TERMS & CONDITIONS
August 25, 2016
These Terms and Conditions (the “Agreement”) outlines the terms and conditions applicable to your purchase, use and remedies available for the following Sensera Systems products and services:
● MC‐xx products, SW‐xx products ‐ MultiSense Cameras and SiteWatch systems and related products
● Cloud Service – Mobile and WiFi MultiSense Cloud Service plans
● Renting – Rentals of MC‐xx products
● Website – user of Sensera Systems websites (www.senserasystems.com, webapp.senserasystems.com)
● Buyer – shall mean Buyer and/or final user of the Products and/or Services for its own internal use.
● End User – shall mean the Buyer and any contractors, employees, or affiliated parties that are authorized by the Buyer to use the Products and/or Services.
● Website – shall mean www.senserasystems.com and webapp.senserasystems.com
● Website User – any user of Website
● WebApp – will mean the web application and related web server system, which in part delivers Service and provides certain features of Product and Service.
● Service(s) – shall mean the Cloud Service (mobile or WiFi), including use of WebApp and Website.
● Products ‐ shall mean any SENSERA products used with Service (“SENSERA Devices”).
● Carrier – means wireless carrier or carriers that may be providing cellular connectivity as part of Service.
1 BINDING AGREEMENT EXCEPT AS OTHERWISE PROVIDED BELOW
THE FOLLOWING TERMS AND CONDITIONS (COLLECTIVELY, THIS “AGREEMENT”) SHALL APPLY TO THE PURCHASE OR USE OF ANY PRODUCTS AND/OR RELATED SERVICES BY ANY PARTY FROM SENSERA SYSTEMS INC (“SENSERA”) OR AN AUTHORIZED RESELLER (RESELLER”). BUYER’S ACCEPTANCE OF DELIVERY OF ANY PRODUCTS, OR PAYMENT OF ANY PART OF THE PRICE, UNDER ANY PURCHASE ORDER PLACED WITH SENSERA OR A RESELLER SHALL CONSTITUTE ITS EXPRESS ASSENT TO THIS AGREEMENT. ANY PERSON (“USER”) USING THE SERVICE AT THE REQUEST OF BUYER, INDICATED BY LOGGING IN OR ACCESSING THE SERVICE, WILL SERVE AS USER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS. BUYER SHALL BE LABLE FOR ANY BREACH OF THESE TERMS AND CONDITIONS BY A USER. THIS AGREEMENT SHALL SUPERSEDE ANY INCONSISTENT OR CONTRADICTORY TERMS OR CONDITIONS, EXPRESSED OR IMPLIED, IN ANY AND ALL REQUESTS FOR QUOTATIONS, PURCHASE ORDERS, ACKNOWLEDGEMENTS, CONFIRMATIONS OR OTHER PROCUREMENT DOCUMENTS (IN WHATEVER FORM OR MEDIUM) EXCHANGED BETWEEN BUYER, USER, OR WEBSITE USER AND SENSERA (COLLECTIVELY, “PROCUREMENT DOCUMENTS”). NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THIS AGREEMENT AND ANY SEPARATE WRITTEN AGREEMENT SIGNED BY AN AUTHORIZED OFFICER OF EACH OF BUYER AND SENSERA (“SIGNED AGREEMENT”), THE TERMS AND CONDITIONS OF SUCH SIGNED AGREEMENT SHALL CONTROL AND SUPERCEDE THIS AGREEMENT EXCLUSIVELY AS IT RELATES TO THE PURCHASE OR USE OF THE PRODUCTS OR SERVICES. NO ADDITIONAL TERMS OR CONDITIONS APPEARING IN ANY PROCUREMENT DOCUMENTS SHALL BE BINDING ON SENSERA UNLESS SUCH ADDITIONAL TERMS OR CONDITIONS ARE APPROVED IN WRITING BY AN AUTHORIZED OFFICER OF SENSERA, OR ARE OTHERWISE INCLUDED IN A SIGNED AGREEMENT. IN THE EVENT THAT YOU PURCHASED A PRODUCT FROM A RESELLER AND NOT SENSERA DIRECTLY, ANY REFUNDS OR RETURNS MUST BE INITIATED WITH THE RESELLER FROM WHOM YOU ACQUIRED THIS PRODUCT.
