Terms and Conditions

Terms and Conditions

TERMS AND CONDITIONS

These terms and conditions, also called license and subscription frame agreement (“Agreement”) are entered into as of the date of its acknowledgement (“Effective Date”) by and between SENORICS GmbH, Räcknitzhöhe 35, D – 01217 Dresden, Germany – hereinafter referred to as “SENORICS” – and the acknowledging customer – herein after referred to as “Customer” – with SENORICS and Customer being referred to individually as “Party” – and jointly as “Parties”.

Recitals

WHEREAS, SENORICS develops sensor solutions comprising of a hardware and software package for visible (VIS) and near infrared (NIR) spectroscopy and related services; Customer desires to acquire a license from SENORICS to use such solution and to access SENORICS online platform to purchase products and services. Further, Customer desires a license to integrate such products into its own products and to sell SENORICS’ products thus combined and related online services to its commercial customers; and SENORICS is willing to grant such a license and access to Customer and to provide ordered online services under conditions specified herein.

NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the Parties hereto, intending to be legally bound, do hereby agree as follows.

  1. DEFINITIONS

As used in this Agreement, the following terms shall have the meanings specified below.

“Affiliate” means any legal entity that a Party owns, that owns a Party, or that is under common ownership with a Party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.

“Customer Data” means all data, including all measuring data, text, sound, video, or image files, and software, that are provided to SENORICS by, or on behalf of, Customer through use of the Online Service.

“End User” or “Sublicensee” means any person Customer permits to access Customer Data hosted in the Online Services or otherwise to use the Online Services or the Online SENORICS Portal.

End User Online Services” mean Online Services purchased by Customer for the use of Integrated Products in order to provide such to its Sublicensees.

“Online Service” mean any service provided by SENORICS and specified in a related scope of work and subscribed under this Agreement (Exhibit 1).

“Online Services and Product Purchase Terms” means the terms that apply to Customer’s use of the Online Services and Products made available at https://senorics.com/our-toolbox/#offerings Online Services and Product Purchase Terms (“OSPPT”) include terms governing Customer’s use of Products that are in addition to the terms in this Agreement and shall apply to the selected and ordered Online services and Product Purchase.

“Online SENORICS Portal” means the SENORIC’s respective web sites that can be found at https://www.senorics.com/my-account or at an alternate website SENORICS identifies.

“Product” means any combination of a Sensor Device and Software provided by SENORICS. For purposes of this Agreement, the term “sale” or “purchase” will be understood to mean “license” whenever used in connection with such hardware, Software or documentation;

Sensor Device” means SENORIC’s sensors for visible (VIS) and near infrared (NIR) spectroscopy.

Software” means a computer program, application including related documentation and computer databases, further including software or firmware embedded in hardware such as the Sensor Device;

Source Code” means a computer code that is in a form that reveals the functional operation of the computer program to one skilled in the art.

Subscription” means an enrollment for Online Services for a defined Term as specified in the OSPPT made available at the Online Service Portal. Customer may purchase multiple Subscriptions, which will be administered separately, and which will be governed by the terms of a separate subscription and license.

Term” means the duration of any Subscription.

  1. LICENSE AND USE OF THE PRODUCT AND ONLINE SERVICE PORTAL.

2.1       Subject to the terms and Conditions of this Agreement Customer subscribes to access the Online SENORICS Portal and SENORICS grants to Customer (i) a non-exclusive and non-transferable (unless expressly granted) right and license to use the Online SENORICS Portal, and (ii) to subscribe for Online Services, and (iii) to install and use the Sensor Device and the application code of the Software included with the Subscription of Online Services. Customer may not allow multiple users to directly or indirectly access any Online Services feature that is made available on a per-user basis.

2.2       Further, Customer may purchase and use Products eligible for End User Online Services and make copies of the binary code of the Software of such Products and combine such copies with hardware devices and/or software products of its own or purchased from a third party by using the application programming interface to create a resulting combined hardware/software system that can perform functions that its independent components could not perform separately (such combined hardware devices and/or software products are referred to herein as “Integrated Products”) and commercialize and provide usage of such Integrated Products to End Users by maintaining Subscriptions for such use of each Integrated Product, provided however, that the Customer’s service interface of each Integrated Product (i) will be deployed and executed only on Customer’s own Computer Systems, in a closed service environment, and (ii) will be used by End Users through user interfaces developed by Customer, and (iii) that such Integrated Product is linked to valid Subscriptions. The term “Computer System” shall mean a system of interconnected computers of Customer that share a central storage system and various peripheral devices such as a printers, scanners, or routers. Customer shall use its best efforts to commercialize the Integrated Product, according to its preferred means, including, the appropriateness and timeliness of any such measures.

2.3       Customer may use the Products only with the application code of SENORICS Products, which can be installed and used on computers as set forth on the Online SENORICS Portal and such use must in accordance with this Agreement. Customer may only copy the Software if its duplication is absolutely required and essential for the proper use in accordance with this Agreement. “Required and essential” duplications include the installation of the Software from the original recording medium on the bulk memory of the used hardware of the Integrated Product as well as granting the right to its Sublicensee’s to load the Product into the working memory to take it into operation. Customer may not reverse engineer, decompile, disassemble, or work around technical limitations in the Product, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters Customer’s use of Online Services. Customer may not rent, lease, lend, resell, transfer, or host the Product, or any portion thereof, to or for third parties except as expressly permitted in this Agreement or the OSPPT.

2.4       Customer shall control the access to Online Services by End Users and is responsible for their use of the Product in accordance with this Agreement. Further, Customer shall solely be responsible for the content of all Customer Data. Customer will secure and maintain all rights in Customer Data necessary for SENORICS to provide the Online Services to Customer without violating the rights of any third party or otherwise obligating SENORICS to Customer or to any third party. SENORICS does not and will not assume any obligations with respect to Customer Data or to Customer’s use of the Product other than as expressly set forth in this Agreement or as required by applicable law.

2.5       Customer shall be responsible for maintaining the confidentiality of any non-public authentication credentials associated with Customer’s use of the Online Services. Customer must promptly notify SENORICS about any possible misuse of its accounts or authentication credentials or any security incident related to the Online Services.

2.6       To enable access to the Online Service Portal and make use of the Online Services, Customer may use the Sensor Device provided by SENORICS and install and use the Software in connection with Customer’s use of the Online Service as described in the Online Services Terms. SENORICS grants the use of the Sensor Device on the basis of a loan and licenses the Software to Customer; SENORICS does not sell both. Proof of Customer’s Software license is (1) this Agreement, (2) any order confirmation, and (3) proof of payment. Customer’s rights to access Software on any device do not give Customer any right to implement other SENORICS intellectual property in software or devices that access that device.

2.7       Customer agrees and commits that the Products may be taken into operation in connection with the Integrated Product only with the restrictions set out in a Customer End-User-Licensing Agreement (“EULA”) that will not contradict or expand any of SENORIC’s obligations and liabilities hereunder, and which shall contain, at a minimum, substantially the same provisions as the ones attached hereto as Exhibit 2, which are hereby incorporated in this Agreement by reference and with which Customer fully agrees. Failure to execute such a EULA will render Customer, and Customer alone, solely responsible for any loss or liability suffered by SENORICS and any of its related corporate entities as a result thereof, and for which Customer will indemnify SENORICS and its related corporate entities.

2.8       Customer has no licence or authorization to commercialize, distribute, market and sell the Integrated Products or any part thereof on a stand-alone basis. Customer’s Sublicensee’s may not sell the Products encapsulated in any Integrated Product unless Customer Sublicensee ceases the use of such Products and all portions thereof and has destroyed all copies thereof and assigned the Integrated Product that contains the Product to any third party.

  1. ORDERS FOR ONLINE SERVICES.

3.1       SENORICS provides Online Services for available Subscription offers, which generally can be ordered by Customer in writing and that are categorized as one or a combination of the following:

3.1.1     Customer commits in advance to purchase a specific quantity of Online Services for use during a Term and to pay upfront or on a periodic basis in advance of use (“Commitment Offering”). With respect to Online Services, additional or other usage (for example, usage beyond your commitment quantity) may be treated as a Consumption Offering. Committed quantities not used during the Term will expire at the end of the Term.

3.1.2     Customer pays based on actual usage in the preceding month with no upfront commitment. Payment is on a periodic basis in arrears (“Consumption Offering”).

3.1.3     Customer receives a limited quantity of Online Services for a limited term without charge (for example, as a trial Subscription or free account) or as part of another offering (“Limited Offering”). Provisions in this Agreement with respect to pricing, cancellation fees, payment, and data retention may not apply.

3.2       Limited Offerings may include offers that include the provision of Products for evaluation purposes. SENORICS hereby grants to Customer a non-exclusive, non-transferable right and license to install and use the Product in accordance with the terms of this Agreement and to the extent necessary to evaluate SENORICS’ Products and Online Services. This license is granted to Customer on a temporary basis and subject to license fees.

3.3       By ordering or renewing a Subscription, Customer agrees to the offer details for that Subscription specified in the OSPPT. Unless otherwise specified in the offer details, Online Services and Products are offered on an “as available” basis.

3.4       Some offers may permit Customer to modify the quantity of Online Services ordered during the Term of a Subscription. Additional quantities of Online Services added to a Subscription will expire at the end of that Subscription. If Customer decrease the quantity during a Term, SENORICS may charge Customer a reasonable cancellation fee.

  1. ORDERS AND DELIVERIES AND PRODUCT RETURNS.

4.1       Products available for purchase can be ordered by Customer in writing. Unless specifically stated otherwise, all deliveries of the Sensor Devices hereunder shall be shipped by SENORICS from the manufacturing facility of its choice to Customer upon Customer’s risk.

4.2       Software and any documentation hereto will be provided to Customer by making it available in binary code and electronically by providing a download access. Customer acknowledges and accepts that all related documentation on the functionality and operation of Software is enclosed as PDF copy with the Software and shall solely be provided in English language. No Source Code and no hardcopies containing any Software or documentation must be provided by SENORICS. Any cost related to the download shall exclusively be borne by Customer.

4.3       In case of termination of Subscriptions, Customer shall return Products to SENORICS that Customer received in accordance with the Subscription offer free of charge for evaluation purposes. Prior to returning any item to SENORICS, whether under warranty or otherwise, Customer must obtain a return authorization from SENORICS or the shipment may be refused. Shipping charges for returning any Product to SENORICS are the responsibility of Customer. If not covered by warranty, subsequent costs for inspection, shipping, expediting and placing returned Product into working condition will be charged to the Customer. Customer shall issue a purchase order to cover such non-warranty work. Products returned under warranty and found to be in good working order will be subject to charges for inspection, testing and return shipping costs. SENORICS will cover in-warranty repairs including outbound shipping charges via transportation of its choosing.

  1. TERMS OF PAYMENT AND PRICES.

5.1       Payments are due and must be made according to the offer details for Customer’s Subscription.

5.2       For Commitment Offerings, the price level may be based on the quantity of Online Services Customer ordered. Some offers may permit Customer to modify the quantity of Online Services ordered during the Term and Customer’s price level may be adjusted accordingly, but price level changes will not be retroactive. During the Term of Customer’s Subscription, prices for Online Services will not be increased, as to Customer’s Subscription, from those posted in the Portal at the time Customer’s Subscription became effective or was renewed, except where prices are identified as temporary in the offer details. All prices are subject to change at the beginning of any Subscription renewal.

