Services and Enterprise Level Support Services.  Customer may optionally order SensiML professional services and/or enterprise level support services directly from SensiML. Such services shall be subject to the terms and conditions of this Agreement and mutually agreed-upon statement of work (if any). For ninety (90) days following the date of delivery of any professional service by SensiML to Customer, SensiML represents and warrants that such services shall be professional, workman-like and performed in a manner conforming to generally accepted industry standards and practices for similar services.

 

6.3.   LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF SENSIML FOR SENSIML’S BREACH OF THIS WARRANTY WILL BE FOR SENSIML, AT ITS OPTION, TO RE-PERFORM THE NON-CONFORMING SERVICES OR REFUND THE FEES PAID FOR SUCH NON-CONFORMING PROFESSIONAL SERVICES.  FURTHER, IN NO EVENT WILL SENSIML BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT THE USE OF SENSIMIL SERVICES OR SENSIML SOFTWARE, INCLUDING THE USE OF OR INABILITY TO USE THE SENSIML SOFTWARE, EVEN IF SENSIML HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SENSIML AND CUSTOMER AND SENSIML WOULD NOT BE ABLE TO PROVIDE THE SENSIML SERVICES OR SENSIML SOFTWARE WITHOUT SUCH LIMITATIONS.

 

6.4.   DISCLAIMER OF WARRANTIES. TO THE EXTENT NOT PROHIBITED BY LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION, THE SENSIML SAAS PLATFORM SERVICES ARE PROVIDED “AS IS,” AND SENSIML PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

 

7.     Customer Data. Customer agrees to allow SensiML and its affiliates to transmit, store, and use Customer data (the “Customer Data”) generated, collected, or transferred to and from SensiML SaaS Platform services and SensiML Software for purposes of providing data processing and development services to the Customer.  Such Customer Data will be processed and used in connection with SensiMLs Software and SensiML SaaS Platform and may be provided to employees and contractors acting on SensiML’s behalf for uses consistent with servicing and supporting Customer’s use of the software and services.  To the extent that (i) Customer data is input into or resides in the SensiML Software as part of this evaluation (the “Customer Data”) and (ii) the Customer Data contains personal data about any living individual (“Data”), SensiML will process that Data only as a Data Processor acting on behalf of Customer (as the Data Controller) and in accordance with the requirements of this Agreement. 

8.     Compliance with Privacy Laws; Purpose Limitation. Customer will at all times comply in full with the requirements of any applicable privacy and data protection laws (including where applicable, European Union Directives 95/46/EC and 2002/58/EC and any national implementation(s) of them) to which it is subject as a Data Controller (“Applicable Privacy Law(s)”). SensiML will process the Data in accordance with Customer's instructions under Applicable Privacy Law(s) and will not: (a) assume any responsibility for determining the purposes for which and the manner in which the Data is processed, or (b) process the Data for its own purposes.

9.     HIPAA and PHI Data. Customer understands and acknowledges that neither the SensiML SaaS Platform nor the SensiML Software are configured to receive and store personal health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”) and that SensiML is neither a “Covered Entity” nor a “Business Associate,” as those terms are defined in HIPAA.  As such, Customer agrees, not to (i) use the SensiML Software or SensiML SaaS Platform or (ii) provide access to or submit any PHI to SensiML when requesting technical and/or support services, in either case, in a manner which, directly or indirectly, submits, retains, stores or includes any PHI as part of the Customer Data. Customer agrees that SensiML may terminate this Agreement immediately, if Customer is found to be in violation of this Section.  To the fullest extent allowed by law, Customer agrees to defend, indemnify and hold SensiML harmless as to any claim against SensiML relating to Customer’s breach of this provision of the Agreement.

