- 2201 10th St. Plano, TX 75074
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WHEREAS, ENSEO is in the business of providing Systems, Software and Services (as more fully defined below) for use in the lodging industry;
WHEREAS, ENSEO provides a service, MadeSafe®, an employee safety and security alert system which includes equipment, software and services designed to locate an employee’s approximate location including the guest room and public areas in which the employee is located. The system sends alerts to designated onsite safety and security personnel when an employee presses the panic button which the employee carries while on-the-job. MadeSafe does not alert police or fire departments;
WHEREAS, MadeSafe® is patented intellectual property owned by Catapult Technologies, Inc. (“Catapult”);
WHEREAS, Catapult exclusively owns all right, title and interest to the intellectual property as defined below;
WHEREAS, ENSEO is a licensee of Catapult and is fully licensed to sell, sub-license, install, operate and maintain the equipment, systems, software and services owned by Catapult for use in the lodging industry;
WHEREAS, PARTICIPATING SITE owns and/or operates a hotel located at the Location for lodging of guests in separate rooms which are customarily available for overnight sleeping accommodations (“Property”); and
WHEREAS, PARTICIPATING SITE desires to engage ENSEO to provide the Equipment, ENSEO Services and Other Services for deployment at the Property, and ENSEO is willing to provide the same, all in accordance with the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties to this Agreement do hereby agree as follows:
In addition to terms defined in the body of this Agreement, as used herein the following terms shall have the following meanings. Terms other than those defined within this Agreement shall be given their plain English meaning, and those terms, acronyms and phrases known in the information technology industry shall be interpreted in accordance with their generally known meanings. Unless the context otherwise requires, words importing the singular include the plural and vice-versa.
(a)
Affiliates shall mean entities (i) under the majority ownership or control of, under common majority ownership or control with, or which own or control, a Party, and (ii) partnerships and joint ventures in which a Party or an entity under clause (i) above is a partner or a principal.
(b)
Documentation shall mean, without limitation: (i) the user manuals, training materials, guides, descriptions, technical manuals, specifications, supporting materials and other written materials (in print or electronic form, regardless of the medium in which they are stored or displayed) that relate to any Equipment delivered and/or ENSEO Services provided to PARTICIPATING SITE for its use in evaluating and using same, including the materials and descriptions identified or cross-referenced in the Exhibit relating to any Equipment delivered and/or ENSEO Services; and (ii) any and all amendments, modifications and supplements to the foregoing.
(c)
ENSEO-Owned Deliverables shall mean all Deliverables as to which ENSEO is the sole and exclusive owner.
(d)
ENSEO Service(s) shall mean the services provided by ENSEO to PARTICIPATING SITE pursuant to this Agreement.
(e)
ENSEO Materials shall mean all Materials owned by ENSEO.
(f)
Engaged Personnel or Engaged Person shall mean any individual, including ENSEO employees or approved ENSEO subcontractors, assigned by ENSEO to furnish ENSEO Services, if any, under any Exhibit and shall not be considered for any reason employees or subcontractors of PARTICIPATING SITE.
(g)
Equipment shall mean the MadeSafe equipment, and all other equipment at a PARTICIPATING SITE that PARTICIPATING SITE either purchases or leases from ENSEO and that is a part of the system used to provide the ENSEO Service.
(h)
Information shall mean information exchanged or gained in the course of performing this Agreement, which includes, without limitation, the terms of this Agreement itself, the Equipment, and the specifications, diagrams, data, manuals, computer programs (including diagnostic software), maintenance materials, tools, technical reports, derivative works, product plans and documentation, whether tangible or intangible, related to the Equipment, data collected by ENSEO related to the performance and use of the Equipment, Software or ENSEO Services, as well as any and all derivative instruments or other documents developed, produced or compiled by ENSEO from any of the Information.
(i)
Intellectual Property Right shall mean any and all right, title and interest (including all patent, patent registration, copyright, trademark, trade name, service mark, service name, trade secret, or other proprietary right arising or enforceable under any United States federal or state law, rule or regulation, non-United States law, rule or regulation or international treaty) in any technology, system, invention, medium, or content, including without limitation text, print, pictures, photographs, video, Marks, logos, designs, drawings, artistic and graphical works, music, speech, computer software and documentation, any other works of authorship, and any form, method or manner of expression or communication.
(j)
Internal Purposes shall mean that PARTICIPATING SITE may: (i) designate its employees to use the ENSEO Services or Equipment or Deliverables delivered for the benefit of PARTICIPATING SITE at the Location; and (ii) designate one or more consultants, auditors, and other third party service providers to exercise PARTICIPATING SITE’s rights under this Agreement with respect to the ENSEO Services or Equipment or Deliverables delivered for the benefit of PARTICIPATING SITE at the Location; provided that the aforementioned third parties are under an obligation to protect the confidentiality of the ENSEO Services or Equipment, ENSEO Materials and ENSEO–Owned Deliverables delivered to the same extent this Agreement obligates PARTICIPATING SITE to do so.
(k)
Location shall mean shall mean the premises of PARTICIPATING SITE.
(l)
Licensed ENSEO Materials shall mean the Materials incorporated in any Equipment or System or designated as such in the applicable SOW.
(m)
Licensed Software shall mean Software supplied by ENSEO and licensed by PARTICIPATING SITE under this Agreement, whether supplied in paper or electronic form. Licensed Software does not include source code. Licensed Software shall also include any upgrades, enhancements or derivatives of Licensed Software and new proprietary software under development or introduced in the future by ENSEO, to the extent the foregoing are supplied by ENSEO and licensed by PARTICIPATING SITE under this Agreement.
(n)
Materials shall mean any and all reports, computer programs, Documentation, specifications, products, work product, software, source code, algorithms, routines, graphics, files, software patches, enhancements, modifications, diagrams, charts, functional descriptions, photographs, surveys, or other materials, writings, or derivatives thereof however delivered.
(o)
Open Source Software shall mean any software code that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software, shareware (e.g. Linux), or similar licensing or distribution models and includes software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) The Artistic License (e.g., PERL); (iii) the Mozilla Public License(s); (iv) the Netscape Public License; (v) the Berkeley software design (BSD) license including Free BSD or BSD-style license; (vi) the Sun Community Source License (SCSL); (vii) an Open Source Foundation License (e.g., CDE and Motif UNIX user interfaces); and (viii) the Apache Server license.
(p)
PARTICIPATING SITE Operating Environment shall mean the minimum hardware, software and environment configuration necessary at PARTICIPATING SITE’s facilities for PARTICIPATING SITE’s access and use of the ENSEO Services, as identified by ENSEO, including any incompatibilities as of the effective date. If no PARTICIPATING SITE Operating Environment is specified, PARTICIPATING SITE’s existing hardware, software and environment configuration will be deemed to be the PARTICIPATING SITE Operating Environment.
(q)
PARTICIPATING SITE Employees shall mean employees of PARTICIPATING SITE.
(r)
PARTICIPATING SITE Materials shall mean Materials owned by PARTICIPATING SITE.
(s)
Personally Identifiable Information (“PII”) shall mean (i) any information or data that can be associated with, traced to or used to identify a specific individual, including an individual’s name, address, telephone number, email address, credit card information, social security number, or other similar factual information, that is subject to privacy and other laws and regulations relating to protection, collection, use, and distribution of such information, and (ii) “personal data” and “sensitive personal data,” as those terms are defined under the EU Data Protection Directive, of PARTICIPATING SITE Customers, employees and other individuals, and similar information protected under legislation of other countries, to which Services are provided under this Agreement regardless of the media on which such information is stored (e.g., on paper or electronically) and includes such information that is generated, collected, stored or obtained as part of this Agreement or such information that ENSEO has access to while performing its obligations and responsibilities under this Agreement.
(t)
Program Interface shall mean an interface developed by ENSEO between the System and the property management system used by the PARTICIPATING SITE computer network.
(u)
Specifications shall mean the specifications for the ENSEO Services, the System, installation of the System, maintenance of the System, or other technical aspect related to the System, as applicable, including without limitation, manufacturers’ instructions and best practices in the industry.
(v)
Security Breaches shall mean: (i) unauthorized access to PARTICIPATING SITE networks and systems; and (ii) programs that impede the use of or otherwise harm PARTICIPATING SITE’s networks or systems, including viruses, time bombs, worms, Trojan horses, disabling devices, automatic restraint, spyware or similar programs, or unauthorized access to the System.
(w)
Software Patches shall mean software updates issued by software vendors to correct such vendor’s software for vulnerability to Security Breaches.
(x)
Security Software shall mean the enterprise or corporate version of commercially available software designed to secure computer networks from Security Breaches.
(y)
Service Credits shall mean the terms regarding the availability of the System to be provided under this Agreement.
(z)
Software shall mean (i) any computer program in object code format, Documentation, firmware, revisions or other related material owned or licensed by ENSEO and used in any Equipment, (ii) any modifications, translations, compilations, major releases, minor releases, hotfixes and other releases or updates, (iii) software security devices, if any, and (iv) any included third party software.
(aa)
System shall mean the Equipment and Licensed Software made available by ENSEO, including enhancements, updates and upgrades provided by ENSEO with respect to such Equipment and software, to provide the ENSEO Services to the PARTICIPATING SITE pursuant to this Agreement.
(bb)
System Deliverables shall mean that portion of a Deliverable that consists of computer programs, software, or hardware.
(cc)
Third Party Claims shall mean all claims or threatened claims, civil, criminal, administrative, or investigative action or proceeding, demand, charge, action, cause of action or other proceeding asserted against a Party brought by an unaffiliated third party.
(dd)
Third Party Products shall mean Materials licensed to ENSEO and delivered to PARTICIPATING SITE as part of the Equipment or Services.
(a)
MadeSafe®. Enseo equipment, software and services, as further described in Exhibit A, designed to locate an employee’s approximate location including the guest room and public areas in which the employee is located. The system sends alerts to designated onsite safety and security personnel when an employee presses the panic button which the employee carries while on-the-job. MadeSafe does not alert police or fire departments.
(b)
Program Interface. ENSEO will provide a Program Interface to the PARTICIPATING SITE as part of the System, which shall be of a mutually agreed upon design. ENSEO shall not make any material changes to the functionality of the Program Interface without PARTICIPATING SITE’S prior written consent, not to be unreasonably withheld. Changes to the Program Interface, if requested by PARTICIPATING SITE, shall be subject to the terms set forth in a SOW and provided at an additional charge.
(c)
Additional Services. ENSEO and PARTICIPATING SITE may mutually agree to add products and services to this Agreement. All such additional services shall be set forth in an SOW signed by ENSEO and PARTICIPATING SITE.
(a)
Operation. During the term of this Agreement, ENSEO shall operate the System to provide the ENSEO Services.
(b)
Equipment Installation. ENSEO shall deliver and install the System at the Location. ENSEO shall also deliver the Documentation, Specifications and any other written materials regarding the System and Equipment upon completion of the installation services and as part of the Acceptance Criteria.
(c)
Enhancements. Upon request of PARTICIPATING SITE, and subject to the agreement of the Parties (including with respect to pricing and changes) ENSEO shall make available to PARTICIPATING SITE all improvements to or new features for the Equipment, System or ENSEO Services (“Enhancements”) that ENSEO makes generally available to its customers during the term of this Agreement.
(d)
Customizations. PARTICIPATING SITE may request that ENSEO provide custom modifications (“Customizations”) to the ENSEO Services. If ENSEO and PARTICIPATING SITE agree on the terms under which ENSEO will develop and deliver the Customizations, they shall execute an SOW therefore setting forth such terms, including pricing, specifications, and delivery dates. Unless otherwise agreed in the applicable SOW, all Customizations shall be considered ENSEO Materials.
(e)
Training and Consultation. To enable personnel of PARTICIPATING SITE utilize the ENSEO Service, ENSEO shall provide reasonable consultation and training necessary for the appropriate employees of PARTICIPATING SITE to understand the use and operation of the System used to provide the ENSEO Services. Initial training dates, times and locations shall be as set forth in the initial SOW. PARTICIPATING SITE may purchase additional training and consulting services on terms agreed with ENSEO and set forth in an SOW. PARTICIPATING SITE personnel attending the training shall have the right to retain all Materials provided to them during the training for use by PARTICIPATING SITE for PARTICIPATING SITE’s Internal Purposes. ENSEO shall be available for reasonable telephone consultation to provide further assistance to PARTICIPATING SITE’s personnel regarding use and operation of the System. Initial training shall be provided at no additional charge to PARTICIPATING SITE. All other training shall be provided as set forth in a SOW executed between PARTICIPATING SITE and ENSEO.
(f)
Personally Identifiable Information. In the course of delivering the Services, ENSEO may have access to PARTICIPATING SITE owned or controlled PII. In such event, ENSO agrees to keep such PII strictly confidential and to comply with all applicable privacy and other laws and regulations relating to protection, collection, use, and distribution of such information. PII shall be deemed PARTICIPATING SITE Materials and, as between ENSEO and PARTICIPATING SITE, shall be the exclusive property of PARTICIPATING SITE.
Except as may be otherwise designated as PARTICIPATING SITE’s responsibility, ENSEO shall secure and maintain all licenses, rights, and consents necessary to deliver the ENSEO Services. PARTICIPATING SITE’s use of the System and ENSEO Materials shall be subject to the terms of this Agreement and any third-party license terms made known to PARTICIPATING SITE by ENSEO in writing. ENSEO represents to PARTICIPATING SITE that the provision of the ENSEO Services does not violate the rights of any third party, and agrees to indemnify, defend and hold PARTICIPATING SITE Parties harmless from and against all Losses as a result of such representation being untrue.
(a)
Payment. PARTICIPATING SITE shall pay all ENSEO invoices when due.
(b)
Access to Equipment. PARTICIPATING SITE shall cooperate with ENSEO and its agents including but not limited to providing access to the Location and the equipment and network as may be necessary for the inspection, installation, operation, and maintenance of the Equipment.
(c)
Operational Data. ENSEO shall have exclusive rights to all operational and use data related to the ENSEO Services and Products (the “Operational Data”). Unless otherwise agreed in writing by the Parties, all right, title and interest in and to such Operational Data shall vest in ENSEO. ENSEO agrees that Operational Data does not include any data containing PII obtained from PARTICIPATING SITE.
(d)
Basic System Operation. PARTICIPATING SITE acknowledges that in order for the MadeSafe system to provide its intended function to provide a Notice of Panic Alert and a Location Estimate (i). PARTICIPATION SITE personnel must carry working ENSEO MadeSafe PLDs; (ii). The MadeSafe System Equipment must be in proper working order; (iii) The MadeSafe system is properly connected to the internet and (iv) PARTICIPATING SITE personnel are familiar with the Enseo MadeSafe System Operation documentation.
(e)
Maintenance PARTICIPANTING SITE is responsible for (i) maintaining sufficient PLDs and Gateways as required to recover from normal failures; (ii) insuring that MadeSafe Gateways are promptly replaced when identified and requested by Enseo Remote Technical Support only (iii) performing a System Audit at least every 6 months per the Enseo MadeSafe System Audit Procedure and identifying to ENSEO any locations where system performance is below expectations; (iv) promptly assisting Enseo Remote Technical Support in troubleshooting and minor system configuration tasks in the event of a system failure. Enseo has the right to perform a physical MadeSafe System Audit no less than every 6 months. If PARTICIPATING SITE’s fails to comply with this Section, it will be required to pay for a service call or any technical support provided by ENSEO.
(f)
Removal Upon Termination.Upon termination or expiration of the ENSEO Services, PARTICIPATING SITE will take all reasonable actions necessary to allow ENSEO to remove Equipment leased from ENSEO (and any purchased from ENSEO for which PARTICIPATING SITE has not paid ENSEO in full unless other arrangements are agreed to by the Parties).
(g)
Disconnecting Upon Termination – Purchased Equipment. Upon termination or expiration of this Agreement, PARTICIPATING SITE will take all reasonable actions necessary to disconnect the Equipment purchased by PARTICIPATING SITE for which PARTICIPATING SITE has paid ENSEO in full so that such Equipment shall no longer receive the ENSEO Services. ENSEO shall disconnect the service to such purchased Equipment no later than thirty (30) days after such termination or expiration as coordinated with the PARTICIPATING SITE. Upon termination or expiration, all rights of PARTICIPATING SITE with respect to the Software included in the Equipment, including all Intellectual Property Rights therein, shall immediately terminate, and PARTICIPATING SITE shall have no right or authority to use, access or otherwise exploit such Software or Intellectual Property Rights.
(h)
Operational Responsibilities. During the Term, PARTICIPATING SITE shall provide and maintain at its own cost (i) data networks; (ii) internet connections; (iii) the MATV system; (iv) the required interfaces; and, (v) the electricity and cooling necessary to operate the Equipment.
(i)
Compliance. During the Term, PARTICIPATING SITE shall reasonably comply with all written instructions provided by ENSEO regarding the proper use of the Equipment and Service, all of the non-monetary terms of any licenses provided by ENSEO, and all applicable laws regarding the use of the Equipment and Services.
