END USER LICENSE AGREEMENT
This End User License Agreement ("Agreement") is between the person or entity entering this Agreement through the Microsoft Azure and/or AppSource Marketplace ("Marketplace") or identified in a Senserva Order Form ("you" or "Client") and Senserva, LLC, with is principal place of business at having its principal place of business at 4661White Bear Parkway, St. Paul, MN 55110 (hereinafter, "Senserva"). Senserva and Client are collectively referred to as the "Parties."
SENSERVA PROVIDES SOFTWARE AND SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. BY INDICATING ACCEPTANCE THROUGH THE MARKETPLACE YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THIS AGREEMENT ON YOUR OWN BEHALF OR IF CLIENT IS A CORPORATION, ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT. IF YOU DO NOT AGREE TO THESE TERMS, SENSERVA WILL NOT AND DOES NOT LICENSE THE SOFTWARE OR SERVICES TO YOU AND YOU MUST NOT USE THE SOFTWARE OR SERVICES.
License. In consideration of the payment of the applicable fees as discussed below, Senserva hereby grants to Client, solely for Client's internal business purposes, a non-exclusive, non-transferable, non-sub licensable license to (a) access, download, use, and/or run Senserva's proprietary software, and those additional modules and/or services selected and paid for by Client, as listed on an Order Form or otherwise selected through the Marketplace ordering process ("Services"); and (b) prepare, reproduce, print, download, and use a reasonable number of copies of the generally available user documentation relating to the Services (including user manuals, operating manuals, and other instructions, specifications, documents, and materials provided by Senserva to Client) during the Term as may be necessary or useful for any use of the Services permitted under this Agreement.
Restrictions. Except as expressly permitted in this Agreement, Client must not: (a) copy, modify, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to the source code of any Services, or attempt to do so; (b) install or use any third-party software or technology in any way that would subject Senserva's intellectual property or technology to any other license terms; (c) work around any technical limitations in a Service; (d) use the Services for any unlawful purpose; (e) distribute, sublicense, rent, lease, or lend any Services, in whole or in part to any other person or entity (except for third party service providers or contractors that access the Services in the provision of services to Client), or use them to offer hosting services to a third party; (f) publish, or otherwise make available to any third party, any benchmark testing information or results relating to the Services; or (g) use the Services for any function other than internal business use without express written consent from Senserva.
Intellectual Property Rights and Ownership. Rights to access or use the Services do not give Client any right to implement Senserva's patents or other intellectual property. All right, title, or interest in or to the copyrights, trademarks, patents, trade secrets and all other intellectual property rights in the Services are and shall remain with Senserva. Senserva may place copyright and/or proprietary notices, including hypertext links, within the Services indicating Senserva's proprietary interest therein. Client may not remove, obscure or modify such notices without Senserva's prior written permission. Client acknowledges and agrees that the Services are provided under license, and not sold, to Client. Client does not acquire any ownership interest in the Services under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Senserva reserves and shall retain its entire right, title, and interest in and to the Services and all intellectual property rights arising out of or relating to the Services, except as expressly granted to the Client in this Agreement. Client shall safeguard all Services from infringement, misappropriation, theft, misuse, or unauthorized access.
Third-Party Materials. The Services may include software, content, data, or other materials, including related documentation, that are owned by persons other than Senserva and that are provided to Client on terms that are in addition to and/or different from those contained in this Agreement ("Third-Party Components"). Any such Third-Party Components are licensed to Client under the terms of the applicable third-party licensor.
Use of Azure APIs. Senserva uses Microsoft Azure APIs to find data related to customer's security information. Senserva does not remove this data from the customer's tenant, nor is it used for any other reason than advising customers on their security configurations. Senserva may use beta, undocumented, or unsupported Azure APIs to find as much security information as possible to help the customer ensure they are doing proper security.
End Users. Client will control access to and use of the Services by end users and is responsible for any use of the Services that does not comply with this Agreement. Specifically, and without limiting the generality of the foregoing, Client is responsible and liable for all actions and failures to take required actions with respect to the Services by its authorized users or by any other person to whom Client or an authorized user may provide access to or use of the Services, whether such access or use is permitted by or in violation of this Agreement.
Fees and Payments. All license and metered fees are payable in the manner set forth in the Order Form or the Marketplace and are non-refundable, except as may be expressly set forth herein. License fees are payable in advance, and all other fees (including professional services fees and usage-based fees) will be invoiced monthly in arrears. Unless otherwise set forth in an Order Form, Senserva may increase fees at any time upon thirty (30) days' prior written notice to Client.
Term & Termination. This Agreement shall begin on the date of execution of the Order Form, whether directly or through the Marketplace. Licenses granted on a subscription basis are effective for an initial term set forth in the Order Form ("Initial Term"), and will automatically renew for consecutive twelve (12) month increments (each, a "Renewal Term" and with the Initial Term, the "Term"), unless earlier terminated in accordance with this Agreement. Either party may terminate:
(a) at the end of the then-applicable Term by (a) giving at least sixty (60) days written notice of termination prior to the expiration of the then-current Term.