10.  Usage Data. In the course of providing Customer with the services within this Agreement and the SensiML Software, SensiML may collect, use, process and store diagnostic and usage related content from the computer, mobile phone or other devices the Customer uses to access the SensiML Software or SensiML SaaS Platform. This may include, but is not limited to, IP addresses and other information like internet service, location, the type of system and modules that are used and/or accessed (the “Usage Data”). Usage Data does not, however, include Customer Data. Customer agrees that SensiML may process Usage Data to create and compile anonymized, aggregated datasets and/or statistics about the SensiML Software and/or SensiML SaaS Platform services in order to: (a) maintain and improve the performance and integrity of SensiML software or services, (b) understand which SensiML products or services are most commonly deployed and preferred by customers and how customers interact with SensiML products or services, (c) identify the types of SensiML services that may require additional maintenance or support, and (d) comply with all regulatory, legislative and/or contractual requirements, provided in each case that such aggregated datasets and statistics will not enable Customer or any living individual to be identified.

11.  Remedies, Exclusions and Indemnification

 

11.1.      Remedies. If any claim brought against Customer and its directors, officers and employees by an unaffiliated third party alleging that Customer’s use of the SensiML SaaS Platform infringes or violates that third party’s intellectual property right(s)or in SensiML’s opinion such a claim is reasonably likely to occur, SensiML may at its expense and sole discretion: (i) procure the right to allow Customer to continue using the applicable SensiML SaaS Platform or SensiML Software, (ii) modify or replace the applicable SaaS Product to become non-infringing, or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license to the affected portion of applicable SaaS Product and refund a portion, as determined by SensiML in its sole and exclusive discretion, of the pre-paid, unused license fees paid by Customer corresponding to such SaaS Product.

 

11.2.      Exclusions. SensiML shall have no obligations under this Agreement if the claim is based upon or arises out of: (i) any modification to the applicable SensiML SaaS Platform or SensiML Software not made by or at the direction of SensiML, (ii) any use of SensiML SaaS Platform or SensiML Software in combination with third party equipment, products or systems, to the extent that such claim is based on such combination or use, (iii) Customer’s continued use of the allegedly infringing technology after being notified of the infringement claim, (iv) Customer’s failure to use updates made available by SensiML for its software or services (v) Customer’s failure to use the SensiML SaaS Platform or SensiML Software in accordance with the applicable documentation, and/or (vi) use of the SensiML SaaS Platform or SensiML Software outside the scope of the license granted under this Agreement. THIS SECTION 11 CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND SENSIML’S ENTIRE LIABILITY, WITH RESPECT TO INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

 

11.3.      Customer Indemnification. Customer shall at its cost and expense (i) defend or settle any claim brought against SensiML by an unaffiliated third party alleging that Customer Data infringes or violates a third party’s intellectual property or privacy right(s), and (ii) pay, indemnify and hold SensiML, its directors, officers, and employees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.

 

12.  Confidentiality and Non-Disclosure. The parties acknowledge that in the course of performing their obligations under this Agreement, each may receive confidential information (“Confidential Information”). Each party covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. Within five (5) days after a Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information; provided, however, that the Receiving Party shall be entitled to retain archival copies of the Confidential Information of the Disclosing Party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law.  Should separate Corporate Non-Disclosure Agreement or Confidentiality Agreement between Customer and SensiML be effective and in place, such agreement terms would take precedence over and supersede terms outlined herein.

 

13.  Term and Termination

 

13.1.      Term. This agreement commences on the Effective Date and ends upon the earlier of (i) the date specified by SensiML or (ii) the date on which Customer’s access to the SensiML SaaS Platform for evaluation is disabled by SensiML, unless otherwise specified in the Ordering Document. Customer’s ability to use the SensiML SaaS Platform and SensiML Software offering terminates at the end of the Agreement along with any access to materials Customer may have been provided for use in conjunction with the SensiML Software, and Customer agrees to promptly discontinue use of the SensiML Software offering and destroy any copies of the associated SensiML Software within Customer’s possession or control.

