All capitalized terms used herein shall have the meaning set forth in the License Agreement or Purchase Order (“LA”).
Subject to all terms hereof, Sentiance hereby grants Licensee (i) a non-exclusive, non-transferable, revocable license to install and use the Sentiance SDK in object code solely for the purposes of integrating the Sentiance SDK into one Licensee mobile application (“Mobile Application”) and to distribute the Sentiance SDK as part the Mobile Application and have such Mobile Application used by End Users, and (ii) a non-exclusive, non-transferable, revocable right to access through a web interface the Sentiance software-as-a-services platform (“Platform”) that makes available information on End User routine behavior based on device data provided through the Sentiance SDK integrated in the Mobile Application installed on mobile devices of the End Users (such information and device data hereinafter jointly the “Data”). “End User” shall mean any person to which Licensee distributes its Mobile Application. A reference to the “Sentiance SDK” includes a reference to any part thereof and to any relating documentation.
Licensee is authorized to duplicate the Sentiance SDK for internal test and development purposes and for distribution of the Mobile Application to End Users. Licensee is further allowed to make a reasonable number of copies of the Sentiance SDK for non-productive backup and recovery purposes. Any and all such copies shall in all respects be subject to the terms and conditions of this agreement. Licensee shall not make copies of the Sentiance SDK additional to those expressly permitted in this agreement nor copy any documentation accompanying the Sentiance SDK other than as strictly needed for its permitted use. Licensee shall not remove or obscure any copyright and/or trademark notices or other proprietary notices in the Sentiance SDK. All notices must be duplicated as they appear on the Sentiance SDK on all authorized copies.
Licensee may combine the Sentiance SDK with its Mobile Application. Except to the extent expressly permitted by law, Licensee shall not otherwise modify, adapt, merge or create derivative works of the Sentiance SDK nor electronically transfer into another computer language, translate, reverse engineer or reengineer the Sentiance SDK. Licensee will not (i) disclose its Platform credentials (“Credentials”) to any third party; (ii) disclose the Sentiance SDK to any third party other than (x) its service providers that are under obligations in respect of the Sentiance SDK no less stringent than those set forth herein, or (y) End Users as an integrated part of the Mobile Application; (iii) attempt to access any systems, programs or data of Sentiance to which no access is granted hereunder or that are not required for Licensee’s activities in connection with this agreement; or (iv) use any device or software to interfere or attempt to interfere with the proper operation of the Platform. Licensee will notify Sentiance immediately if it learns of any unauthorized use of its Credentials or unauthorized acquisition of Data. Licensee will not, and will ensure that its End Users shall not decompile, disassemble, analyze or examine the Sentiance SDK or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the Sentiance SDK (except to the extent allowed by the applicable laws), e.g. for the purpose of reverse engineering, re-engineering or rebuilding an SDK with the same or similar functionalities.
Licensee shall pay to Sentiance the License Fee according to the Payment Frequency set forth on the LA to which these terms and conditions constitute an annex. All amounts are exclusive of VAT (or any similar tax) which Licensee will pay at the rate from time to time prescribed by law. Payment of Sentiance’s invoices will be made within thirty (30) days of the invoice date by bank transfer in EUR free of any deductions. All invoices shall be deemed accepted unless disputed in good faith within thirty (30) days after the invoice date. If an invoice is disputed, Licensee shall pay the undisputed portion of the invoice when due. Any amount due but not paid in full on the due date shall automatically and without prior notice be increased with an interest for late payment of ten percent (10%) per year. This amount will, by way of indemnity, automatically and without prior notice be increased by ten percent (10%) with a minimum of one hundred EUR (€100) from the day following the due date of the invoice, in addition to the principal amount and the interest for late payment. In addition to any other rights under this agreement, Sentiance shall have the right to suspend the use of the Platform and connectivity of the Sentiance SDK in case of late payment. Licensee will fully reimburse Sentiance the costs of notice, collection and recovery (including attorney’s fees and expenses) made in connection with any unpaid invoice. Sentiance may increase the fees on an annual basis by giving thirty (30) days prior written notice to Licensee, provided that the annual percentage increase in the fees shall not exceed the aggregate percentage increase of the Belgian Consumer index.