5.3       For Consumption Offerings, pricing is subject to change at any time upon notice.

5.4       Customer will pay the invoiced amount without setoff or deduction and including applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this agreement and which we are permitted to collect from you under applicable law. Amounts not paid will incur an interest charge of 1.5% per month or the highest allowable by law. Failure to pay full amounts will result in a revocation of any licenses or rights provided under the transaction.

5.5       All amounts payable by Customer to SENORICS hereunder shall be free and clear of all applicable taxes or transaction fees, charges or surcharges. To the extent that Customer is required to withhold any taxes or charges from any payments hereunder, the amount of each of such payments shall be increased so that the net amount actually paid to SENORICS equals the amount that would otherwise be paid had such taxes and charges not been required to be withheld.

5.6       All prices are exclusive of any applicable taxes, including sales, use, excise or withholding taxes or any other taxes, fees, customs duties and charges. Unless expressly otherwise agreed, the prices set forth herein do not include costs of installation, maintenance and servicing of the Product, or the adaptation thereof to the specific needs of the Customer, or the costs of any training and instruction programs.

5.7       Unless otherwise expressly described in the Subscription offer all prices charged by SENORICS to Customer for Products and Online Services do not include costs of installation, maintenance and servicing of the Product or the adaptation thereof to the specific needs of Customer nor the costs of any training and instruction programs.

  1. TERM AND RENEWAL OF SUBSCRIPTION.

6.1       Customer may terminate a Subscription at any time during its Term; however, Customer must pay all amounts due and owing before the termination is effective. The termination becomes effective at the end of Term of the Subscription in accordance with the offer details.

6.2       Upon renewal of Customer’s Subscription, Customer’s Subscription will thereafter be governed, by the terms and conditions set forth in the Online Portal on the date on which Customer’s Subscription is renewed (the “Renewal Terms”). If Customer does not agree to any Renewal Terms, Customer may decline to renew the Subscription.

6.3       For Commitment Offerings, Customer may choose to have a Subscription automatically renew or terminate upon expiration of the Term. Automatic renewal is pre-selected. Customer can change its selection at any time during the Term. If the existing Term is longer than one calendar month, SENORICS will provide Customer with notice of the automatic renewal before the expiration of the Term.

6.4       For Consumption Offerings, Customer’s Subscription will renew automatically for additional one-month terms until you terminate the Subscription.

6.5       For Limited Offerings, automatic renewal may not be permitted but by separate agreement.

  1. DURATION OF THIS AGREEMENT, TERMINATION AND SUSPENSION.

7.1       This Agreement shall become operative and effective upon the Effective Date, and will continue in effect for a term of one (1) year from the Effective Date and shall automatically renew for additional and successive one (1) year terms annually on the successive anniversary of the initial Term, unless either Party provides at least three (3) months prior written notice of non-renewal to the other Party.

7.2       SENORICS may suspend Customer’s use of the Online Services if: (1) it is reasonably needed to prevent unauthorized access to Customer Data; (2) Customer does not pay amounts due under this Agreement; (3) Customer violates terms of this Agreement; or (4) for Limited Offerings, the Subscription becomes inactive from Customer’s failure to access the Online Services as described in the offer details. If one or more of these conditions occurs, then:

7.2.1     For Limited Offerings, SENORICS may suspend Customer’s use of the Online Services, Customer’s Subscription and Customer’s account immediately without notice.

7.2.2     For all other Subscriptions, a suspension will apply to the minimum necessary part of the Online Services and will be in effect only while the condition or need exists. SENORICS will give notice before SENORICS suspend. SENORICS will give at least 30 days’ notice before suspending for non-payment. If Customer does not fully address the reasons for the suspension within 60 days after SENORIC has suspended Customer’s use, SENORICS may terminate Customer’s Subscription and delete the Customer Data without any retention period. SENORICS may also terminate Customer’s Subscription if Customer’s use of the Online Services is suspended more than twice in any 12-month period.

7.3       Either Party shall be entitled to immediately terminate this Agreement for good cause. A good cause for termination shall be deemed existent in case of a material breach of an essential contractual obligation by the other Party. An essential contractual obligation of Customer in this context shall e.g. mean Customer’s compliance with essential restrictions of the licenses as provided for in this Agreement on whose compliance SENORICS can resonably rely and is entitled to rely on in view of its position as copyright owner of the Software. Any termination according to this must be made in writing.

7.4       Upon expiration or termination of this Agreement, Customer shall ensure that all other contractual relationships dependent on this Agreement or the Products, whether authorized by SENORICS or not, shall cease at the same time, and shall therefore notify any such counterparts in writing thereof. For purposes of clarification, this section shall not apply to permanent and fully paid-up End User licenses for any Integrated Product previously distributed by Customer.

7.5       Upon expiration or termination of the Agreement, any and all business documents made available to Customer by SENORICS, together with the copies made thereof (including but not limited to engineering documents and drawings, price lists, advertising material) shall be returned to SENORICS within thirty (30) days of such expiration or termination. In the event that such documents are required for the performance of binding offers pending and of orders already received, such documents shall be returned immediately upon complete performance thereof.

7.6       Upon expiry or termination of this Agreement, Customer shall immediately cease all use of the Products and irreversibly delete all copies of the Software residing on electronical and magnetic data carriers. Unless SENORICS does not request Customer to return any remaining physical copy of the Software within two (2) weeks after the date of expiry or termination of this Agreement, Customer shall erase/destroy any such copy immediately after expiry of this period and provide written notice and proof of such destruction to SENORICS immediately upon completion.

  1. QUALITY OF ONLINE SERVICES AND SHORTFALLS.

8.1       Online Services will meet the terms of the SLA during the Term specified in the OSPPT. Services will be provided by SENORICS in a workmanlike manner. Unless otherwise stated herein, SENORICS’ liability and Customer’s exclusive remedy, whether in contract, tort or otherwise for any claim related to or arising out of the breach of a warranty covering Services will be re-performance or credit, at SENORICS’ option.

8.2       Any complaints about shortfalls and other breaches of this Agreement shall be made in writing without undue delay, submitting a detailed description of the defect or, if this is not possible, of the nature of the problem, and provide (i) any data, configuration information, and copies of all programs used by Customer in making its determination that a defect exists, and (ii) any information useful for rectification of the defect and available to Customer. Defect verifications, if any, shall be conducted at Customer’s or SENORICS’s place of business, as determined by SENORICS.

8.4       SENORICS shall at its discretion and within a reasonable time after receiving notification from Customer of substantial breaches detected in the Online Services (i) rectify the shortfall, (ii) replace the defective Sensor Device or Software with a product offering substantially similar functionality, or (iii) reveal adequate and reasonable ways to work around the effects of the defect. If such efforts fail, Customer shall have the right to rescind the affected delivery or request a reasonable reduction of the fee paid or to be paid to SENORICS for the affected delivery.

8.5       SENORICS shall have no obligation or duty to Customer with respect to any shortfall nor to any defects in title or any alleged infringement of rights, if the alleged material shortfalls, defects in title, or infringement of rights are based, in whole or in part on (a) any alteration or revision of the Product by Customer or anyone on its behalf, (b) any combination by Customer or anyone on its behalf of the Product with a software or hardware product, program, data or other form of Intellectual Property rights not created by, licensed to, licensed by, or Distributed by SENORICS, (c) any use of the Products in a system environment not approved by SENORICS, (d) an unauthorized use of an outdated version of the software, in particular if Customer continues the infringing use although it was requested to discontinue the use and a modified version of the Product was made available to Customer, or (e) any use of the Product in a manner for which it was not intended.

8.7       The Software may contain software components that are licensed as Open Source Software (hereinafter referred to as “Open Source Components”). Such Open Source Components are specified in Exhibit 3 and will be disclosed to Customer in case of subsequent integration. Materials of Open Source Components will be handed over to Customer on a data carrier together with the copyright notices, disclaimers, and any other notes. The rights of use and obligations to pass on the Open Source Components are governed by the respective open source licenses and this Agreement applies to such Open Source Components only to the extent, as it does not contradict such applicable open source license.

  1. LIMITATION OF LIABILITY.

9.1       The liability of both Parties for damages which are based on a slightly negligent breach of an obligation by its own employees as well as a slightly negligent breach of an obligation by a legal representative or vicarious agent of a Party, is limited to the contract-typical, foreseeable damage.

9.2       The aforementioned limitation of liability in subsection 6.1 shall not apply if the breach of a material obligation (“Kardinalpflicht”) that enables the proper execution of the Agreement in the first place and on the fulfilment of which the respective contractual Party may rely.

9.3       Notwithstanding anything in this Agreement to the contrary, SENORICS may only be liable for monetary damages to Customer in the event of a finding of (i) SENORIC’s wilful tortious behaviour or gross negligence; (ii) a material defect that causes an injury to a person’s life, body or health; (iii) an explicit assumption of a guarantee for the condition of the Product (“Garantie” in the meaning of (§ 443 BGB); or iv) a violation of the Product Liability Act.

9.4       Customer shall take adequate precautionary measures against the loss or damage of data and programs, in particular by making back-up copies of all programs and data in machine-readable form. 

  1. CONFIDENTIALITY.

10.1      Neither Party will disclose to any person or entity any information or data fixed in a tangible medium and marked as the confidential or proprietary information of the disclosing party or any information disclosed as a result of the parties’ discussions, visually or orally, and that should reasonably have been understood by recipient, because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the disclosing party (collectively “Confidential Information”). Confidential Information will expressly include any and all information derived from the Confidential Information. The recipient shall treat Confidential Information as confidential and proprietary to the disclosing party and prohibit copying and use such Confidential Information only in connection with fulfilling its obligations under the Agreement.

10.2      Customer will not use SENORICS Confidential Information to assist in creating or attempting to create by reverse engineering or otherwise, the Software, hardware designs or manufacturing processes from Product provided or to make a new Product or system, or repair any Product or system except as necessary to support the use of any Product supplied by SENORICS. The recipient will return all Confidential Information to the disclosing party upon disclosing party’s written request.

10.3      The parties’ obligations under this Section will survive the termination, cancellation or final payment of any or all purchase orders. All drawings, data, designs, tooling, equipment, procedures, engineering changes, inventions, trade secrets, copyrights, mask works, source code, object code, patents, patent applications, know-how, computer and/or Software and all parts thereof, trademarks and all other information, technical or otherwise which was developed, made or supplied by or for SENORICS in the production of any Product or the performance of any Service sold, rendered or licensed hereunder, including any and all derivative works, will be and remain the sole property of SENORICS (or its licensors, if any) and SENORICS may use them for any purpose and for any other person or entity, including SENORICS. Customer will not reverse engineer any Products.

  1. SENORICS SOFTWARE LICENSE AGREEMENT.

All Software or documentation offered for use of the Online Services is an offer to grant a license to Customer and subject to SENORICS’ End User Software License Agreement available upon request and located at: http://www.senorics.com/eula).

  1. GENERAL PRODUCT SAFETY STATEMENT.

SENORICS Products, to the best of its knowledge, comply with national and international safety standards in as much as they apply to materials and structural testing. Because of the wide range of applications which SENORICS Products are used, and over which SENORICS has no control, additional protective devices and operating procedures may be necessary due to specific accident prevention regulations, safety regulations, further directives or locally valid regulations. The extent of SENORICS’ delivery regarding protective devices is defined in the respective quotation. SENORICS is free of liability in this respect. SENORICS strongly recommends that the Customer conduct its own product safety risk assessments. At Customer’s request, SENORICS will provide advice and quotations for additional safety devices such as protective shielding, warning signs and methods of restricting access to the Product.

  1. SITE PREPARATION AND CONDITION FOR SERVICES.

If applicable, prior to the date specified in the quotation or statement of work for the performance of Service, Customer will (a) obtain and pay for all governmental or third party consents, permits, approvals, licenses and public and private easements necessary for SENORICS’ unrestricted access to any site or location needed for performance of the Services and delivery of the Product, and (b) notify SENORICS in advance of any requirements including all local laws, regulations and/or ordinances to which SENORICS is or will be required to comply in the rendering of Services and in the supplying of Product hereunder. Customer shall be solely responsible for preparation of the site, at which SENORICS will perform the Services, to the specifications and in accordance with the time schedule stated in the quotation or statement of work. Customer warrants to SENORICS that each such site is in compliance with all applicable health and safety regulations and is free from all asbestos and hazardous contamination or pollutants.

  1. CUSTOMER’S DEFAULT.

SENORICS may, upon written notice to Customer, cancel any or all orders or agreements effective immediately if: (a) in SENORICS’ opinion, Customer’s financial condition deteriorates to be detrimental to SENORICS’ interest hereunder; (b) Customer fails to perform any obligations under these terms and such failure is not remedied within fifteen (15) calendar days after notice has been given to Customer; (c) Customer fails to pay in accordance with any invoice payment terms; or (d) any change occurs in the direct or indirect ownership of Customer if, in SENORICS’ opinion, such change may be detrimental to SENORICS’ interest hereunder. Any cancellation pursuant to this Section will be in addition to and will not be exclusive of or prejudicial to any other rights or remedies at law or in equity available to SENORICS.

  1. INTELLECTUAL PROPERTY INFRINGEMENT.

If any SENORICS Product becomes the subject of a claim of infringement of any copyright or patent, SENORICS shall, at its option and expense, either: (a) modify it to make it non-infringing; (b) settle such claim by procuring for Customer the right to continue using the Product; or (c) defend Customer against such claim, provided however, that the Customer gives SENORICS prompt written notice of all facts and circumstances necessary or desirable for a proper defense of the claim. SENORICS will not be responsible for any settlement made without its written consent

16.       MISCELLANEOUS.

16.1      Force Majeure. No Party shall be liable for delay in performance or failure to perform its obligations in whole or in part pursuant to the terms of this Agreement due to causes reasonably beyond the control of such Party, including but not limited to labor dispute, strike, labor shortage, war or act of war (whether an actual declaration is made or not), military engagement against terrorist organizations or similar operations, insurrection, riot or civil commotion, act of public enemy, accident, fire, flood or other act of God, act of any governmental authority, approval(s) of any modifications or alterations of this Agreement by any competent authority, restrictions imposed by regulatory agencies or bodies, judicial action, technical failure where such Party has exercised ordinary care in the prevention thereof, or other causes beyond the control of such Party, whether or not similar to the matters herein enumerated and whether or not provided for by applicable law, and any such delay or failure shall not be considered a breach of this Agreement.  Notwithstanding the foregoing, a claim of Force Majeure may not be made in connection with payments of amounts due hereunder or any subsequent order made under this Agreement.

16.2      Non-Waiver. The failure to enforce or the delay in enforcement of any provision, right or option of this Agreement by any Party hereto shall in no way be construed to be a waiver of such provision, right or option, nor shall such action be deemed a waiver of any other right which that Party may otherwise have at law or in equity.

16.3      Notices. All notices, requests, consents, and other communications, required or permitted to be given hereunder, shall be in writing and shall be deemed to have been duly given one business day after the day in which it was delivered by email, facsimile, personally or hand delivered by an international courier service (DHL, FEDEX, UPS). Notices shall be addressed to the Parties’ address as above stated, or to such address as each Party shall have notified the other Party in writing.

16.4      Export Restrictions. Each Party hereby agrees to comply with all U.S., European, German, and any other applicable export laws and regulations, and not to export or allow the export or re-export, directly or indirectly, of any proprietary information or software or any copy or direct product thereof in violation of any such restrictions, laws or regulations, to any destination to which such export or re-export is restricted or prohibited by applicable law.