13.2.      Termination. Except for Customer’s obligations set forth in sections 3, 5, 6, 7, 8, 9, 10, 11, 12, 14.8, 14.9 and 14.11, each of which shall survive termination or expiration of this Agreement, the remaining terms of this Agreement, including any then-existing licenses to the SensiML Software or the SensiML SaaS Platform, will terminate as set forth in section 13.1.  If no expiration date is set in the Ordering Document, the Agreement expires 6 months after its execution. 

14.  General

 

14.1.      Restrictions on Use of Services. Customer agrees not to use or permit use of the services or SensiML Software, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (i) menace or harass any person or cause damage or injury to any person or property, (ii) involve the publication of any material that is false, defamatory, harassing or obscene, (iii) violate privacy rights or promote bigotry, racism, hatred or harm, (iv) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (v) constitute an infringement of intellectual property or other proprietary rights, or (vi) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to SensiML under the Agreement, SensiML reserves the right to remove or disable access to any Customer user that violates the foregoing restrictions. SensiML shall have no liability to Customer in the event that SensiML takes such action. Customer agrees to defend and indemnify SensiML against any claim arising out of a violation of Customer’s obligations under this section.

 

14.2.      Government Restricted Rights. The SensiML Software is a "commercial item" as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer Software" and "commercial computer Software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R 227.7202-1 through 227.7202-4, Customer will not provide the SensiML Software to the U.S. Government. Contractor or Manufacturer is SensiML Corporation, 8196 SW Hall Blvd Suite #336, Beaverton, OR 97008 USA.

 

14.3.      Export Regulations/Export Control. Customer acknowledges and agrees that the SensiML Software is subject to all applicable export control laws and regulations, including, without limitation, those of the United States Government. Customer shall strictly comply with all applicable export control laws and regulations related to the SensiML Software, including, without limitation, U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, and all licenses and authorizations issued under such laws and regulations. Customer agrees that it shall not, and shall cause its representatives, employees, agents, contractors and customers to agree not to, export, re-export, divert, release, transfer, or disclose any such SensiML Software, or any direct product thereof, to any prohibited or restricted destination, end-use or end-user, except in accordance with all relevant export control laws and regulations.

 

14.4.      Assignment. Customer may not delegate, assign or transfer this Agreement, the license(s) granted or any of Customer’s rights or duties hereunder, expressly, by implication, by operation of law, or otherwise and any attempt to do so, without SensiML’s express prior written consent, will be null and void. SensiML may assign, delegate and transfer this Agreement, and its rights and obligations hereunder, in its sole discretion.

 

14.5.      Severability. In the event that any provision of this Agreement will be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

 

14.6.      Force Majeure. Neither SensiML nor Customer shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the services.

 

14.7.      Waiver. The failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

 

14.8.      Applicable Law. All matters arising out of or related to this Agreement, including without limitation all matters connected with its performance, will be construed, interpreted, applied and governed in all respects in accordance with the laws of the United States of America and the State of Oregon, without reference to conflict of laws principles.  Subject to the dispute resolution provisions below, all disputes and litigation arising out of or related to this Agreement, including without limitation matters connected with its performance, will be subject to the exclusive jurisdiction of the courts of the State of Oregon or of the Federal courts sitting therein. Each party hereby irrevocably submits to the personal jurisdiction of such courts and irrevocably waives all objections to such venue. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

 

14.9.      Attorney’s Fees. In any action related to this Agreement, if any party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other party shall pay, on demand, the prevailing party’s reasonable attorneys’ fees and reasonable costs.

 

14.10.    Entire Agreement. The terms and conditions of this Agreement, any existing CNDA, and the SensiML Software Evaluation Agreement constitute the entire agreement between the parties with respect to the subject matter hereof, and merge and supersede all prior, contemporaneous agreements, understandings, negotiations and discussions. Neither of the parties hereto will be bound by any terms, conditions, definitions, warranties, understandings or representations with respect to the subject matter hereof other than as expressly provided for herein. Each party is not obligated under any other agreements unless they are in writing and signed by an authorized representative of each party.

