Sentera Application License Agreement
The SENTERA APPLICATION is covered by one or more U.S. patents. Other patents pending.
This SENTERA APPLICATION LICENSE AGREEMENT (the “Agreement”) shall set forth the terms and conditions pursuant to which Sentera Inc. (“Sentera“, “we“, “us” and “ours“) shall license certain Sentera mobile, desktop and web applications (each an “Application”). Each customer that has agreed to license the Application shall be referred to as the “Customer”.
1.1 The Application to be licensed to the Customer shall be described in the Sentera online order form (the “Order Form”). The Order Form shall also include the applicable license term for the Application (the “Term”), the price or license fee for the Application and any other terms specific to the Application. This Agreement may be terminated for cause by either party immediately and without further notice if the other party defaults in the performance of any of its material obligations under this Agreement and does not cure the default within ten (10) days after receipt of notice in writing from the non-defaulting party. The following sections of this Agreement shall continue in full force and effect upon termination of this Agreement or expiration of the Term: 5, 6 and 8.6.
1.2 Sentera shall have no obligation to refund any portion of an Application Fee for any termination of the license.
2.1 Subject to the provisions of this Agreement, Sentera grants to the Customer a non-exclusive, non-transferable, revocable, limited license to download, access and use the Application during the Term. Any such use of the Application shall be solely in a manner consistent with the terms of this Agreement. Use of the Application is limited to the specific number of Customer users set forth in the Order Form. Except for the license granted in this Section 2.1, the Customer acknowledges that it acquires no other rights to the Application and that all right, title and interest in and to the Application shall remain with Sentera and its licensors. The Customer shall not decompile, copy (except as necessary to make the application available to that number of Customer users described in the Order Form), disassemble, modify, decrypt, translate, extract or otherwise reverse engineer the Application.
2.2 Customer shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application; (b) modify or make derivative works based upon the Application; (c) create Internet “links” to the Application or “frame” or “mirror” the Application on any other server or wireless or Internet-based device; (d) interfere with or disrupt the integrity or performance of the Application or the data contained therein; or (e) attempt to gain unauthorized access to the Application or its related systems or networks.
2.3 In order to use the Application, Customer must acquire and maintain, all at its own cost and expense, that computer or mobile hardware, software and related services further described in the Order Form (collectively the “Required Materials”). Customer shall be solely responsible for the operation, use, support, maintenance and/or any warranty issues related to the Required Materials.
2.4 The Application may make use of or include open-source software code (collectively the “Open-Source Code”), which is not owned, maintained, or supported by Sentera. If any Open-Source Code is used or included in the Application, such use is subject to the terms and conditions of the individual, corporation or organization providing such Open-Source Code. Sentera shall provide a list of all Open-Source Code used with the Application or included with the Application and information concerning the licensing terms related to such Open-Source Code. The operation or use of the Open-Source code is not warranted by Sentera.
3.1 Sentera shall provide Customer with a user ID and password to access and use the Application. Customer is solely responsible for the security and use of each user ID and password. Customer agrees that each user who obtains a user ID and password to use the Application pursuant to this Agreement shall: (a) keep their user ID and password secure and confidential; and (b) not share or transfer User ID and password with any other person or entity. If the security of the user ID and/or password is compromised, Customer shall promptly contact Sentera by email at firstname.lastname@example.org.
3.2 Sentera does not own any data, information, or material that Customer submits to Sentera in the course of using the Application (the “Customer Data”). Customer, not Sentera, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Sentera shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer breach), Customer shall have thirty (30) days to access the Application solely to export their Customer Data. Upon termination for breach, Customer’s access or use to the Customer Data immediately ceases, and Sentera shall have no obligation to maintain or forward any Customer Data. Customer represents and warrants to Sentera that Customer Data: (a) is original to Customer or that Customer has secured the rights to provide and use such Customer Data; (b) does not contain any content that is unlawful or invasive of another’s privacy or publicity rights; or (c) does not contain a virus or other harmful component.
3.4 Sentera shall provide email and phone-based support concerning use of the Application Monday through Friday (excluding Federal holidays) from 8:00 AM to 5:00 PM (Central Standard Time).
The Application shall be provided at the fee set forth in the Order Form (the “Application Fee”). In addition to the Application Fee, Sentera shall invoice Customers for all applicable sales and use taxes. The Customer shall pay the Application Fee when they submit their Order Form. Customer shall pay the License Fee by credit card, debit card or PayPal by submitting the required payment information on the Order Form (the “Payment Information”). Customer hereby grants Sentera the right to use the Payment information submitted by Customer (e.g., card/account number, expiration date and security code) to accept payment of the Application Fee until the Application license is terminated. In addition to any other rights granted to Sentera herein, Sentera reserves the right to suspend or terminate this Agreement and the Customer access to or use of the Application if Sentera is unable to use the Payment Information to accept payment of the Application Fee.
EXCEPT FOR THE OBLIGATIONS SET FORTH IN SECTION 6 (INDEMNIFICATION), IN NO EVENT SHALL (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME, GOODWILL OR DATA, OR THE INABILITY TO UTILIZE THE APPLICATION; OR (B) ONE PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY EXCEED THE APPLICATION FEES ACTUALLY PAID BY Customer IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
6.1 Sentera shall indemnify and hold the Customer and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) a claim alleging that the Application infringes a copyright, a U.S. patent issued, or a trademark of a third party; or (b) a claim, which if true, would constitute a violation by Sentera of its representations or warranties set forth in Section 7.1 below, provided that the Customer (i) promptly give written notice of the claim to Sentera; (ii) gives Sentera sole control of the defense and settlem6.1 ent of the claim (provided that Sentera may not settle or defend any claim unless it unconditionally releases the Customer of all liability); (iii) provide to Sentera all available information and assistance; and (iv) have not compromised or settled such claims.
6.2 Customer shall indemnify and hold Sentera and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) a claim, which if true, would constitute a violation by the Customer of the representations and warranties set forth in Section 7.3 below; or (b) Customer’s breach of Sections 2 or 3.2 above; provided that Sentera (i) gives the Customer prompt written notice of the claim; (ii) gives the Customer control of the defense and settlement of the claim (provided that the Customer may not settle or defend any claim unless the Customer unconditionally releases Sentera of all liability and such settlement does not affect Sentera); and (iii) provides the Customer all available information and assistance; and (iii) has not compromised or settled such claim.
7.1 Sentera represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which Sentera is a party or is otherwise bound; and (c) it is the owner or authorized licensee of the Application.
7.2 Sentera warrants to the Customer that the Application shall be performed in accordance with the functional descriptions of the Application found in Order Form. If the Application fail to so conform to that description of the Application, then Sentera shall, as the Customer’s sole remedy, make a commercially reasonable effort to correct the Application. All warranty claims related to the Application must be made within the then current Term for such Application.
7.3 The Customer represents and warrants that: (a) it has the power and authority to enter into this Agreement and to perform all of its obligations; (b) the performance of such obligations will not conflict with or result in a breach of any agreement to which the Customer is a party or is otherwise bound; and (c) its performance under this Agreement, and its use of the Application, shall comply with all applicable laws, rules, regulations, and policies.
7.4 OTHER THAN AS SET FORTH IN THIS SECTION 7, Sentera SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Sentera DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THE APPLICATION WILL MEET ALL OF THE CUSTOMER’S REQUIREMENTS; OR (C) ALL ERRORS OR DEFECTS WILL BE CORRECTED.
8.1 In the event that Sentera is unable to provide the Application because of any cause reasonably beyond its control, including, without limitation, acts of God (each a “Force Majeure event”), Sentera shall promptly give notice to the Customer and shall take all measures to resume performance. If the period of non- performance exceeds thirty (30) days from the receipt of notice, the Customer may give written notice to Sentera terminating this Agreement effective upon receipt.
8.2 Customer may not assign this Agreement to any person or entity without the prior written permission of Sentera.
8.3 This Agreement, along with each Order Form submitted by Customer, each of which is hereby incorporated by reference, constitutes the entire understanding of the parties and supersedes all prior discussions and agreements with respect to its subject matter. This Agreement may be amended only by written instrument signed by both parties.
8.4 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of Sentera to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Sentera in writing.
8.5 Either party may give notice by personal delivery or by nationally recognized expedited carrier (e.g. FedEx or DHL). Personal delivery shall be effective upon delivery; delivery by expedited carrier shall be deemed delivered forty-eight (48) hours after the notice is sent by such expedited carrier.
8.6 This Agreement may be executed in one or more counterparts, each of which shall be deemed a duplicate original and all of which, when taken together, shall constitute one and the same document.
8.7 Notwithstanding the provisions of this Section 3 above, Sentera shall have the right during the Term to: (a) list and name Customer as a user of the Application (including the limited right to use Customer’s corporate logo, subject to Customer’s written guidelines on such use); and (b) issue a press release regarding this agreement subject to Customer’s prior written approval, which shall not be unreasonably withheld.
8.8 The Agreement shall be controlled by and interpreted under the laws of the state of Minnesota, excluding that state’s conflict of laws’ provisions. The exclusive jurisdiction for any dispute regarding this Agreement shall be the state or federal courts in Hennepin County, Minnesota. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
8.9 This Agreement is in the English language only, which language will be controlling in all respects. The parties hereto have requested that this Agreement be drafted in English.