16.5     Copies; Headings; Expenses.   This Agreement may be executed in separate counterparts and sent via mail, email or facsimile, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. The headings in this Agreement are solely for convenience of reference and shall not affect the interpretation of any of the provisions hereof. Each of the Parties hereto shall bear such Party’s own expenses in connection with the negotiation and execution of this Agreement.

16.6      Entire Agreement; Modifications.  This Agreement, and all the exhibits and addenda thereto (which are identified below and incorporated herein by reference), contains and constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof, and no modification, amendment, change, or supplement shall be effective unless in writing and signed by the Parties hereto. This Agreement supersedes all prior understandings, negotiations, and agreements between the Parties relating to the subject matter hereof.

16.7      Waiver. The waiver by either Party of a breach or default of any provisions contained herein shall be in writing and shall not be construed as a waiver of any succeeding breach or default or of the provision itself.

16.8      Governing Law; Jurisdiction; Venue.  This Agreement and matters arising out of or relating to the performance hereof, or the obligations hereunder shall be construed, interpreted, applied and governed in all respects in accordance with the laws of the Federal Republic of Germany, without regard to its conflicts of law provisions, but paying regard to the use of English as a language of concession. If any term of the Agreement is open to interpretation or its meaning has been specified in German language within brackets, the intended German meaning shall prevail without recourse to English or any other law. The application of the provisions of the United Nations Convention on Contracts for the International Sale of Good (CISG) shall be excluded.

16.9      Binding Effect; Assignment.  This Agreement shall be binding upon and inure to the benefit of SENORICS and CUSTOMER and each of its respective parent companies, subsidiaries, successors and permitted assigns. CUSTOMER may not assign its rights and obligations hereunder without the prior written consent of SENORICS. 

16.10    Independent Contractors.  Nothing in this Agreement shall create any association, employment relationship, partnership, agency, joint venture or similar relationship between the Parties hereto, it being understood and agreed that the Parties are independent contractors and neither Party shall have the power or authority to obligate the other in any way. CUSTOMER hereby accepts and confirms SENORICS’s exclusive rights in and ownership of the Products, including but not limited to any Improvements in the Products, and SENORICS’s exclusive rights of use and exploitation thereof with respect to third parties. In addition, CUSTOMER herewith accepts and confirms SENORICS’s trademark, name, copyrights, and patent rights relating to the Products and the associated documentation and SENORICS’s exclusive ownership of such trademarks, name, copyrights, and patent rights vis-à-vis third parties.  CUSTOMER agrees to take no action, directly or indirectly, to contest or impair SENORICS’s ownership, right, title or interest in or to the Products, SENORICS’s Intellectual Property, or any registrations pertaining thereto.

16.11  Severability. If any term or provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall be modified to the extent necessary to bring such provision into compliance with applicable law and shall not thereby affect any other provision or provisions of this Agreement.  In the event that modification of such provision is not possible, such provision or provisions shall be ineffective only to the extent of such invalidity, illegality or unenforceability, without invalidating the remainder of such provision or provisions or the remaining provisions of this Agreement.  In such case, this Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change as to cause performance by a Party to be unreasonable.

16.12    Undertakings. Until three (3) years after the date of termination or expiration hereof, each Party agrees that it will not, directly or indirectly, solicit, interfere with, try to entice away, or hire (directly, indirectly, or on a part-time or contract basis) any employee (including any contractor or subcontractor) of the other Party.  This provision shall not apply to newspaper, Internet, or similar employment solicitations directed to the public at large.

16.13    Data Protection. Notwithstanding anything to the contrary in this Agreement, all obligations of Customer pertaining to Data Privacy Laws and as applicable to Customer’s Affiliates, End Users, clients, customers and other third parties including but not limited to affected persons within the meaning of the Data Privacy Laws resulting from the use or operation of the Integrated Products, services provided or the use of or operation of the Integrated Products shall be the sole responsibility Customer or its Affiliate.