14.11.            Dispute Resolution. 

14.11.1.  Claims. The parties to this Agreement agree that any claim, demand, controversy, dispute, or cause of action, whether asserted as an action in contract, tort, warranty, or otherwise, arising out of or in any way related to the performance, interpretation, application, or enforcement of this Agreement (collectively “Claim(s)”) will be resolved in accordance with the provisions set forth in this section.

14.11.2.  Mediation. If any Claim is not resolved after good-faith discussions between the parties, either party may request that the parties engage in non-binding mediation by sending a written request for mediation to the other party. Any such mediation shall be held in Portland, Oregon. The parties shall use best efforts to select a mediator that is acceptable to both parties. Neither party may initiate arbitration pursuant to section 14.11.3 unless (a) the parties have participated in good faith in mediation or agreed in writing to waive this requirement, or (b) at least fourteen (14) days have passed since the first written request for mediation was made.

14.11.3.  Agreement to Arbitrate. If any dispute is not resolved under section 14.11.2, either party may initiate binding arbitration [using mutually agreed arbitrator or if agreement cannot be reached then] with the Arbitration Services of Portland (“ASP”). Such Claim(s) will be resolved by final and binding arbitration in accordance with the rules of ASP applicable to the underlying dispute, unless the parties agree otherwise. The arbitration of any Claim(s) shall be held in Portland, Oregon. The parties expressly acknowledge and agree that each waives any right to a jury trial under this agreement to arbitrate. The award rendered by the arbitrator(s) shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction.

A.        Definitions

A.1.      “SensiML SaaS Platform” means the cloud analytics services made available to and use of software hosted by SensiML Corporation to Customer.  Such service consists of access to SensiML programs, documentation, system administration system management, and system monitoring that SensiML provides for use of its analytics tools, as well as any other services provided by SensiML as defined in the Ordering Document (collectively, the “services”).

A.2.      “SensiML Software” means the software products owned or distributed by SensiML to which SensiML grants Customer access as part of the services.  Such software includes but is not limited to SensiML Analytics Studio, SensiML Data Capture Lab, SensiML Analytics Engine client software, SensiML mobile applications, related components, application program interfaces, device drivers, software tools, associated media, printed materials, electronic documentation and any updates or releases thereto.

A.3.      “Licensed Patent Claims” means those claims of SensiML’s patents that SensiML has the right to license that are infringed by the Software itself, in its unmodified form, as furnished to Customer by SensiML and not combined with anything else.

1.    Scope of License and Related Terms

1.1.         Purpose.  SensiML makes the SensiML Software available to Customer solely for Customer’s internal evaluation and review in order to determine whether SensiML Software is suitable for Customer’s efforts to develop products integrating SensiML Software and SensiML SaaS Platform.  Customer may not disclose, distribute or make commercial use of the Software. 

1.2.         Limited License Grant. Subject to the terms and conditions of this Agreement, SensiML grants to Customer a limited, nonexclusive, nontransferable, non-sublicensable revocable, worldwide, fully paid-up license during the term of this Agreement, without the right to sublicense, for the sole purpose described in section 1.1 above and including but not limited to any rights (i) under SensiML’s copyrights (subject to any third party licensing requirements reflected herein, if any), to reproduce the Software internally and (ii) under SensiML’s Licensed Patent Claims to use the SensiML Software solely to the extent necessary to exercise the license granted in this section 1.2. 

1.3.         License Restrictions.  Customer retains all ownership and intellectual property rights in and to Customer’s data. SensiML or its licensors retain all ownership and intellectual property rights to the services and SensiML Software. SensiML retains all ownership and intellectual property rights to anything developed and delivered under the Agreement. Customer may not: (i) remove or modify any program markings or any notice of SensiML’s or its licensors’ proprietary rights; (ii) make the programs or materials resulting or derived from the services or SensiML Software available in any manner to any third party for use in the third party’s personal or business operations (unless such access is expressly permitted for the specific program license or materials from the services Customer have acquired); (iii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services or SensiML Software (the foregoing prohibition includes but is not limited to review of data structures, interim results provided for developer validation and/or testing purposes, or similar materials produced by the services or SensiML Software), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to SensiML; (iv) publish, display, loan, transfer, assign, sublicense, use, copy, distribute, sell or offer to sell the SensiML Software or associated documentation; (v) disclose results of any services or program benchmark tests or outputs without SensiML’s prior written consent; and (vi) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, SensiML Software or programs or materials available, to any third party other than, as expressly permitted under the terms of the Agreement. Except as expressly provided herein, no part of the services or SensiML Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and Customer agree to make every reasonable effort to prevent unauthorized third parties from accessing the services or SensiML Software.

1.4.         License to Feedback and Modifications.  To ensure SensiML’s freedom to operate and to continue to develop the SensiML Software licensed hereunder, Customer agrees to grant and does hereby grant to SensiML and its affiliates a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up and transferable license, with the right of sublicense, to and under any copyrights, trade secrets, patents and any other of Customer’s intellectual property rights, whether perfected or not, to publicly perform, publicly display, reproduce, use, make, have made, sell, offer for sale, distribute, import, create derivative works of and otherwise exploit any comments, suggestions, descriptions, ideas or any other feedback provided by or on behalf of Customer regarding the SensiML Software.

1.5.         No Other Rights. Except as otherwise expressly provided above, SensiML grants no express or implied rights under SensiML patents, copyrights, trade secrets, trademarks, or other intellectual property rights.  Except as expressly stated in this Agreement, no license or right is granted to Customer directly or by implication, inducement, estoppel or otherwise.  SensiML has the right to inspect or have an independent auditor inspect Customer’s relevant records to verify Customer’s compliance with the terms and conditions of this Agreement.

1.6.         Open Source Statement.  The SensiML Software includes “Open Source Software” that is licensed pursuant to the Open Source Software license agreement(s) identified in the Open Source Software comments in the applicable source code file(s) and/or file header(s) provided with or otherwise associated with the SensiML Software.  Additional detail may be provided (where applicable) in the accompanying on-line documentation, or within the user interface of the device, if any.  With respect to Open Source Software, nothing in this Agreement limits any rights under, or grants rights that supersede, the terms of any applicable Open Source Software license agreement. 

1.7.         No Obligation.  Customer has no duty to purchase or license any product from SensiML.  SensiML may make changes to the SensiML Software, or to items referenced therein, at any time without notice, but is not obligated to support, update, provide training for or develop a final version of the SensiML Software or to license any version of it.

1.8.         Implementation and Support.  SensiML has no obligation under this Agreement to provide any support or consultation concerning the SensiML Software or SensiML SaaS Platform.  Provided, however, SensiML may, in its sole discretion, provide Customer with certain support and consultation to assist in the evaluation activities of Customer under this Agreement.  Such support and consultation may be provided free of charge or at an agreed upon rate or cost.  The furnishing of such support or consultation will not subject SensiML to any liability, whether in contract, tort or otherwise.  Customer is responsible for providing all applicable hardware and any third party software or required installation and configuration services required for the operation of the SensiML Software.  Any third party software license agreements will be agreed to by Customer and the applicable third party software vendor.

1.9.   Restrictions on Use of Services. Customer agrees not to use or permit use of the services or SensiML Software, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (i) menace or harass any person or cause damage or injury to any person or property, (ii) involve the publication of any material that is false, defamatory, harassing or obscene, (iii) violate privacy rights or promote bigotry, racism, hatred or harm, (iv) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (v) constitute an infringement of intellectual property or other proprietary rights, or (vi) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to SensiML under the Agreement, SensiML reserves the right to remove or disable access to any Customer user that violates the foregoing restrictions. SensiML shall have no liability to Customer in the event that SensiML takes such action. Customer agrees to defend and indemnify SensiML against any claim arising out of a violation of Customer’s obligations under this section.

2.    Proprietary Rights and Data.

2.1.         SensiML Software And Copyright Ownership. Title to all copies of the SensiML Software remains with SensiML. The SensiML Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. Customer may not remove any copyright notices from the SensiML Software.

2.2.         Customer Data. Customer agrees to allow SensiML and its Affiliates to transmit, store, and use Customer data (the “Customer Data”) generated, collected, or transferred to and from SensiML for purposes of providing data processing and development services to the Customer.  Such Customer Data will be processed and used in connection with SensiML’s Software and SensiML SaaS Platform and may be provided to employees and contractors acting on SensiML’s behalf for uses consistent with servicing and supporting Customer’s use of the software and services.  To the extent that (i) Customer data is input into or resides in the SensiML Software as part of this evaluation (the “Customer Data”) and (ii) the Customer Data contains personal data about any living individual (“Data”), SensiML will process that Data only as a Data Processor acting on behalf of Customer (as the Data Controller) and in accordance with the requirements of this Agreement. 

2.3.         Compliance with Privacy Laws; Purpose Limitation. Customer will at all times comply in full with the requirements of any applicable privacy and data protection laws (including where applicable, European Union Directives 95/46/EC and 2002/58/EC and any national implementation(s) of them) to which it is subject as a Data Controller (“Applicable Privacy Law(s)”). SensiML will process the Data in accordance with Customer’s instructions under Applicable Privacy Law(s) and will not: (a) assume any responsibility for determining the purposes for which and the manner in which the Data is processed, or (b) process the Data for its own purposes.

2.4.         HIPAA and PHI Data. Customer understands and acknowledges that neither the SensiML SaaS Platform nor the SensiML Software are configured to receive and store personal health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”) and that SensiML is neither a “Covered Entity” nor a “Business Associate,” as those terms are defined in HIPAA.  As such, Customer agrees not to (i) use the SensiML Software or SensiML SaaS Platform or (ii) provide access to or submit any PHI to SensiML when requesting technical and/or support services, in either case, in a manner which, directly or indirectly, submits, retains, stores or includes any PHI as part of the Customer Data. Customer agrees that SensiML may terminate this Agreement immediately, if Customer is found to be in violation of this Section.  To the fullest extent allowed by law, Customer agrees to defend, indemnify and hold SensiML harmless as to any claim against SensiML relating to Customer’s breach of this provision of the Agreement.

2.5.         Usage Data. In the course of providing Customer with the SensiML software pursuant to this Agreement, SensiML may collect, use, process and store diagnostic and usage related content from any devices the Customer uses to access the SensiML Software or SensiML SaaS Platform. This may include, but is not limited to, IP addresses and other information like internet service, location, the type of system and modules that are used and/or accessed (the “Usage Data”). Usage Data does not, however, include Customer Data. Customer agrees that SensiML may process Usage Data to create and compile anonymized, aggregated datasets and/or statistics about the SensiML Software and/or SensiML SaaS Platform services for any lawful purpose(s), including but not limited to: (a) maintaining and improving the performance and integrity of SensiML software or services, (b) understanding which SensiML products or services are most commonly deployed and preferred by customers and how customers interact with SensiML products or services, (c) identifying the types of SensiML services that may require additional maintenance or support, and (d) complying with all regulatory, legislative and/or contractual requirements, provided in each case that such aggregated datasets and statistics will not enable Customer or any living individual to be identified except as required by law.

2.6.         Customer Indemnification. Customer shall at its cost and expense (i) defend or settle any claim brought against SensiML by an unaffiliated third party alleging that Customer Data infringes or violates a third party’s intellectual property or privacy right(s), and (ii) pay, indemnify and hold SensiML, its directors, officers, and employees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.