2 TERMS OF SERVICE SENSERA offers Service on a recurring monthly, and fixed short‐term basis.
SENSERA agrees to provide Buyer the purchased Cloud Service, where Service coverage is available, at the rates, term and frequency provided at the time of purchase from Sensera or a Reseller.
2.1 ACTIVATION, DEACTIVATION, TERMINATION
Service will begin when the Product is able to communicate with the Could Service (“Activation Date”). For recurring monthly plans, SENSERA requires a minimum of five (5) business days’ notice to terminate or suspend service (“Deactivation Date”). Charges for the service during the month of termination are non‐refundable. For fixed‐period Service plans, Service will be terminated at the end of such Service Plan. No refunds shall be provided if Buyer elects to terminate prior to the end of the fixed‐period service plan. Buyer may buy additional Fixed‐period service plans or activate a recurring monthly service from Sensera prior to termination or expiration of the fixed‐period service plan.
2.2 RECURRING MONTHLY SERVICE
Recurring Monthly Service has an initial term of 1 month and starts on the Activation Date and will renew automatically each month on the first of each month (“Billing Date”) until Buyer has provided Sensera with a Deactivation Date. Buyer will be able to use Service for any consecutive monthly period that has been paid in advance (or that has been paid in accordance with any different payment schedule that may be specified or agreed in writing as part of a particular rate plan).
2.3 DATA USAGE AND OVERAGES
Some Service plans include a monthly data limit. Data usage can be affected by various Product configurations and usages of the product including time lapse picture frequency, on‐demand pictures, videos, alerts, picture resolution. SENSERA Service includes monitoring, display, and alerting when user Service plans are approaching data limits. Buyer is ultimately responsible for modifying Product configurations so that Data usage remains within plan limits. Buyer will be charged for any Data overages according to the agreed Rate Plan overage terms in effect on the date of any overage.
2.4 SERVICE AVAILABILITY
Coverage maps provide estimated wireless coverage areas outdoors; actual Service area, coverage and quality may vary and change without notice depending on a variety of factors including network capacity, terrain and weather. Outages and interruptions in Service may occur, and speed of Service varies. You agree that SENSERA is not liable for problems relating to Service availability or quality.
To provide the best possible service to its customers, SENSERA periodically performs maintenance on its network. In some cases, this may require SENSERA to conduct either a planned or unplanned interruption of the Service. SENSERA will use commercially reasonable efforts to schedule maintenance outages in a way that minimizes the impact on customers, but SENSERA cannot guarantee that your Service will not be interrupted and cannot always give advance notice of such outages. You acknowledge and agree that SENSERA shall not be responsible for any losses or damages (of any kind) that may be suffered by you as a result of any Service interruptions due to maintenance outages.
3 BILLING AND PAYMENT
3.1 BILLING FOR RECURRING SERVICE PLANS
For recurring Service Plans, one month of Service along with any portion of a month from the Activation Date to the Billing Date shall be due and payable at time of purchasing the Service. Recurring service plans will be invoiced on Billing Date for Service to be delivered that month. Recurring Service plans must have a valid credit card on file, unless otherwise agreed in writing between Buyer and SENSERA. Credit cards will be charged at Billing Date. Invoices not paid within 30 days of invoice date will be considered past due.
All prices and payments for products and services sold by SENSERA to Buyer will be in United States Dollars. Payment terms are, at SENSERA’s sole discretion, either cash in advance or cash on delivery, or where SENSERA expressly approves of an open credit arrangement, payment will be net thirty (30) days from the date of invoice. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate allowed under law, whichever is lower. SENSERA reserves the right to terminate performance of the Service for any Buyer who has accounts that are past due. Buyer must pay in advance for any amounts past due, along with any costs or expenses incurred by SENSERA in connection with reactivation of the Services or any related collection expenses, prior to reactivation of the Service.