5. Intellectual Property Rights
The Sentiance SDK and the Platform are protected by applicable Belgian and foreign laws and treaties, including copyright laws and treaty provisions. Sentiance and its third party licensors retain all title to, and, except as expressly and unambiguously licensed herein, all rights and interest in the Sentiance SDK and the Platform and all copies, versions, enhancements and derivative works thereof (other than the Mobile Application) and all related documentation and materials, the Sentiance trademarks, trade names, icons and logos, and any and all intellectual property throughout the world in the foregoing. Except for the limited license granted herein, nothing herein shall be construed as Sentiance granting to Licensee or an End User any right, title or interest in or to the Sentiance SDK or the Platform or any patent, trade secret or other intellectual property rights of Sentiance. All copies of the Sentiance SDK remain the property of Sentiance. The Data shall be owned by Licensee. Sentiance has the worldwide, non-exclusive, irrevocable, perpetual, royalty-free and fully paid-up right to use these Data in aggregated form for its internal business and marketing purposes, which include building statistical models and profiles. Sentiance may utilize all comments, suggestions and reports, whether written or oral, furnished by Licensee to Sentiance in connection with its access to and use of the Platform and the Sentiance SDK (“Feedback”). Licensee hereby grants to Sentiance a worldwide, non-exclusive, irrevocable, perpetual, royalty-free and fully paid-up right and license to incorporate the Feedback into Sentiance products and services.
Each party (the “Recipient”) acknowledges that any information supplied by the other party (the “Provider”) (including but not limited to the terms of this agreement and the Sentiance SDK) is confidential and undertakes to keep secret any such information until it enters the public domain through no fault of Recipient. Recipient shall not without Provider’s prior written consent disclose the information to any third party, nor use the same for any purpose other than exercising its rights or performing its obligations under this agreement. Recipient shall take all steps necessary to prevent any of the information becoming known to unauthorized third parties other than its agents, consultants and advisors subject to such agents, consultants and advisors entering into confidentiality agreements no less restrictive than the provisions hereof.
(as amended from time to time at Sentiance’s sole discretion), (iii) the Mobile Application does not infringe upon third party rights and is not vulgar, profane, pornographic or obscene, and (iv) it will maintain appropriate administrative, technical and physical security safeguards with respect to its Credentials. Licensee shall not make any representations or warranties to any End User that are inconsistent with the warranties and representations contained herein. Other than as expressly set forth herein, Sentiance does not make any express or implied warranties, conditions, or representations to Licensee or the End User with respect to the Sentiance SDK or the Platform or otherwise regarding this agreement, whether oral or written, express or implied. Without limiting the foregoing, any implied warranty or condition of merchantability, the implied warranty against infringement, and the implied warranty or condition of fitness for a particular purpose, quality, accuracy or availability are expressly excluded and disclaimed. Sentiance does not warrant that the use of the Sentiance SDK or the Platform shall be uninterrupted or error-free or that there will be no loss of transmitted information. Sentiance shall have the right, but not the obligation, to monitor the Mobile Application and the Data in order to determine compliance with this agreement. In the event that Sentiance determines that the Mobile Application or the (use of) Data violates the provisions of this agreement, Sentiance may suspend Licensee’s use of the Platform, terminate this agreement and/or make such disclosures on the Mobile Application or the (use of) Data as it deems appropriate. To the extent personal information is collected or processed by Sentiance in the scope of this agreement, Sentiance will act as a data processor for Licensee and warrants that (i) it will abide by all applicable laws and regulations, including data transfer and privacy laws, (ii) it will only process personal information as strictly required under this agreement, (iii) it will handle such personal information as Licensee’s confidential information, (iv) it has implemented appropriate technical and organizational measures to protect such information against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing, and (v) it will comply with all reasonable written instructions issued by Licensee in respect of the processing of such information. Sentiance will refer any request of a data subject in respect of its personal information collected or processed by Sentiance to Licensee.
8. Liability and indemnity
To the maximum extent permitted by law, Sentiance will not be liable for (i) any lost data or other indirect or consequential damages of any character, including, without limitation, damages for loss of profits, loss of goodwill, work stoppage, device failure or malfunction, or any and all other commercial damages or losses, (ii) the cost of procuring substitute products, services or technology, (iii) any use or loss of Data by Licensee or by any third party who has obtained such Data (directly or indirectly) from Licensee, or (iv) any amounts in excess of the License Fees paid to Sentiance under this agreement during the six (6) months preceding the date the cause of action arose. Licensee assumes total responsibility and risk for its use of the Sentiance SDK and the Data and distribution of the Mobile Application. Licensee shall indemnify, defend and hold Sentiance harmless from and against all claims, suits, proceedings, awards, judgments, penalties, damages, losses, liabilities, costs and expenses resulting from any and all third party (including End Users and public authorities) claims against Sentiance relating to any breach of this agreement by Licensee or the End Users or any use of the Data (or loss of Data) by Licensee or by any third party who has obtained such Data (directly or indirectly) from Licensee. As used in this section, “Sentiance” includes its employees, directors, officers, agents, representatives, subcontractors, service providers and suppliers. Claims for damages must be made by Licensee within six months of the incident to which they relate or be forever barred.
This agreement enters into force on the Commencement Date and shall terminate on its one-year anniversary (“Initial Term”). This agreement shall automatically renew for successive one-year periods (each, a “Renewal Term”) unless one party notifies the other in writing at least sixty (60) days prior to the end of the Initial Term or any Renewal Term that it does not wish to renew this agreement . This agreement and the rights granted to Licensee shall terminate on receipt of termination notice if Licensee fails to comply with any of the terms and conditions of this agreement (including non-payment within the time period specified in Section 4). Either party may terminate this agreement upon written notice in the event that the other party files a petition in bankruptcy or proceedings in bankruptcy are instituted against it, or any court assumes jurisdiction of such party and its assets pursuant to proceedings under any bankruptcy or reorganization act, or a receiver is appointed of that party’s assets or that party makes an assignment for the benefit of its creditors. Upon termination, all licenses granted herein shall terminate, Sentiance may (but shall not be obliged to) erase all Data, and Licensee shall immediately destroy all copies of the Sentiance SDK (including any documentation relating thereto) in its possession and remove the Mobile Application from the application stores or any other locations from which it can be downloaded. Such termination shall be without prejudice to any other rights or remedies of Sentiance under this agreement or applicable law. Termination shall not relieve Licensee of its obligations which by their nature are intended to survive termination. Sentiance reserves the right to change, modify and discontinue the Sentiance SDK or any part of the Platform at any time.
10. Importation and Exportation
Licensee acknowledges and agrees that it shall not import, export, or re-export the Sentiance SDK (including as part of the Mobile Application) to any country in violation of the laws and regulations of any applicable jurisdiction. Licensee shall defend, indemnify, and hold Sentiance harmless from any losses, costs, claims, or other liabilities arising out of Licensee’s breach of this Section.
In the event that any provision hereof shall be held to be invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect. This agreement is governed by and construed under the laws of Belgium, without regard to its conflicts of law principles. The parties agree that any legal proceeding with respect to or arising under this agreement shall be brought exclusively in the Courts of Antwerp, Belgium. Sentiance has the right to disclose any Licensee and End User information and the Data to law enforcement authorities, government officials or a third party, as Sentiance believes is reasonably necessary to enforce or verify compliance with this agreement or comply with the law. Sentiance may refer to Licensee as one of its clients. These terms and conditions jointly with the LA represents the entire agreement between the parties with respect to the subject matter covered by this agreement. The provisions of the LA shall prevail over the provisions of these terms and conditions in the event that their provisions are in direct conflict. These Terms and Conditions may not be modified or amended except by a writing signed by the parties. The failure of either party to enforce any provision of this agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this agreement. Neither this agreement nor any of Licensee’s rights or obligations hereunder can be assigned by Licensee without the previous written consent of Sentiance.
Last updated: Wednesday, December 9, 2015.