3.    Term and Termination

3.1.         Term. This agreement commences on the Effective Date and ends upon the earlier of (i) the date specified by SensiML or (ii) the date on which Customer’s access to the SensiML SaaS Platform for evaluation is disabled by SensiML, unless earlier terminated as specified in Sections 2.4 and 3.3. Customer’s ability to use the SensiML SaaS Platform and SensiML Software offering terminates at the end of the Agreement along with any access to materials Customer may have been provided for use in conjunction with the SensiML Software, and Customer agrees to promptly discontinue use of the SensiML Software offering and destroy any copies of the associated SensiML Software within Customer’s possession or control.

3.2.         Termination. Except for Customer’s obligations set forth in sections 1.3, 1.4, 2.1 - 2.5, 4.1, 4.2, 5.1, 5.7, 5.8 and 5.10, each of which shall survive termination or expiration of this Agreement, the remaining terms of this Agreement, including any then-existing licenses to the SensiML Software or the SensiML SaaS Platform, will terminate as set forth in section 3.1.  If no expiration date is otherwise agreed upon in writing prior to the Effective Date, the Agreement expires 6 months the Effective Date. 

3.3.         Termination for Convenience. SensiML may terminate this Agreement immediately by providing Customer with notice of the termination by whatever means are reasonably calculated to provide actual notice to Customer. 

3.4.         Results of Termination.  Upon termination, all licenses granted to Customer by SensiML will immediately terminate and otherwise become null and void and Customer shall immediately destroy all portions and instances of any SensiML Software and SensiML SaaS Platform or return all copies of the same to SensiML.  Following termination of this Agreement, for any reason, including expiration, Customer shall return to SensiML any and all documentation or copies or reproductions of the same.  Further, Customer shall promptly, and in any event within 30 days following termination, return to SensiML all other property and Confidential Information, in all forms, partial and complete, in all types of media and computer memory, and whether or not merged with other materials, or, to the extent such return is not reasonably practical, to destroy such property and Confidential Information.  Upon written request by SensiML, the fact of any such destruction shall be certified in writing by Customer.

4.    Disclaimer of Warranties; Limitation of Liability.

4.1.         Exclusion Of Warranties. THE SENSIML SOFTWARE IS PROVIDED TO Customer ON AN "AS IS" BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.  SensiML does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the SensiML Software.

4.2.         Limitation Of Liability. IN NO EVENT WILL SENSIML BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, INCLUDING THE USE OF OR INABILITY TO USE THE SENSIML SOFTWARE, EVEN IF SENSIML HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SENSIML AND Customer AND SENSIML WOULD NOT BE ABLE TO PROVIDE THE SENSIML SOFTWARE WITHOUT SUCH LIMITATIONS.

5.    General

5.1.         Confidentiality and Non-Disclosure. The parties acknowledge that in the course of performing their obligations under this Agreement, each may receive confidential information (“Confidential Information”) including but not limited to proprietary trade secrets. Each party covenants and agrees that it, including its agents, employees, officers, directors or representatives will maintain and protect from disclosure the Confidential Information using at least as great a degree of care as it uses to maintain the confidentiality of its most confidential information.  Each party covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by written agreement, with terms at least as restrictive as these, not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. Within five (5) days after a Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information; provided, however, that the Receiving Party shall be entitled to retain archival copies of the Confidential Information of the Disclosing Party solely for legal, regulatory or compliance purposes unless otherwise prohibited by law.  Should separate Corporate Non-Disclosure Agreement or Confidentiality Agreement between Customer and SensiML be effective and in place, such agreement terms would take precedence over and supersede terms outlined herein.

5.2.         Government Restricted Rights. The SensiML Software is a "commercial item" as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer Software" and "commercial computer Software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R 227.7202-1 through 227.7202-4, Customer will not provide the SensiML Software to the U.S. Government. Contractor or Manufacturer is SensiML Corporation, 8196 SW Hall Blvd Suite #336, Beaverton, OR 97008 USA.