(b) effective upon written notice to the other party, if the non-breaching party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides written notice thereof.
(c) effective immediately, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
Upon expiration or earlier termination of this Agreement, the licenses granted hereunder shall also terminate, and Client shall cease using the Services. No expiration or termination shall affect Client's obligation to pay all fees that may have become due before such expiration or termination, or entitle Client to any refund, except as explicitly provided herein. The provisions of this Agreement that, by their nature, should survive termination or expiration of this Agreement, will do so.
Collection and Use of Information. Client acknowledges that Senserva may, directly or indirectly, collect and store information regarding use of the Services and about equipment on which the Services are installed or through which they are otherwise is accessed and used. Client agrees that Senserva may use such information for any purpose related to any use of the Services by Client or on Client's equipment, including but not limited to: improving the performance of the Services or developing updates; and verifying Client's compliance with the terms of this Agreement and enforcing Senserva's rights, including all intellectual property rights in and to the Services.
Technical Support. Senserva shall provide Client with certain technical support services as may be further defined in an Order Form (hereinafter, "Support"). Support is defined as response by Senserva to telephone and electronic contacts initiated by the Client to address the performance of the Services.
Limited Warranties. Senserva warrants that the Services will substantially contain the functionality described in the then-current user documentation, and when properly installed according to specifications, will substantially perform in accordance therewith. The foregoing warranties will not apply and will become null and void if Client (including any authorized user or any other person provided access to the Services by Client or any authorized user): (i) installs or uses the Services on or in connection with any hardware or software not specified by Senserva; (ii) modifies or damages the Services; or (iii) misuses the Services. Subject to Client's prompt written notification of a failure of the Performance Warranty, Senserva's sole liability (and Client's sole remedy) will, at Senserva's option, be to: (i) repair or replace the Services, provided that Client provides Senserva with all information Senserva reasonably requests to resolve the reported failure, including sufficient information to enable Senserva to recreate such failure; or (ii) refund a pro-rata portion of the prepaid fees for such Services, subject to Client's ceasing all use of the affected Services. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SERVICES ARE PROVIDED "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SENSERVA, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, SENSERVA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SERVICES WILL MEET THE CLIENT'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Limitation of Liability. IN NO EVENT WILL THE SENSERVA PARTIES (AS DEFINED BELOW) HAVE LIABILITY FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, LOST PROFIT, PUNITIVE OR RELIANCE DAMAGES, OR INDIRECT LOSS FOR DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OR FORM OF ACTION OR WHETHER THE SENSERVA PARTIES OR CLIENT KNEW OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES IN ANY CIRCUMSTANCES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE LIMITATIONS SET FORTH IN SECTION SHALL APPLY EVEN IF THE CLIENT'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Indemnification. You agree to indemnify, defend, and hold harmless Senserva and its officers, directors, employees, agents, affiliates, successors, and assigns ("Senserva Parties") from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Services or your breach of this Agreement, including but not limited to the content you submit or make available through the Services.
Export Control. The Services may be subject to US export control laws. Client shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the US.
US Government Rights. The Services include commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Client is the US Government or any contractor therefor, Client shall receive only those rights with respect to the Services as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Governing Law and Venue. The validity, interpretation, construction, performance, enforcement, and remedies of or relating to this Agreement, and the rights and obligations of the Parties to this Agreement, shall be governed and construed in all respects by the substantive laws of the State of Minnesota (without regard to the conflict of laws rules or statutes of Minnesota or any other jurisdiction that might result in the application of other law).
Force Majeure. Senserva will not be responsible or liable to Client, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Client equipment, loss and destruction of property, or any other circumstances or causes beyond Senserva's reasonable control.
Notice. All notices and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or mailed first class, postage prepaid to the addresses set forth above for Senserva, and as set forth for Client in an Order Form or to such other addresses as one party may have furnished to the other in writing.
Waiver. Failure by either party at any time to enforce any obligation by the other party to claim a breach of any term of this Agreement or to exercise any power agreed to hereunder will not be construed as a waiver of any right, power or obligation under this Agreement, will not affect any subsequent breach and will not prejudice either party in regard to any subsequent action.
Assignment. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Senserva's prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Client will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Senserva's prior written consent is required. Any purported assignment, delegation, or transfer in violation hereof is void. Senserva may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
Complete Agreement. This Agreement, together with an Order Form signed by Client, constitutes the entire agreement of the Parties with respect to its subject matter. There are no other agreements, either express or implied, with regard to this subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement. In the event that any of the terms of this Agreement are in conflict with any applicable rule of law or statutory provision or otherwise unenforceable under applicable law or regulation, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement shall continue in full force and effect.