ENSEO Materials. PARTICIPATING SITE acknowledges and agrees that ENSEO has considerable intellectual property, including, but not limited to, patents, trade secrets, licenses, Confidential Information, and know how. PARTICIPATING SITE acknowledges that the use, misappropriation or disclosure of the intellectual property, trade secrets, licenses, and know-how of ENSEO would constitute a breach of trust and cause irreparable injury to the ENSEO and it is essential to the protection of ENSEO’s goodwill and to the maintenance of ENSEO’s competitive position that the intellectual property, trade secrets, licenses, and know-how be kept secret and that PARTICIPATING SITE not disclose the intellectual property, trade secrets, licenses, and know how to others or use the same to PARTICIPATING SITE’s own advantage or the advantage of others. Further, PARTICIPATING SITE acknowledges and agrees that ENSEO Materials, includes any Interface developed under Section 1.3 and any other materials developed prior to the Effective Date or thereafter in the performance of the Services. ENSEO owns and shall own all right, title and interest, including all intellectual property rights, in the Services, System, Software, Confidential Information, all improvements, modifications, or derivative works of the ENSEO Intellectual Property, whether created by or on behalf of ENSEO or PARTICIPATING SITE, and any Intellectual Property arising therefrom or embodied therein shall be owned exclusively by ENSEO, and ENSEO Materials; provided however, that ENSEO, shall not have any ownership interest in any PARTICIPATING SITE Materials or PARTICIPATING SITE Confidential Information that may be included in any ENSEO Materials. All ENSEO Materials shall be subject to the confidentiality provisions of this Agreement. Except as specifically provided in this Agreement or in any Property Agreement executed between PARTICIPATING SITE and ENSEO, PARTICIPATING SITE obtains no right, title, or interest in the Services, System, Software, ENSEO Materials, or ENSEO Confidential Information. For avoidance of doubt, PARTICIPATING SITE acknowledges that its purchase of any part of the Services, System, Software or ENSEO Materials under this Agreement is not a work-for-hire and does not grant PARTICIPATING SITE any intellectual property rights therein. PARTICIPATING SITE further acknowledges that the Services, System, Software, and ENSEO Materials are proprietary to ENSEO and agrees to employ reasonable security measures to prevent any duplication thereof or other unauthorized use of or access thereto. PARTICIPATING SITE acknowledges and agrees that, except as may be specifically provided in an SOW and subject only to the limited licensed granted to PARTICIPATING SITE in Section 7, ENSEO shall own all right, title and interest, including without limitation all Intellectual Property Rights, in and to the ENSEO Services, System, Equipment, ENSEO Materials and ENSEO–Owned Deliverables. For avoidance of doubt, PARTICIPATING SITE acknowledges that its purchase of any Equipment under this Agreement does not grant PARTICIPATING SITE any Intellectual Property Rights therein.
(a)
No License.Except as expressly set forth in this Agreement, PARTICIPATING SITE shall not have any right or interest to the copyrights, patents, licenses, derivative works, work product, or trademarks owned or licensed by ENSEO, and PARTICIPATING SITE shall have no right to redistribute the ENSEO Services outside the Location.
(b)
Proprietary Service. PARTICIPATING SITE acknowledges that the ENSEO Services are proprietary to ENSEO. PARTICIPATING SITE will employ reasonable security measures to prevent any duplication or other unauthorized use of or access to the ENSEO Services.
(c)
Incompatible Equipment or Services. PARTICIPATING SITE shall not install any equipment or provide any service which causes signal interference with the transmissions related to the ENSEO Services or makes use of any ENSEO Equipment or Materials to deliver services to PARTICIPATING SITE. Under no circumstances shall ENSEO be responsible for any interruption in the ENSEO Services due in whole or in part to any equipment installed or service provided by PARTICIPATING SITE without ENSEO’s prior written approval.
(d)
Compliance with Licenses. PARTICIPATING SITE shall comply with all restrictions imposed on the use of the Equipment and the use of the ENSEO Services.
(e)
Deactivation. If PARTICIPATING SITE violates any of the provisions of this Section and fails to cure the same within fifteen (15) days after receiving written notice to do so from ENSEO, ENSEO may deactivate the ENSEO Services to such PARTICIPATING SITE until PARTICIPATING SITE cures such violation. If PARTICIPATING SITE fails to do so within sixty (60) days after receiving notice to cure, ENSEO shall be entitled to seek any and all remedies available for PARTICIPATING SITE’S breach, including without limitation termination of this Agreement.
(a)
Notice of Equipment Failure. PARTICIPATING SITE shall promptly notify ENSEO by telephone or other mutually agreed upon means of communication of any failure of the ENSEO Services or Equipment, specifying the nature of the failure. In addition, PARTICIPATING SITE shall promptly notify ENSEO of any theft, security breach, or damage to the Equipment.
(b)
Equipment Repair. ENSEO shall provide all maintenance, repairs and replacement of Materials and Equipment necessary to ensure operation of the Equipment and the system used to provide the ENSEO Services and satisfactory access to the ENSEO Services. Such repair services shall be provided in accordance with the terms of the limited equipment warranty set forth in Section 12 and, following the expiration of the Equipment Warranty Period (as defined below), pursuant to the terms of the applicable SLA, if any. For avoidance of doubt, Equipment maintenance (under Section 9 (e) and repair services under this Section 9 (b), shall not apply to any Equipment that has been lost, stolen, or subjected to damage or abuse (other than normal wear and tear) or is damaged as a result of PARTICIPATING SITE’s breach of this Agreement and all Equipment returned for repair or warranty services shall be returned in accordance with and subject to the ENSEO RMA Process as set forth in Section 9 (g).
(c)
Third Party Repairs. PARTICIPATING SITE shall not permit any person, including without limitation its agents and employees, to tamper with or attempt to make repairs to any Equipment supplied by ENSEO under the terms of this Agreement.
(d)
>Scheduled Repairs. ENSEO shall schedule and perform its obligations in such a manner as to avoid any unreasonable interference, disturbance, or inconvenience to the Location or the PARTICIPATING SITE Customers. ENSEO shall not have any liability for any delay in such performance resulting from PARTICIPATING SITE’s scheduling requests.
(e)
Cost of Maintenance. During the Equipment Warranty Period, and subject to the terms of the limited equipment warranty set forth in Section 12, ENSEO shall provide at its sole cost and expense all replacement parts, and materials for the Equipment except any repairs or replacements to the Equipment supplied by ENSEO made necessary by either (i) PARTICIPATING SITE’s negligent failure to ensure adequate security for the Equipment, or (ii) willful or negligent acts by PARTICIPATING SITE or any of its employees, contractors, or agents, which shall be completed by PARTICIPATING SITE’s sole cost and expense. During the Equipment Warranty Period, and subject to the terms of the limited equipment warranty set forth in Section 12 and the provisions of Section 9, Enseo shall provide at its sole cost and expense, standard PLD batteries at the initial delivery during the installation each PLD. PARTICIPATING SITE shall be responsible for any subsequent battery cost, expense and installation in PLDs.
(f)
Hazardous Conditions.If PARTICIPATING SITE becomes aware, or with the exercise of reasonable care should have become aware, of any hazard that could cause death or serious physical injury within the areas of ENSEO’s installation on or maintenance of the PARTICIPATING SITE, PARTICIPATING SITE shall promptly notify ENSEO of such hazard.
(g)
RMA Process.If PARTICIPATING SITE reasonably believes that any Equipment fails to operate in the manner required under the limited warranty in Section 12, PARTICIPATING SITE shall provide ENSEO with notice thereof as provided in Section 12. Upon receipt of such notice, ENSEO will attempt to diagnose and correct any deficiency in the Equipment and, if such efforts are unsuccessful, either schedule a repair call at the Location or provide PARTICIPATING SITE with an RMA number and authorize PARTICIPATING SITE to return the Equipment for repair or replacement. PARTICIPANT SITE shall bear all expenses of removal and reinstallation of defective Equipment, and shall bear all costs of transport insurance, and all risk of loss, in transporting the defective Equipment to ENSEO. ENSEO shall bear all costs of transport and insurance, and all risk of loss, in transporting the repaired or replaced Equipment to the Location. If PARTICIPATING SITE returns Equipment without an RMA number or ENSEO determines that any returned Equipment is not covered by the Warranty or for returns where the product is found to be in good working condition or the correction of damage or non-conformity is excluded under Section 9, PARTICIPATING SITE shall pay ENSEO’s costs of handling, inspecting, testing, and transportation. From and after the expiration of the Warranty Period, PARTICIPATING SITE shall bear all expenses associated with the repair or replacement of Equipment.
(h)
Service Credits.ENSEO’s sole liability in the event of failing to meet service targets shall be a credit of its monthly MadeSafe Recurring Fees to a maximum of 30% and will be applied during the calendar Quarter following the Quarter in which the Service Credit was incurred. Service Credits will be calculated on a quarterly basis. ENSEO Service Credits shall be computed on the following table.
| Service Target | Service Target | Maximum Credit of Monthly Service Fees |
|---|---|---|
| MadeSafe Service | No more than 24 consecutive hours of unavailability in more than 25% of Participating Site’s service rooms and public areas. | One day of monthly recurring fees for each day after the initial twenty-four (24) hour period during which Participating Site loses all of the contracted services in more than 25% of Participating Site’s service and public areas, not to exceed 30% of monthly recurring fees. |
Service credits shall not be provided during any period that Enseo services were suspended.
Service credits are available only by written request from property within 30 days of the event generating the claim. Service credits shall be issued only as credits to future services and may not be transferred to any other property.
Service credits constitute PARTICIPATING SITE’s sole and exclusive remedy for ENSEO’s failure to meet service targets.
(a)
Mutual Indemnities. Each Party (in such capacity, the “Indemnitor”) agrees to indemnify, defend and hold harmless the other Party and its respective officers, directors, employees, agents, successors, and assigns, from losses resulting from any Third Party Claims arising from (a) personal injury, wrongful death, or property damage proximately caused by the gross negligence or intentional misconduct of the Indemnitor, (b) the infringement by the Indemnitor of a third party’s intellectual property rights; (c) any breach by the Indemnitor of its obligation with respect to Confidential Information under this Agreement.
(b)
Indemnity by ENSEO. In addition to the obligations under Section 10 (a) ENSEO agrees to indemnify, defend and hold harmless PARTICIPATING SITE and its Affiliates, existing and potential partners, officers, directors, employees, agents, representatives, counsel, accountants, advisors, financing sources, successors, and assigns, (“PARTICIPATING SITE Parties”), from any Losses, expenses, claims, liabilities, suits, damages, liens and costs (collectively, “Losses”) related to: (a) ENSEO’s negligence, willful misconduct or breach by ENSEO of any representation, warranty, or other obligation under this Agreement; (b) ENSEO’s abandonment or termination of the ENSEO Services without cause and not in accordance with the termination provisions of this Agreement.
(c)
Mitigation. If the System provided under this Agreement, or any part thereof, becomes, or in ENSEO’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, and as a result of such claim or proceeding PARTICIPATING SITE’s use of the System, or any part thereof, may be enjoined or interfered with in any manner, then, in addition to any rights PARTICIPATING SITE may have elsewhere in this Agreement, ENSEO shall, in the following order of priority and in addition to indemnifying PARTICIPATING SITE as provided in this Agreement and to the other rights PARTICIPATING SITE may have, promptly (which, in the event PARTICIPATING SITE’s use of the System, or any part thereof, is enjoined or interfered with in any manner, shall not exceed thirty (30) calendar days following such enjoinment or interference) at ENSEO’s expense (i) obtain a license for PARTICIPATING SITE to continue to use the System; (ii) modify the System to avoid the infringement but in a manner that still permits the System to perform as provided under this Agreement; or (iii) replace the System with a compatible, functionally equivalent, and non-infringing system. ENSEO shall accomplish the remedies under subsections (i), (ii) and (iii) in a manner that minimizes the disruption to PARTICIPATING SITE’s business operations. If ENSEO is not able to accomplish the remedies under subsections (i), (ii) and (iii) within a commercially reasonable time frame (which, in the event PARTICIPATING SITE’s use of the System, or any part thereof, is enjoined or interfered with in any manner, shall not exceed thirty (30) calendar days following such enjoinment or interference) and is otherwise in compliance with its obligations under the preceding Section, ENSEO may, at its option, terminate this Agreement upon ninety (90) day notice and, upon termination, PARTICIPATING SITE shall pay any due and unpaid amounts owed to ENSEO, return the leased/rented Equipment and discontinue use of the System and ENSEO shall promptly refund any pre-paid amounts applicable to any ENSEO Services not performed as of the termination date. The foregoing states ENSEO’s sole obligations and PARTICIPATING SITE’S sole and exclusive rights and remedies with respect to claims and Losses covered therein.
(d)
Exceptions. ENSEO shall have no obligation under Section 10 (a) – (c) for any claims or Losses for which PARTICIPATING SITE is required to indemnify ENSEO or to the extent any claims or any Losses of PARTICIPATING SITE arise from (i) any breach of this Agreement by PARTICIPATING SITE (ii) any unauthorized use or modification of the System by or for PARTICIPATING SITE, and (iii) any content, services, software, or equipment (including any provided by a third party at PARTICIPATING SITE’s request or direction) which PARTICIPATING SITE provides to or requires ENSEO to use as part of the Services.
(e)
Settlement. Notwithstanding any other provision of this Section 10, an Indemnitor shall retain the right to compromise or settle any such claim subject to indemnity in its own discretion unless such compromise or settlement impacts the Indemnitee or imposes any liability on the Indemnitee, in which case the Indemnitor shall not enter into any such settlement without the prior written consent of the Indemnitee.
(f)
Indemnification Procedures. The Parties shall follow the following indemnification procedures: Promptly after receipt by the indemnitee of notice of a Third Party Claim, the indemnitee shall notify the indemnitor of such Third Party Claim in writing. No failure to provide indemnitor such notification shall relieve the indemnitor of its obligations under this Agreement except to the extent that the indemnitor can demonstrate prejudice attributable to such failure. Within fifteen (15) days following receipt of written notice from the indemnitee relating to any Third Party Claim, but no later than ten (10) days before the date on which any response to a complaint or summons is due (“Election Notice Period”), the indemnitor shall notify the indemnitee in writing if the indemnitor elects to assume control of the defense and settlement of that Third Party Claim (“Election Notice“). If the indemnitor delivers an Election Notice relating to any Third Party Claim within the required Election Notice Period, the indemnitor shall be entitled to have sole control over the defense and settlement of such claim; provided that (a) the indemnitor’s successful defense or settlement of such claim is reasonably likely to result in the indemnified Party’s release of all liability relating to such claim (b) the indemnitee may participate in the defense and employ counsel at its own expense to assist with such Third Party Claim, and (c) the indemnitor shall obtain the prior written approval of the indemnitee before entering into any settlement of such Third Party Claim that purports to bind the indemnitee. The Parties acknowledge and agree that in the event PARTICIPATING SITE are subject to a claim that is covered under the indemnification obligations in this Agreement, and PARTICIPATING SITE has in place agreements with multiple vendors providing systems or services that are also subject to the same claim against PARTICIPATING SITE, it may not be possible to provide sole control of the defense and settlement of the claim to ENSEO. In such a case, ENSEO shall not in any manner be relieved of its indemnity obligations, provided however, Operator, Owner and ENSEO will work closely together in the defense of such claims, including coordinating strategy and defenses. After the indemnitor has delivered an Election Notice, the indemnitor shall not be liable to the indemnitee for any legal expenses incurred by the indemnitee in connection with the defense of that Third Party Claim. In addition, the indemnitor shall not be required to indemnify the indemnitee for any amount paid or payable by the indemnitee in the settlement of any Third Party Claim for which the indemnitor has delivered a timely Election Notice if such amount was agreed to without the written consent of the indemnitor. If the indemnitor does not deliver an Election Notice relating to any Third Party Claim within the required Election Notice Period, the indemnitee shall have the right to defend the Third Party Claim in such manner as it may deem appropriate, at the sole cost and expense of the indemnitor. The indemnitor shall promptly reimburse the indemnitee for all such costs and expenses.
Confidential Information shall mean any non-public information of the other Party that is designated as confidential, or that the receiving Party knew or reasonably should have known was confidential because it derives independent value from not being generally known to the public. Without limiting the generality of the foregoing, PARTICIPATING SITE’s Confidential Information shall include PARTICIPATING SITE Materials, Personally Identifiable Information, and information regarding PARTICIPATING SITE’s customers, sales, marketing, personnel matters, or means of doing business; ENSEO’s Confidential Information shall include ENSEO’s proprietary methodologies, products, services and software, including without limitation: trade secrets, patented or unpatented inventions or discoveries, improvements, designs, manufacturing techniques, materials, licenses, data collected related to the use and operation of its products and services, operating instructions, software documentation, databases, machinery designs, raw materials or product specifications, drawings, blueprints and other any technical and commercial information relating to the research, design, marketing, development, manufacture, assembly, use or sale of products or services related to the Equipment and/or the System, methods, data, specifications, test data and reports, evaluations, operating parameters, plans, forecasts, budget costs, suppliers, sources, customer information, and distributor information and ENSEO Materials. The terms and conditions of this Agreement shall be considered PARTICIPATING SITE and ENSEO Confidential Information. Confidential Information shall not include any information which: (a) a Party can demonstrate was rightfully in its possession prior to the date of disclosure to it by the other Party; (b) the disclosing Party releases to public domain; (c) a Party can document it developed independently without reference to any Confidential Information of the other Party; or (d) a Party can demonstrate lawfully came into its possession from a third-party who had a legal right to make such information available. Except as provided herein, the Party receiving Confidential Information will not at any time disclose to any person or use for its own benefit or the benefit of anyone, Confidential Information of the other Party without the prior written consent of said Party. Each Party shall limit disclosure of Confidential Information to its (x) employees or agents (such persons hereinafter collectively (“Employees”) who have a need to know related to the Parties’ business relationship, provided the receiving Party ensures that such Employees safeguard the confidential status of the Confidential Information; (y) third party auditors or consultants who have a need to know in order to perform their respective contractual obligations for the receiving Party, provided such third party auditors and consultants are subject to a confidentiality agreement that protects the Confidential Information of the disclosing Party in a manner that is consistent with the terms of this Section or (z) if PARTICIPATING SITE manages the Location, the owner of the Location if such owner has a need to know related to their business relationship with PARTICIPATING SITE. Upon termination of this Agreement or upon the request of the disclosing Party, the recipient of Confidential Information shall promptly deliver to the disclosing Party or destroy any and all such information in its possession or under its control, and any copies made thereof which the recipient of said information may have made, except (i) as the Parties by prior express written permission have agreed to retain and (ii) for copies of Confidential Information stored for regulatory or internal governance purposes, subject to the confidentiality provisions herein. If requested by the disclosing Party, the recipient of Confidential Information shall certify in writing that it has complied with the foregoing requirement to return or destroy Confidential Information in its possession. The Parties acknowledge that in the case of Confidential Information communicated through email or which has been scanned or otherwise stored electronically by the receiving Party, the receiving Party’s deletion of (a) email messages from individual mailboxes or (b) documents from its network or individual hard drives will not result in the removal of all copies of such information from the receiving Party’s back-up or archival systems and any such retained Confidential Information shall remain subject to the obligations of confidentiality herein. Neither the receiving Party’s retention of archival copies nor failure to remove copies from its back-up or archival systems will be deemed a breach of this Agreement. Neither Party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government; provided that, if available, five (5) calendar days’ notice first be given to the other Party so a protective order, if appropriate, may be sought by such Party. The Parties acknowledge and agree that a breach of its obligations under this Section 16 may cause harm to the other Party for which monetary damages are not a sufficient remedy. In such event the Parties understand and agree that the non-defaulting Party shall be entitled to seek to obtain from a court of appropriate jurisdiction immediate injunctive or other equitable relief to which it may be entitled under the circumstances in addition to other remedies allowed under this Agreement and under applicable law.
(a)
Limited Equipment Warranty. ENSEO warrants that Base Station, Consoles and Control Modules Equipment will conform in all material aspects to the Specifications for a period of one (1) year and PLDs will conform in all aspects to their specifications for 30 days after the date the Equipment is installed at the location (the “Equipment Warranty Period”) except as noted in Section 12 (b). During the Equipment Warranty Period, ENSEO shall, in its sole discretion, replace or repair any Equipment that fails to conform to the limited warranty set forth in this Section 12 (a). The limited warranty set forth in this Section 12(a) shall not apply to any Equipment that has been (i) subjected to misuse, neglect, accident or abuse after installation at the Location; (ii) repaired or altered by someone other than ENSEO or its authorized personnel, agents or subcontractors; or (iii) used in a manner other than as permitted by this Agreement and the Documentation included with the Equipment. PARTICIPATING SITE ACKNOWLEDGES THAT THE LIMITED WARRANTY SET FORTH IN THIS SECTION 12 (a) CONSTITUTES THE SOLE AND EXCLUSIVE WARRANTY WITH RESPECT TO THE EQUIPMENT AND THAT THE REPLACEMENT OR REPAIR REMEDIES SET FORTH HEREIN ARE PARTICIPATING SITE’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT THERETO, AND THAT NO OTHER WARRANTIES ARE GIVEN OR IMPLIED AND THAT ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED.
(b)
Exclusion for Batteries. ENSEO’s Limited Equipment Warranty as described in 12 (a) excludes PLD Batteries. ENSEO supplies PLD’s with new batteries sold as complying with generally accepted industry standards. ANY subsequent battery replacement required shall be the sole cost and expense of PARTICIPATING SITE. PARTICIPATING SITE may replace original equipment batteries with specified industry standard replacement batteries without voiding any aspect of the Limited Equipment Warranty described in 12 (a). PARTICIPATING SITE acknowledges that the entire system provided by ENSEO will not function as described without batteries in good condition. PARTICIPATING SITE further acknowledges that that the ENSEO MadeSafe System includes a function that can be used to determine the condition of the battery in any PLD.
(c)
Disclaimer of Services Warranty. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ENSEO MAKES NO WARRANTIES OF ANY KIND REGARDING ANY ENSEO SERVICES AND HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES, EXPRESS OR IMPLIED.
(d)
Force Majeure. If a Party fails to complete, or is delayed at any time in fulfilling its obligations under this Agreement and: (i) such failure or delay is due to a cause beyond such Party’s reasonable control; (ii) such Party is without fault in causing such failure or delay; and (iii) such failure or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by such Party through the use of alternate sources, workaround plans or other means, (“Force Majeure Event”), the other Party will: (1) extend the time of completion for a reasonable time provided the Party continues to use its best efforts to re-commence performance whenever and to whatever extent possible without delay; or (2) excuse the failure to fulfill its obligations provided the Party continues to use its best efforts to comply with such obligations. No such extension or excuse shall be granted unless such Party gives written notice of failure or delay to the other Party within three (3) business days after such Party first has knowledge of the Force Majeure Event and, during such period, both Parties shall be excused from performance with respect to the obligations of the Parties affected by such Force Majeure Event. Delays, preemptions and failures resulting from or arising in connection with a Force Majeure Event shall not be deemed to be a breach of this Agreement and shall not extend the term hereof; provided, however, that either Party may terminate this Agreement if such event of Force Majeure Event continues for a period of thirty (30) business days. PARTICIPATING SITE may terminate this Agreement, applicable attachment or any Exhibit without liability, except for amounts due and payable for ENSEO Services performed or Equipment already delivered hereunder prior to the date of the Force Majeure Event.
(e)
No Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF THE OTHER OR FOR ANY FORM OF DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY THEREOF) WHETHER FORESEEABLE OR NOT (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM NEGLIGENCE OF EITHER PARTY), OCCASIONED BY ANY FAILURE TO PERFORM OR BY THE BREACH OF ANY OBLIGATION UNDER THIS AGREEMENT, OTHER THAN DIRECT DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. Notwithstanding the foregoing, the limitations of liability in this Agreement shall not apply to limit (i) a Party’s defense and indemnification obligations for third party claims under this Agreement; (ii) either Party’s liability to the other Party for Losses incurred by such other Party arising from fraud, gross negligence or willful misconduct of the liable Party; or (iii) PARTICIPATING SITE’s liability for infringement or misappropriation of ENSEO intellectual property rights. IN NO EVENT SHALL THE LIABILITY OF ENSEO TO PARTICIPATING SITE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, OR THE SYSTEM OR ANY PART THEREOF, REGARDLESS OF THE FORM OF CLAIM OR ACTION OR FAILURE OF ESSENTIAL PURPOSE, EXCEED THE AMOUNTS PAID BY PARTICIPATING SITE TO ENSEO DURING THE PREVIOUS TWELVE MONTHS (12) MONTHS OF RECEIVING ENSEO SERVICES.
(f)
Disclaimer of Implied Warranties. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN AND IN ANY SCHEDULE, EXHIBIT, ATTACHMENT HERETO, ENSEO MAKES NO WARRANTIES WITH RESPECT TO THE EQUIPMENT, SYSTEM, SOFTWARE, ENSEO SERVICES OR OTHER SERVICES, AND HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED, TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OR USE, TITLE, NON-INFRINGEMENT, ACCURACY, INTERFERENCE WITH QUIET ENJOYMENT, COMPATIBILITY WITH PARTICIPATING SITE’S SYSTEMS OR SERVICES PROVIDED BY THIRD PARTIES OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. ENSEO DOES NOT WARRANT THAT THE EQUIPMENT, SYSTEM, SOFTWARE, ENSEO SERVICES OR OTHER SERVICES WILL MEET PARTICIPATING SITE’S REQUIREMENTS OR THAT PARTICIPATING SITE’S USE OF THE EQUIPMENT, SYSTEM, SOFTWARE, ENSEO SERVICES OR OTHER SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, FREE FROM DEFECTS, FREE OF SECURITY VULNERABILITIES OR FREE FROM DEGRADATION. ENSEO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY SOFTWARE INCLUDED IN THE SOFTWARE OR THE EQUIPMENT OR SYSTEM.
(a)
Governing Law and Jurisdiction. The laws of the State of Texas without reference to conflict of law principles shall govern this Agreement. For all litigation arising from or relating to this Agreement, the Parties consent to the exclusive jurisdiction of competent Texas state courts or federal courts located in Texas. EACH PARTY HEREBY WAIVES ALL RIGHT TO A TRIAL BY JURY.
(b)
Entire Agreement. This Agreement, exhibits, appendices, or any other attachments constitutes the entire agreement of the Parties relating to the subject matter hereof and supersedes all prior understandings, agreements and documentation relating to such subject matter.
(c)
Notices. Any notice required or permitted by this Agreement shall be in writing and shall be hand delivered, or sent by prepaid registered or certified mail, return receipt requested (if available), or sent by pre-paid courier service, or overnight carrier, in each case addressed to the other Party at the address shown below or at such address for which such Party gives notice hereunder. Notices shall be deemed to have been duly given on the date of delivery, if delivered personally to the party to whom notice is to be given, the next business day if sent by a reliable overnight mail service, or five (5) days after mailing if mailed by United States mail postage prepaid, return receipt requested, properly addressed to the party to whom notice is to be given. E-mail notice shall be sufficient for purposes of this Agreement, provided that it is received by the other Party.
TO ENSEO
Enseo, Inc.
1680 Prospect Drive, Suite 100
Richardson, TX 75081
Attn: Legal
972-234-2513
Legal@enseo.com
Fax: 214-570-3090
TO PARTICIPATING SITE
At PARTICIPAING SITE’s billing address.
(d)
Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, overly broad, excessive, unenforceable, or void, this Agreement shall continue in full force and effect without said provision; and the Parties shall negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the Parties’ intent in entering into this Agreement.
(e)
Survival. Any provision that by its nature should survive shall survive the termination or expiration of this Agreement, including sections concerning Confidentiality, Warranties, Indemnification, and Limitation of Liability and making of any and all payments due hereunder.
(f)
Location of Services. Except as otherwise set forth in writing, all ENSEO Services provided by ENSEO herein shall be performed in the United States. Any relocation of the ENSEO Services shall be subject to the prior mutual agreement of the Parties in writing.
(End of Document)
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