5.3.         Export Regulations/Export Control. Customer acknowledges and agrees that the SensiML Software is subject to all applicable export control laws and regulations, including, without limitation, those of the United States Government. Customer shall strictly comply with all applicable export control laws and regulations related to the SensiML Software, including, without limitation, U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, and all licenses and authorizations issued under such laws and regulations. Customer agrees that it shall not, and shall cause its representatives, employees, agents, contractors and customers to agree not to, export, re-export, divert, release, transfer, or disclose any such SensiML Software, or any direct product thereof, to any prohibited or restricted destination, end-use or end-user, except in accordance with all relevant export control laws and regulations.

5.4.         Assignment. Customer may not delegate, assign or transfer this Agreement, the license(s) granted or any of Customer’s rights or duties hereunder, expressly, by implication, by operation of law, or otherwise and any attempt to do so, without SensiML’s express prior written consent, will be null and void. SensiML may assign, delegate and transfer this Agreement, and its rights and obligations hereunder, in its sole discretion.

5.5.         Severability. In the event that any provision of this Agreement will be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

5.6.         Force Majeure. Neither SensiML nor Customer shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the services.

5.7.         Waiver. The failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

5.8.         Applicable Law. All matters arising out of or related to this Agreement, including without limitation all matters connected with its performance, will be construed, interpreted, applied and governed in all respects in accordance with the laws of the United States of America and the State of Oregon, without reference to conflict of laws principles.  Subject to the dispute resolution provisions below, all disputes and litigation arising out of or related to this Agreement, including without limitation matters connected with its performance, will be subject to the exclusive jurisdiction of the courts of the State of Oregon or of the Federal courts sitting therein. Each party hereby irrevocably submits to the personal jurisdiction of such courts and irrevocably waives all objections to such venue. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

5.9.         Attorney’s Fees. In any action related to this Agreement, if any party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other party shall pay, on demand, the prevailing party’s reasonable attorneys’ fees and reasonable costs.

5.10.      Entire Agreement. The terms and conditions of this Agreement, any existing CNDA, and the SensiML SaaS Platform Services Agreement constitute the entire agreement between the parties with respect to the subject matter hereof, and merge and supersede all prior, contemporaneous agreements, understandings, negotiations and discussions. Neither of the parties hereto will be bound by any terms, conditions, definitions, warranties, understandings or representations with respect to the subject matter hereof other than as expressly provided for herein. Each party is not obligated under any other agreements unless they are in writing and signed by an authorized representative of each party.

5.11.     Dispute Resolution. 

5.11.1.   Claims. The parties to this Agreement agree that any claim, demand, controversy, dispute, or cause of action, whether asserted as an action in contract, tort, warranty, or otherwise, arising out of or in any way related to the performance, interpretation, application, or enforcement of this Agreement (collectively “Claim(s)”) will be resolved in accordance with the provisions set forth in this section.

5.11.2.   Mediation. If any Claim is not resolved after good-faith discussions between the parties, either party may request that the parties engage in non-binding mediation by sending a written request for mediation to the other party. Any such mediation shall be held in Portland, Oregon. The parties shall use best efforts to select a mediator that is acceptable to both parties. Neither party may initiate arbitration pursuant to section 5.10.3 unless (a) the parties have participated in good faith in mediation or agreed in writing to waive this requirement, or (b) at least fourteen (14) days have passed since the first written request for mediation was made.

5.11.3.   Agreement to Arbitrate. If any dispute is not resolved under section 5.10.2, either party may initiate binding arbitration with the Arbitration Services of Portland (“ASP”). Such Claim(s) will be resolved by final and binding arbitration in accordance with the rules of ASP applicable to the underlying dispute, unless the parties agree otherwise. The arbitration of any Claim(s) shall be held in Portland, Oregon. The parties expressly acknowledge and agree that each waives any right to a jury trial under this agreement to arbitrate. The award rendered by the arbitrator(s) shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction.