OpSense has developed certain software, and Company desires to obtain a license from OpSense to use such software. OpSense is willing to grant a license to Company to use such software, subject to the terms and conditions set forth herein. In consideration of the covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
Description of Licensed Software:
OpSense Platform (OpSense): a software platform with flexible architecture for various deployments in IoT-based monitoring.
(a) Subject to the terms and conditions of this Agreement, OpSense shall exercise its best efforts, during the Term hereof, to provide Technical Assistance to Eligible Recipients by means of the forms of access set forth in an applicable Statement of Work, subject to the conditions regarding availability or response times with respect to each such form of access as set forth in such applicable Statement of Work. OpSense shall undertake such measures as may be necessary, including by means of providing relevant training, to ensure that any OpSense personnel engaged in the provision of Technical Assistance hereunder are reasonably qualified, competent and able to provide Technical Assistance as Eligible Recipients may reasonably be expected to request. Except as required by this Section 4.4 or as otherwise agreed between the Parties, OpSense shall have no obligation hereunder to provide Technical Assistance with respect to the Licensed Software and/or the features and functionality thereof.
(b) OpSense shall have no obligation to provide Technical Assistance, by any means, to any entity or individual other than Eligible Recipients. Company shall, at Company's expense, make available one or more initial point(s) of contact through which all end users of the Licensed Software may request responses to their inquiries regarding use of the Licensed Software. Company shall undertake such measures as may be necessary, including by means of providing relevant training, to ensure that any Company personnel engaged in the provision of such support are reasonably qualified, competent and able to respond to such inquiries as such end users may reasonably be expected to require. If Company personnel are unable, in Company's good faith determination, adequately to respond to any such requests, or in the event any such end user so requests, such end user shall be deemed an Eligible Recipient hereunder and Company may direct such requests to OpSense for purposes of receiving Technical Assistance directly from OpSense.
(a) Unless otherwise agreed by the Parties, OpSense shall have no obligation to provide Technical Assistance with respect to any Software Error resulting from (i) use of the Licensed Software other than according to the terms of this Agreement; (ii) modification of the Licensed Software by Company or any third party, except as expressly permitted in writing by OpSense; or (iii) any combination of the Licensed Software with software or technology not authorized by, or otherwise supplied or provided by, OpSense.
(b) Unless otherwise agreed by the Parties, OpSense shall not be required to provide Technical Assistance regarding use of any version of the software other than any currently released version of the Licensed Software generally available and marketed by OpSense.
(c) OpSense shall not be required to provide Technical Assistance to the extent the provision thereof might reasonably be expected to jeopardize or harm OpSense's rights in any intellectual property, or reveal trade secrets or other proprietary information of OpSense not generally available to the public or to end users of the Licensed Software.
(d) Nothing in this Agreement shall be construed to give Company a right to use, or otherwise obtain access to, any source code from which the Licensed Software or any portion thereof is compiled or interpreted.
(e) As a part of the ASP Service, OpSense will make commercially reasonable efforts to maintain the security and integrity of the ASP Service; provided however, OpSense shall not be required to provide Technical Assistance to the extent the provision thereof would violate OpSense's obligations to any third party with respect to such third party's intellectual property. Furthermore, Company agrees and acknowledges that security breaches cannot be totally prevented.
EXCEPT WITH RESPECT TO EACH PARTY'S RIGHTS AND OBLIGATIONS UNDER SECTIONS 4, 6, AND 9, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF THE PARTY FROM WHICH SUCH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF LICENSOR TO COMPANY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO LICENSOR BY COMPANY UNDER SECTION 5. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
Last Updated: 9/5/2019