All products will be shipped by SENSERA Free on Board (“FoB Origin”) Golden, Colorado. Title and risk of loss or damage to all products purchased under this Agreement will pass to Buyer upon shipment by SENSERA. Unless otherwise agreed in writing, SENSERA will select the carrier, the mode of shipment, the packaging and the extent of any insurance against loss or damage to the products during shipment, and the Buyer will be responsible for paying all transportation and insurance charges including any customs fees or duties. Depending on the availability of products in stock, SENSERA may delay delivery or make partial shipments of, and require partial payment for, the quantity of products specified in any accepted purchase order. Buyer is responsible for transportation and insurance charges for return of any Products to SENSERA whether for repair, or return at termination of Rental.
Products purchased can be returned to the party from whom you purchased the Product within 14 days of purchase. Buyer may return the complete, undamaged, device in its original packaging and all of its components along with the original receipt. Buyer is responsible for any Service fees incurred prior to return or Deactivation.
3.5 RENTED PRODUCTS SENSERA may offer certain products under rental. Buyer agrees to pay for any rented products at the agreed rates. Rentals may be offered on a month‐to‐month basis or for a fixed term. For month‐to‐month rentals, the rental will terminate only when the rented products are returned to SENSERA. For fixed‐term rentals, Buyer is responsible for returning rented products within  days of rental term end date. Customer will be invoiced for any rented product not received by SENSERA within this period, at the then current published pricing for said product.
4 USE AND ACCESS TO WEBAPP AND WEBSITE
The Service may include (a) network access (via cellular, WiFi or other means), (b) use of a web‐ based application to access the Products (“WebApp”) which includes a web‐based server to manage the Products and provide certain features including data storage, Product configuration, and alerting.
The Website and its content are protected by U.S. and/or foreign copyright laws and belong to SENSERA or its partners.
4.2 DATA RETENTION AND OWNERSHIP
Except as indicated below, all right, title and interest in all data collected by Products and/or stored by WebApp shall remain with Buyer so long as Buyer maintains an active Service with account in good standing. SENSERA systems reserves the rights to use selected samples, images, videos, and data collected as part of the Buyer’s Service or Products, for promotional and marketing purposes. Upon termination of Service by Buyer, Buyer shall have up to ninety (90) days to download any data from WebApp and shall be responsible for any backup or archiving of data after that time. Following such ninety (90) day period, SENSERA shall have no further obligation to retain or archive your data unless expressly agreed in writing in advance or as required by law directly applicable to SENSERA or an order of the court in connection with ongoing litigation. Buyer shall reimburse SENSERA for the expense incurred by SENSERA in the event that it is obligated to retain as a result of Buyer’s legal requirements or in connection with any formal litigation. SENSERA shall not be responsible for any accidental or incidental loss of data archived as part of Service for any reason.
4.3 PASSWORD SECURITY
If you create a login on the Website or WebApp, you are responsible for maintaining the confidentiality of your login identification and password information, and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your login and password.
4.4 WEBSITE USAGE
4.5 PRIVACY & CONFIDENTIALITY
SENSERA will not sell, share, or rent your personal information to any third party or use your e‐mail address for 3rd party emails. Any emails sent by SENSERA will only be in connection with the provision, use, notification of the Services and Products including information about new products and changes to existing products. 4.6 FRAUDULENT USAGE Buyer shall not engage in any of the actions listed below:
● Use the Service for monitoring to provide life‐sustaining medical care for any individual, including without limitation, use of the Service in health care and assisted living environments.;
● Attempt or assist another to access, alter or interfere with the communications and/or information of other data users;
● Rearrange, tamper or make an unauthorized connection with any Network of Carrier
● Use or assist others in the use of any unethical or fraudulent scheme, or by or through any other unethical or fraudulent means or devices whatsoever, with intent to avoid payment of, in whole or in part, any charges for Service;
● Use the Service in such a manner so as to interfere unreasonably with the use of the Service by one or more other Users or in a manner that violates the Acceptable Use Policy;
● Use the Service to convey information deemed to be obscene, salacious or prurient, or to convey information of a nature or in such a manner that renders such conveyance unlawful;
● Use the Service without permission on a stolen or lost device;
● Install any amplifiers, enhancers, repeaters or other devices that modify or otherwise affect the radio frequencies used to provide the Service;
● Use or alter, or attempt to use or alter, the Service for any non‐data purpose, including but not limited to services which primarily offer voice communications; and
● Use the Service for monitoring of third parties without their permission, except in the case of prisoner and parolee monitoring.
