Master Services Agreement

‍THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) IS BETWEEN YOU AND OPENSENSE, INC., A DELAWARE CORPORATION AND THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.

BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR OTHERWISE AGREEING TO THIS MASTER SERVICES AGREEMENT WHEN SUCH OPTION IS MADE AVAILABLE TO YOU, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT EFFECTIVE AS OF THE DATE OF SUCH ACTION. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES.

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You may not access the Services if You are Our direct competitor, without Our prior written consent.

1. DEFINITIONS

• ~“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
• ~“Documentation” means the Service Description, user guides, blog posts, and other technical and operations documents and specifications for the Services located on the https://help.opensense.com/ (“Website”) as updated from time to time. You acknowledge that You have had the opportunity to review the Documentation.
• ~“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
• ~“Services” means the products and services made available by Us online via the customer login link at Website and/ or other web pages designated by Us, including associated offline components, as described in the Documentation. “Services” exclude Third-Party Applications.
• ~“Service” means a Service to the Services based on the Services offerings and prices listed at Website.
• ~“Order Form” means the invoice or online form used for placing orders, including the type and number of Services.
• ~“Service Term” means the term of a Service as set forth in the applicable Order Form.
• ~“Service Description” means the description of the features, functions, pricing, limitations, and restrictions (including acceptable use policies and the service terms for specific Services) associated with a Service and located at Website, as updated from time to time.
• ~“Third-Party Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services.
• ~“Users” means individuals who are authorized by You to use the Services, for whom Services to a Service have been ordered. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
• ~“We,” “Us,” “Our” or “Company” means Opensense, Inc. and its Affiliates.
• ~“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
• ~“Your Data” means all electronic data or information submitted by You to or made available by You to and collected by Us as part of, the Purchased Services.
• ~“Your Systems” means the systems, tools or applications (including those developed by, or licensed from, a third party) made available by You to the Services.‍

2. PROVISION OF SERVICES

• ~We shall make the purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a Service Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

3. SERVICES.

• ~Unless otherwise specified in the applicable Order Form, (i) Services may be accessed by no more than the specified number of Users specified in the Order Form, (ii) additional Services may be added during the applicable Service Term at the same pricing as that for the pre-existing Services thereunder, prorated for the remainder of the Service Term in effect at the time the additional Services are added, and (iii) the added Services shall terminate on the same date as the pre-existing Services. Unless otherwise specified in the applicable Order Form, Services are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

4. USE OF THE SERVICES

• 4.1. Our Responsibilities.
• ~We shall: (i) provide Our basic support for the purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the purchased Services available with at least 99.9% uptime (unless otherwise purchased on Order Form), except for: (a) planned downtime (of which We shall give at least eight (8) hours notice via the purchased Services and which We shall schedule to the extent practicable during the hours from 11:00 p.m. to 5:00 a.m. Eastern Time) and whenever possible on non-business days, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the purchased Services only in accordance with applicable laws and government regulations.
• 4.2. Your Responsibilities.
• ~You shall: (i) be responsible for Users compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) be responsible for ensuring that Your Systems meet the specifications set forth in the Documentation, (iv) be responsible for providing Us with the right to access and use Your Data and Your Systems, solely as necessary for Us to provide the Services in accordance with this Agreement, (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (vi) use the Services only in accordance with the Documentation and applicable laws and government regulations. You shall not: (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
• 4.3. Usage Limitations.
• ~Services may be subject to other limitations, such as, for example, limits on disk storage space, API usage and other limitations as specified in the Documentation.‍

5. DATA PROTECTION‍

• 5.1. Our Protection of Your Data.
• ~We shall design, engineer, and maintain appropriate administrative, physical, and technical safeguards, in accordance with industry practice, for protection of the security, confidentiality and integrity of Your Data. We shall not: (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 6.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
• 5.2. Our Limited Rights to Your Data and Systems.
• ~Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or Your Systems, including any intellectual property rights therein.
• 5.3. Processing subject to Privacy & EU General Data Protection Regulation
• ~Notwithstanding the aforementioned, if you as a data controller are subject to the EU General Data Protection Regulation, Regulation (EU) 2016/679, Parties have agreed to enter into a data process or agreement prior to any processing of Your Data. The data processor agreement (DPA) is attached to this Agreement (https://opensense.com/dpa) and together with its schedules, forms, and terms is an integral part of this Agreement.
• 5.4. Encryption.‍
• ~We agree to store all Your backup data as part of its designated backup and recovery processes in encrypted form, using a commercially supported encryption solution. We further agree that any and all of Your Proprietary Data which is owned or controlled by You, to which We have access and/or otherwise processes during the provision of the Services, including, without limitation, data that is explicitly defined as a regulated category of data under current data privacy legislation or regulations applicable to You and stored on any computing device or any storage medium be likewise encrypted in-transit and at rest. All data sent to or from Opensense is encrypted using TLS (v1.2 or later), and all customer data is encrypted using 256-bit ciphers.

6. CONFIDENTIALITY‍

• 6.1. Definition of Confidential Information.
• ~As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data and Your Systems; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data and Your Systems) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with Your evaluation of additional services offered by Us from time to time.
• 6.2. Protection of Confidential Information.
• ~The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
• 6.3. Compelled Disclosure.
• ~The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7. THIRD-PARTY APPLICATIONS‍

• ~The Services may contain features designed to interoperate with Third-Party Applications. To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.

8. FEES AND PAYMENT FOR PURCHASED SERVICES

• 8.1. Fees.
• ~You shall pay all undisputed fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, except as otherwise provided in this Agreement, and (iii) the number of Services purchased cannot be decreased during the relevant Service Term stated on the Order Form. Unless specified otherwise in the applicable Order Form, Service fees are based on annual periods that begin on the Service start date and each anniversary thereof; therefore, fees for Services added–including overages or increased seat counts–in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Service Term. On each annual anniversary date of the Term, the fees may increase by a mutually agreed upon amount.
• 8.2. Invoicing and Payment.
• ~If You provide credit card or bank information to Us, You authorize Us to charge such credit card or withdraw such funds via ACH for all Services listed in the Order Form for the initial Service Term and any renewal Service Term(s) as set forth in Section 13.2 (Term of Purchased Services).Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card or ACH, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Services will only become active upon payment receipt. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
• 8.3. Overdue Charges & Suspension of Service.
• ~If any undisputed charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) we may, upon providing ten (10) days prior notice to You, suspend Our services to You until such charges are paid in full. You acknowledge that the Services will be substantially disrupted, and You will be prohibited from sending any and all emails upon such suspension. As such, We will assume no liability for such disruption of the Services beyond anon-payment period of one-hundred twenty (120) days of properly invoiced and undisputed balances.
• 8.4. Payment Disputes.
• ~We shall not exercise Our rights under Section 8.3 (Overdue Charges & Suspension of Service) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
• 8.5. Taxes.
• ~Unless otherwise stated, Our fees do not include any applicable taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all applicable Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

9. PROPRIETARY RIGHTS

• 9.1. Reservation of Rights in Services.
• ~Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights, including but not limited to, copyright, trademark, patent rights. No rights are granted to You hereunder other than as expressly set forth herein. We, subject to the terms and conditions of and except as otherwise provided in this Agreement, grants to You a limited, non-exclusive, non-transferable, non-sublicensable, and non-assignable right to access and use the Services solely for Your own purposes during the Term of this Agreement. You have no rights in or to the Services except as expressly granted in this Agreement. As between the parties, You acknowledge that the Services, all copies of the Services, any derivative works, compilations, and collective works of the Services, and any know-how and trade secrets related to the Services are the sole and exclusive property of the Company and contain the Company’s confidential and proprietary materials, more fully outlined in Section 6.  Subject to Section 4.2, You hereby grant to the Company a, limited, non-exclusive, non-transferable, non-sublicensable and non-assignable, license to host, copy, transmit and display the Your Data, (i) as necessary for the Company to provide the Services in accordance with this Agreement, and (ii) as part of aggregated and anonymized information for any purpose and at any time. Without limiting the foregoing, Company shall have the perpetual, worldwide right and license, at no additional cost, to use, edit and exploit any content that Client or Authorized User creates through use of the Services, in any manner and media (now known or hereafter devised), in Company’s sole discretion, solely in connection with (ii) any archival and internal business purposes.
• 9.2. Restrictions.
• ~You shall not: (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to: (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
• 9.3. Your Applications and Code.
• ~If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
• 9.4. Suggestions.
• ~We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

10. WARRANTIES AND DISCLAIMERS

• 10.1. Our Warranties.
• ~We warrant that: (i) We have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the Documentation, and (iii) subject to Section 7 (Third-Party Applications), the functionality of the Services will not be materially decreased during a Service Term. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 13.3 (Termination for Cause) and Section 13.4 (Refund or Payment upon Termination) below.
• 10.2. Your Warranties.
• ~You warrant that You have validly entered into this Agreement and have the legal power to do so.
• 10.3. Disclaimer.
• ~EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANT’S ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
• 10.4. Beta Services.
• ~From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Beta Services”). You may accept or decline any such trial in Your sole discretion. Any Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Beta Services at any time in Our sole discretion and may never reinstate them.

11. MUTUAL INDEMNIFICATION

• 11.1. Indemnification by Us.
• ~We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that arise out of or resulting from (i) the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), or (ii) our performance under this Agreement, or (iii) our violation of any laws and regulations  and shall defend, indemnify and hold harmless You from and against any damages, attorney fees and costs against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You: (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You without your prior approval unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You: (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under Section 10.1 (Our Warranties) above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your Services for such Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User Services after the effective date of termination.
• 11.2. Indemnification by You.
• ~You shall defend, indemnify and hold harmless Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that (i) Your Data, (ii) Our use of Your Systems to provide the Services in accordance with this Agreement, or (iii) Your use of the Services in breach of this Agreement, Your Data infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; except to the extent caused by our gross negligence or willful misconduct; provided that We: (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
• 11.3. Exclusive Remedy.
• ~This Section 11 (Mutual Indemnification)states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

12. LIMITATION OF LIABILITY

• 12.1. Limitation of Liability.
• ~EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATION, CONFIDENTIALITY OBLIGATIONS,  OR, IN THE CASE OF EITHER PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION, EITHER PARTY AND THEIR SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR LOSS OR CORRUPTION OF DATA OR THE COST OF PROCURING SUBSTITUTE SOFTWARE OR (B) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO US FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 8 (FEES AND PAYMENT FOR PURCHASED SERVICES).
• 12.2. Exclusion of Consequential and Related Damages.
• ~IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.‍

13. TERM AND TERMINATION

• 13.1. Term of Agreement.
• ~This Agreement commences on the date You accept it and continues until all Services granted in accordance with this Agreement have expired or been terminated.
• 13.2. Term of Purchased Services.
• ~Services purchased by You are activated and commence upon payment receipt and continue for the Term specified therein. Except as otherwise specified in the applicable Order Form, Services may be renewed at mutually agreeable terms unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Service term. We shall provide You written notice of any pricing change at least thirty (30) days before the end of the current term, in which case the pricing change shall be effective upon renewal and thereafter.
• 13.3. Termination for Cause.
• ~A party may terminate this Agreement for cause immediately upon written notice to the other party thereof: (i) if the other party materially breaches its obligations under this Agreement and, after receiving written notice identifying such material breach in reasonable detail, fails to cure such material breach within 30 days from the date of its receipt such notice; provided, however, in the case of a material breach that cannot reasonably be cured within such 30-day period (which shall necessarily exclude, for the avoidance of doubt, any payment default), the non-breaching party may terminate this Agreement following such 30-day period only if the breaching party shall have failed to commence substantial remedial actions within such 30-day period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
• 13.4. Refund or Payment upon Termination.
• ~Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all Services after the effective date of termination. Upon any termination for cause by Us, You shall be obligated to pay unpaid fees covering the term of all Order Forms until the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
• 13.5. Exporting Your Data upon Termination.
• ~For a period of 30 days after the effective date of termination of a Purchased Services Service, You will be able to access Your Data for purposes of exporting Your Data. After such 30-day period, We shall have no obligation to maintain or provide access to any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control. Therefore, You must export Your Data within 30 days after the effective date of termination or Your Data will be permanently lost.
• 13.6. Surviving Provisions.
• ~Section 6 (Confidentiality), 8 (Fees and Payment for Purchased Services), 9 (Proprietary Rights), 10.3 (Disclaimer), 11 (Mutual Indemnification), 12 (Limitation of Liability), 13.4 (Refund or Payment upon Termination), 13.5 (Exporting Your Data upon Termination), this 13.6 (Surviving Provisions), 14 (Notices, Governing Law and Jurisdiction) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.‍

14. NOTICES, GOVERNING LAW AND JURISDICTION

• 14.1. Manner of Giving Notice.
• ~Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery or (ii) the first business day after sending by email (provided email shall not be sufficient for an indemnifiable claim), certified or registered mail (in each case, return receipt requested) or nationally recognized overnight courier (with all fees prepaid). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
• 14.2. Governing Law and Jurisdiction.
• ~This Agreement shall be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Delaware except for its conflicts of laws principles. Each party irrevocably consents and submits to the exclusive jurisdiction of the courts of any state or Federal court sitting in the State of Delaware, in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach or default under this Agreement, or otherwise arising under or by reason of this Agreement.
• 14.3. Waiver of Jury Trial.
• ~Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

15. GENERAL PROVISIONS

• 15.1. Relationship of the Parties.
• ~The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
• 15.2. No Third-Party Beneficiaries.
• ~There are no third-party beneficiaries to this Agreement.
• 15.3. Waiver.
• ~No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
• 15.4. Severability.
• ~If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
• 15.5. Attorney Fees.
• ~You shall pay on demand all of Our reasonable attorney fees and other documented, out of pocket costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 8.2 (Invoicing and Payment).
• 15.6. Assignment.
• ~Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
• 15.7. Entire Agreement.
• ~This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void unless specifically noted on the Order Form.

For information on or questions about or notices for this Master Services Agreement, contact legal@opensense.com.

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