● Any use of Product or Service that violates Federal, State, or local laws or ordinances.
5 INSTALLATION AND SUPPORT
Buyer and Users each are responsible for installation of the Products. It is the Buyer and User’s responsibility to install the Product per all local codes, requirements, and applicable safety standards and rules.
6.1 LIMITED WARRANTY - PRODUCT
SENSERA warrants the Buyer that the Product hardware will be free from defects in design, workmanship and materials under normal use for a period of (2) years from the date of the original purchase (“Warranty Period”). The Buyer shall without undue delay notify SENSERA of any defect which appears in accordance with SENSERA’S return handling procedures. SENSERA shall have no obligation to repair or replace any Product that is not sent in compliance with such return handling procedures. A valid form of a bill of sale or receipt must be presented to obtain warranty service. If a valid claim is received by SENSERA within the Warranty Period, the sole remedy of the Buyer and SENSERA’S sole and exclusive liability shall be limited to, at SENSERA’S sole discretion, either repair of the hardware defect using new or refurbished replacement parts, or replacement of the Product with a new or refurbished unit. Repaired or replacement hardware will be warranted for the remainder of the original Warranty Period or ninety (90) days, whichever is longer. When a product or part is exchanged all hardware or part thereof that is replaced shall become the property of SENSERA. 6.2 EXCLUSIONS AND LIMITATIONS This Limited Hardware Warranty does not apply (i) if the product has been subject to faulty and improper installation, maintenance, service, operational adjustments, repair, alteration and/or modification in any way that is not (a) covered in the documentation for the product or (b) carried out with SENSERA’S prior consent in writing, (ii) to damages caused by failure to follow the instructions covered in the documentation for the products or other specific instructions from SENSERA, (iii) to cosmetic damages, (iv) if the product has been tampered with, (v) if the product is damaged by acts of God, misuse, abuse, negligence, accident, normal wear and tear and deterioration, environmental conditions outside the specified ranges, or lack of responsible care, (vi) if the product has had the model or serial number altered, defaced or removed, (vii) to damage that occurs in shipment or from improper storage or transportation, (viii) to damages by any other cause not related to defective design, workmanship and/or materials.
7 DISPUTE RESOLUTION/ARBITRATION
All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of Colorado or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneysʹ fees. Any such arbitration shall be conducted by an arbitrator experienced in a relevant industry and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.
8 LIABILITY LIMITATION
8.1 EXCLUSIVE REMEDY; LIMITATION OF LIABILITY
YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR (i) OUR, OR OUR DEALERʹS, AGENTʹS, REPRESENTATIVEʹS, VENDORʹS, OR SUPPLIERʹS FAILURE TO PROVIDE YOU WITH SERVICE OR SENSERAʹS FAILURE TO PERFORM HEREUNDER SHALL BE YOUR RIGHT TO HAVE SENSERA RE‐PERFORM SUCH SERVICE. UNLESS THE LAW FORBIDS IT IN ANY PARTICULAR CASE, OR (ii) ANY FAILURE, MALFUNCTION, DEFECT, OR OTHERWISE RELATED TO, ARISING OUT OF, OR IN CONNECTION WITH ANY PRODUCT, OR OTHER EQUIPMENT SUPPLIED OR PROVIDED BY SENSERA, SHALL BE YOUR RIGHT TO HAVE SENSERA REPAIR, OR HAVE REPAIRED, REPLACE, OR HAVE REPLACED, SUCH PRODUCT, OR OTHER EQUIPMENT. UNLESS THE EXCLUSIVE REMEDY SET FORTH IN THE PREVIOUS SENTENCE IS PROHIBITED UNDER APPLICABLE LAW, YOU AGREE TO LIMIT CLAIMS FOR DAMAGES OR OTHER MONETARY RELIEF AGAINST THE SENSERA PARTIES, OR ANY SUPPLIER, AGENT, DEALER, REPRESENTATIVE, VENDOR OR MANUFACTURER, TO THE MONTHLY SERVICE OR OTHER CHARGES YOU PAID FOR THE APPLICABLE SERVICE OR, IF PURCHASED FROM SENSARA, THE PRICE OF THE PRODUCT. AS A MATERIAL PART OF THE CONSIDERATION PAID BY YOU FOR THE SERVICES PROVIDED BY SENSERA OR ANY SUPPLIER, AGENT, DEALER, REPRESENTATIVE, VENDOR OR MANUFACTURER OF SENSERA, UNDER THIS AGREEMENT, AND NOTWITHSTANDING ANY OTHER PROVISION HEREOF, YOU AGREE THAT UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, TREBLE, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS, OR COST OF REPLACEMENT PRODUCTS AND SERVICES, TO THE FULLEST EXTENT THE SAME MAY BE DISCLAIMED BY LAW. THIS MEANS THAT NEITHER OF US WILL SEEK ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM THE OTHER. THIS EXCLUSIVE REMEDY, LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS EITHER PARTY MAY BRING AGAINST THE OTHER PARTY TO THE EXTENT THAT IT WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. THIS LIMITATION AND WAIVER WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, NEGLIGENCE, PRODUCT LIABILITY, OR ANY OTHER THEORY. YOU AGREE THAT THE FOREGOING ALLOCATION OF RISK SHALL, IN THE EVENT OF SENSERAʹS INABILITY, DESPITE GOOD FAITH EFFORTS, TO PROVIDE THE SERVICES OR THE PRODUCTS, REMAIN IN EFFECT REGARDLESS OF WHETHER THE EXCLUSIVE REMEDIES PROVIDED FOR UNDER THIS SECTION THEN SATISFY THE ESSENTIAL PURPOSES FOR WHICH THEY WERE INTENDED, OR OTHERWISE PROVIDE YOU WITH A FAIR QUANTUM OF RELIEF.
8.2 DISCLAIMER OF WARRANTY:
SERVICES EXCEPT AS STATED IN SECTION 6, SENSERA AND ITS VENDORS AND SUPPLIERS (ʺSENSERA PARTIESʺ) MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO BUYER IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICE. YOU ACKNOWLEDGE THAT SERVICE INTERRUPTIONS WILL OCCUR FROM TIME TO TIME AND AGREE TO HOLD THE SENSERA PARTIES HARMLESS FOR ALL SUCH INTERRUPTIONS. IN NO EVENT SHALL SENSERA PARTIES BE LIABLE FOR ECONOMIC LOSS, PERSONAL INJURIES, OR PROPERTY DAMAGE SUSTAINED BY YOU OR ANY THIRD PARTY ARISING FROM USE OF THE SERVICE OR THIS AGREEMENT.
8.3 DISCLAIMER OF WARRANTY:
PRODUCTS EXCEPT AS SPECIFIED IN SECTION 6, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON‐INFRINGEMENT, SATISFACTORY QUALITY, NON‐ INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY SENSERA, ITS SUPPLIERS AND LICENSORS. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY. THESE WARRANTIES GIVE CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
You agree to defend, indemnify, and hold us harmless from any claims arising out of any breach of the Agreement, or violation of any laws or regulations or the rights of any third party (including privacy rights) by you, any person on your account or that you authorized to to use the Service.
9 INTELLECTUAL PROPERTY
Subject to Buyer’s compliance with these Terms and Conditions, SENSERA grants Buyer a non‐ exclusive, non‐transferable license to use the Service. The Services and any Products may be incorporated into, and may incorporate itself, software and other technology owned or controlled by third parties. Any such third party software or technology incorporated falls under the scope of these Terms and Conditions.
You agree not to infringe, misappropriate, dilute or otherwise violate the intellectual property rights of SENSERA or any third party. Except for a limited license to use the Services, your purchase of Services and SENSERA Devices does not grant you any license to copy, modify, reverse engineer, download, redistribute, or resell the intellectual property of SENSERA or others related to the Services and SENSERA Devices; this intellectual property may be used only with SENSERA Service unless expressly authorized by SENSERA. You agree that a violation of this section harms SENSERA, which cannot be fully redressed by money damages, and that SENSERA shall be entitled to immediate injunctive relief in addition to all other remedies available. SENSERA in appropriate circumstances may in its sole judgment, suspend or terminate the Service of any subscriber, account holder or user who is in violation of these terms.
You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on or in connection with the Website, Services and/or Products. Any third party Intellectual Property included in the Website, Services, and/or Products are the property of the respective owner of such Intellectual Property and may be protected by applicable law. Nothing in these Terms of Service gives You any right or license to any trademarks and/or trade names (whether registered or unregistered), signs, logos, icons, slogans, banners, screen shots, trade dress, links or other brand features of SENSERA, including, without limitation “Sensera Systems”, “LiveView”, and Sensera System’s logo without the prior written consent of SENSERA, which consent may be withheld in the sole discretion of SENSERA for any reason. If Buyer from time to time provides suggestions, comments and/or other feedback to SENSERA with respect to SENSERA or the Products or Services, SENSERA may, in connection with any of its products or services, freely use, copy, disclose, license, distribute and/or exploit any such suggestions, comments and/or other feedback in any manner and without any obligation or restriction based on intellectual property rights or otherwise. SENSERA will retain sole ownership of any such suggestions, comments and/or other feedback and Buyer will not provide any such suggestions, comments and/or other feedback subject to any terms that would impose any obligation on SENSERA or any of its customers or partners.
10 CARRIER TERMS
Some of SENSERA’S products and services utilize mobile wireless services from wireless carriers (“Carrier”). The following terms and conditions apply to use of wireless service that may be part of SENERA’S Services. Buyer has no contractual relationship with Carrier and Buyer is not a third‐party beneficiary of any agreement between SENSERA and Carrier. Buyer understands and agrees that Carrier or SENSERA shall have no legal, equitable or other liability of any kind to the Buyer. Buyer acknowledges that the Service may be temporarily refused, interrupted, curtailed or limited because of atmospheric, terrain, or other natural or artificial conditions and may be temporarily interrupted or curtailed due to usage concentrations, modifications, upgrades, relocation and repairs of transmission Network. Buyer agrees that Carrier or SENSERA or its Agents shall not be responsible for such interruptions of the Service or the inability to use the Service within or outside the Territory. Buyer understands that Carrier cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Service. Buyer expressly understands and agrees that the liability and obligations of SENSERA or its Agent to Buyer under the this agreement for Services may be strictly controlled and limited by Carrier’s tariff, if any, and the laws, rules and regulations of the Federal Communications Commission and other United States or foreign governmental authorities which from time to time have jurisdiction. In any event, regardless of the form of action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, Buyer’s exclusive remedy and the total liability of Carrier, SENSERA, or its Agents and/or any supplier of services to SENSERA arising in any way in connection with this Agreement, for any cause whatsoever, including but not limited to any failure or disruption of service provided, shall be limited to damages in an amount equal to the amount paid by Buyer to SENSERA for Services in the six (6) month period preceding receipt of your written claim for damages by SENSERA. In no event shall SENSERA, the or its Agents and/or Carrier be liable for any cost, delay, failure or disruption of the Service, lost profits, or incidental, special, punitive or consequential damages. In no event shall SENSERA, or its Agent and/or Carrier be liable for the failure or incompatibility of Products utilized by Buyer in connection with the Service. Buyer shall use Products at its own risk. Buyer shall indemnify, defend, and hold SENSERA, its Agents, Carrier and the officers, employees and agents of each of them harmless from and against all claims, causes of action, losses, expenses, liability or damages (including reasonable attorneys’ fees and costs), and including without limitation for any personal injury or death, arising in any way, directly or indirectly, in connection with this Agreement; the provision or use of the Service; or the use, failure to use or inability to use the Service. This provision shall survive the termination of this Agreement. Buyer acknowledges that this Agreement is assignable by SENSERA or its Agents. Service may be temporarily suspended or permanently terminated without notice in the event that SENSERA’S agreement with Carrier is terminated or in the event the Buyer violates the Carrier’s Acceptable Use Policy or other Network rules and policies. Buyer waives any and all claims against the underlying wireless service carrier, including any roaming carrier, for such suspension or termination.
BUYER EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT BUYER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN SENSERA SYSTEMS AND THE UNDERLYING CARRIER. IN ADDITION, BUYER ACKNOWLEDGES AND AGREES THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO BUYER AND BUYER HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR.