TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Service are an agreement by and between Sera Systems, Inc. (formerly Service Shift, Inc.), a Delaware corporation located at 923 Minters Chapel Rd., Grapevine, Texas 76051 (“Sera”) and the customer listed in the Commitment Letter (“Customer”) (the “Agreement”), which are in addition to the terms and conditions in the Commitment Letter by and between Sera and Customer. This
Agreement is incorporated by reference into the Commitment Letter. For good and valuable consideration, the sufficiency and receipt of which are acknowledged, Sera and Customer agree as follows:
Section 1. Definitions
Whenever used in this Agreement, the following terms will have the following specified meanings:
“Authorized Users” means employees of Customer or contractors employed by Customer to provide field services or field service management services to Customer who are bound by obligations of confidentiality in a written services agreement between such contractor and Customer.
“Blind Data” means non-personally identifiable information resulting from Customer’s and End User’s access and use of the Services and Software, and representing only statistics, characteristics and metrics about Software operations, usage, and performance, but excluding actual Customer-specific data values.
“Confidential Information” means any information that is proprietary or confidential or that a Party is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a Third Party). Confidential Information may be of a technical, business or other nature (including, but not limited to, any issues or problems concerning a Party, information that relates to a Party’s technology, research, development, products, services, pricing of products and services, customers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). Without limitation of any other statements, any data or other information relating to the design, architecture, specifications, features, functions, performance, operation and other characteristics of the Software and Services is Confidential Information of Sera, and any Customer Data is Confidential Information of Customer. However, Confidential Information shall not include the existence of this Agreement or any information that: (a) is independently developed by the Recipient; (b) is acquired by the Recipient from another source without restriction as to use or disclosure; or (c) is or becomes part of the public domain through no fault or action of the Recipient.
“Configuration Services” means services performed over time or in the future by Sera to configure, setup and customize the Software on behalf of the Customer. Configuration Services do not include integrations or interoperability with third party software systems or business process except where integrations services are provided to Customer by Sera under the terms of the Commitment Letter.
“Defaulting Party” means a Party that has committed a material breach or default in the performance of any of its obligations under this Agreement.
“Discloser” means a Party that discloses Confidential Information to the other Party.
“Documentation” means any user manuals, technical manuals, specifications, hardware configurations, operating environment, training videos or websites, and other documentation relating to the Software and Services supplied by Sera to Customer under this Agreement.
“Integration” means any connections, interoperability, data import or data export, data exchange or transfer or any interaction between the Sera system and any Third Party System, whether such activities are automated or manual, one way or two way.
“License” means the license granted to Customer under Section 3.1.
“Licensed Software”, “Software” means the “Sera Platform Software” and any compiled executable code for the Sera Platform Software, supporting mobile applications, apps, web applications, servers, API’s, service layers, integration services, databases, client software, configuration interfaces, web sites and backup services used for mobile workforce management and asset management, including any Updates and Upgrades to the Software provided by Sera under this Agreement.
“Customer Data” means any data or information belonging to Customer that is processed, stored, made available through, or otherwise used or accessed by the Licensed Software, excluding Blind Data.
“Customer Supplied Items” means any third-party software, hardware, mobile devices, networks, cell data plans, Wi-Fi access points, computers and other items required for the successful installation, implementation, integration or use of the Licensed Software, but not supplied by Sera. Customer supplied items includes all Third Party Systems.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Mark” means any name, trade name, brand, logo, service mark, trademark or trade dress of a Party.
“Party” means Sera, Customer or any Person that acquires all of the right, title and interest of Sera or Customer in this Agreement in accordance with Section 9.3 of this Agreement.
“Person” means a corporation, partnership, trust, governmental organization, individual or other legal entity.
“Proprietary Rights” means any patent, copyright, trademark, trade secret or other intellectual property right protected under the laws of the United States of America, any state of the United States of America, and any jurisdiction or governmental authority outside of the United States.
“Recipient” means a Party that receives Confidential Information of the other Party.
“Services” means, when not used in connection with the term Configuration Services, the APIs, reports, automated business processes, integrations and integration engines, and back-end software and databases provided by Sera that do not have a front-end user interface, but which the Customer will use while using the Licensed Software.
“Term” means the period described in the Commitment Letter.
“Terminating Party” means a Party that has given written notice to the other Party of a material breach or default in the performance of the other Party’s obligations under this Agreement.
“Third Party” means any Person other than Sera or Customer.
“Third Party System” means any software or hardware services, data store, file system, database, storage device or any other computing system that is provided by any party other than Sera, whether on premise at a Customer data center or office, or located at a off-premise location, or hosted by a cloud provider or third party.
“Unauthorized Use” means any use, reproduction, distribution, disposition, possession, disclosure, disassembly, reverse engineer, alteration or other activity involving any Licensed Software, Documentation or Confidential Information that is not expressly authorized under the License or otherwise in writing by Sera.
“End User” and “End Users” means any Authorized Users that access or use the Software in any manner from any device or computer.
“Update” means any software patches, bug fixes or other modifications or revisions to the Software that Sera releases to all other Software licensee customers without additional compensation.
“Upgrade” means any enhancement, upgrades or other revisions to the Software that add new features, functionality or significant changes to the Software for which Sera charges an upgrade fee to its customers.
Section 2. Delivery and Installation Services
2.1 Delivery. The Software and Services will be deemed to be delivered when the Customer has (i) downloaded the apps from an applicable third-party application store, or (ii) installed the software on their devices or (iii) logged into their account on the Software in any of the web or mobile services or APIs provided by Sera.
2.2 Site Preparation. Customer is solely responsible for purchase and configuration of any on or off premise hardware or software, hosted and cloud-based services, network bandwidth, data plans or Wi-Fi access, mobile devices, tables and phones, laptops, computers or other technology that will be used to access the Software or Services, in accordance with minimum specifications as defined by Sera.
2.3 Compliance. Customer is responsible for the use of the Software by its End Users: (i) Customer and its End Users must use the software in compliance with the Acceptable Use provisions set forth below in section 3.6, (ii) Customer will obtain from End Users any consents necessary to allow Customer and Sera to engage in the activities described in this agreement and to allow Sera to provide the Software to End Users, (iii) Customer will comply with all State and Federal laws and regulations that may govern the Customer’s use of software like Sera Software, if any.
Section 3. License
3.1 Grant. Subject to the restrictions and limitations set forth in the remainder of Section 3, and other provisions of this Agreement, Sera hereby grants to Customer a nontransferable, non-assignable, non exclusive license during the Term of this Agreement to: (a) use the Licensed Software, Services, and Documentation for Customer’s internal business purposes only, and (b) authorize End Users to use the Licensed Software on Customer’s behalf for Customer’s internal business purposes only. Updates to the Licensed Software shall (i) be available at no additional charge to Customer, (ii) remain the property of Sera, and (iii) be licensed as “Licensed Software” under this Agreement.
3.2 General Restrictions and Limitations. The License above sets forth the entirety of the Customer’s rights to use, reproduce or otherwise deal with the Licensed Software, Services or Documentation. The License does not permit the Customer to (i) allow access to the Software or Services to End Users in excess of the seat licenses or license subscriptions set forth in the Commitment Letter, (ii) sell, resell, on-sell, lease, sub license the Software , (iii) distribute the Software or Documentation outside of its own End Users who are authorized as End Users, (iv) perform any Unauthorized Use of or perform a use of the Licensed Software, Services or Documentation that breaches the Acceptable Use provisions, or (v) remove, obscure or alter any notice of copyright, any trademark, mark, branding or marketing inclusion in the Software, Documentation or Services, unless a white labeling agreement is included specifically in the Commitment Letter.
3.3 No Third-Party Use. Customer shall not provide any Third Party access to the Software, Services, APIs, apps or Documentation, with the exception of any contractors employed by Customer who are Authorized Users, and who are bound by obligations of confidentiality in a written services agreement between such Third Party and Customer. Customer shall be liable for any breach of this Agreement by its Authorized Users, including any contractors employed by Customer. Allowing competitors of Sera to access, view or otherwise deal with the Software, Documentation or Services in any way is not permitted and will be considered a material breach of this Agreement.
3.4 Third Party Software Integrations. Customer may as part of Integrations specified in the Commitment Letter (if any) request that the Software communicate, interoperate, integrate, respond to requests from, read from, write to, or share data with a Third Party System which is not part of the Licensed Software. Any such activities will be subject to the following restrictions: (i) If Customer uses any third party service, third party contractor, systems integrator, developer or in-house software development or integration resources to connect to the Services, APIs and Servers without using the client applications supplied by Sera to manipulate data, Customer assumes all responsibility for acts or omissions which lead to any kind of data loss, corruption, loss of services or any other kinds of loss which is a result of such API usage, whether direct or indirect; (ii) where third party services or software provided by Customer or their agents are used along with Licensed Software, the failure of such software or services, any defects in their handling of data, or other failures are the sole responsibility of Customer – Sera will not be required to provide any like replacements or make any changes in the event of any issues with third party software or Third Party Systems. (iii) Sera reserves the right to use intermediaries to connect to Third Party Systems where Sera deems it appropriate. If Sera does use an intermediary for integrations and data handling, then Sera warrants that it has vetted the intermediary company and their API’s and has the appropriate contracts, client data confidentiality and non disclosure agreements in place with the intermediary. (iv) Where Sera uses third party add-on services to provide features related to routing, maps, driving directions, or weather services, then Sera will use any data provider or services provider of its choosing at the sole discretion of Sera, is not responsible for the accuracy of this data, and Sera can change service providers at any time.
3.5 Restricted Uses. Customer will not (i) use the Software or Services for activities where use or failure of the Software could lead to physical damage, death, or personal injury; (ii) use the Software or Services for any emergency 911, emergency response or first responder dispatch, routing or services of any nature whatsoever; (iii) use the Software or Services while actively in control of a motor vehicle of any kind; or (iv) disassemble or reverse engineer the Software or Services, nor attempt nor assist anyone else to do so.
3.6 Acceptable Use Policy. Customer and End Users agree to not misuse the Software by attempting to do any of the following: (i) probe or test the vulnerability of the Software, Services, APIs or apps, (ii) circumvent or work around any of Sera security or authentication services built into the Software, Services, APIs or apps, (iii) disassemble or reverse engineer any portion of the Software, Services, APIs or apps, (iv) deliberately interfere with any other End Users or Customers of the system, for example by sending viruses, denial-of service attacks, flooding, spamming or mail-bombing any part of the system, (v) access any part of the system through a mechanism not part of Sera’s authorized and publicly supported API’s, integrations or client applications, (vi) access the data of any other company who is also using the service, except where Customer and the other company have entered into an agreement to share said data and a duly executed agreement describing this arrangement has been provided to Sera, (vii) continue to access the data or another company after a data sharing agreement has been terminated by either Party, (viii) send out any information falsely identifying yourself as Sera, including “spoofing” or “phishing” requests, (ix) use a single user account with multiple users to circumvent account licensing within the Software, (x) provide access to, disclose, distribute or publish any portion of the Software, Services or Documentation to any Third Party, (xi) publish or upload materials that are unlawful or indecent, or (xii) violate the law in any way including storing, saving or capturing data that’s the property of another party, defamatory, misleading or violates the privacy or infringes the rights of others. Violation of acceptable use provisions can result in the immediate suspension or access to the Software in order to protect the integrity of the Software for other customers until issues are resolved.
Section 4. Compensation
4.1 Fees for Licensed Software and Services. Customer will pay Sera all of the fees and charges set forth on the Commitment Letter. The fees are based upon Service subscriptions and licenses purchased and not actual usage. Notwithstanding anything to the contrary herein, in the Commitment Letter or otherwise, the the minimum number of Customer’s paying technicians used to calculate the payment obligations in the Commitment Letter is the greater of the following (i) three (3) and (ii) the number of Customer’s paying technicians stated in the signed Commitment Letter. The payment obligations are non-cancellable and fees paid are non-refundable. Unless otherwise set forth in the Commitment Letter, subscription or license fees are based on annual periods that begin on the subscription or license start date and each annual anniversary thereof; therefore, fees for subscriptions or licenses added in the middle of an annual period will be pro-rated for the remainder of that annual period and for the full annual periods remaining in the Term.
4.2. Invoicing and Payment. Service charges or license fees shall be made in advance on a monthly basis. The monthly payments shall be made on or prior to the beginning of each month, namely the 1st day of each month during the Term. All payments by Customer to Sera shall be made by (i) direct deposit to Sera’s bank account (account information supplied by Sera) on the foregoing dates in immediately available funds or (ii) pre-authorized charges to Customer’s credit card (which will include an additional 3% processing charge). Customer is responsible for making all payments on a timely basis without the need for any invoicing from Sera. Sera has the right to alter the foregoing payment arrangements in its sole discretion with 30 days advance written notice to Customer. Monthly service charges or license fees will begin on the early to occur of (i) launch of the Service or (ii) thirty (30) days after signing the Commitment Letter.
4.3. Overdue Charges. If payment for any invoiced charges are not received from Customer by the due date, then at Sera’s discretion and without limiting Sera’s rights and remedies, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Sera may alter the payment conditions for any future provision of Services to Customer.
4.4 Suspension of Service, Acceleration, and Re-Activation Fee. If any amount owing by Customer under this or any other agreement for the Services is 30 or more days overdue (or 5 or more days overdue in the case of amounts Customer is required to direct deposit to Sera or pay by credit card), Sera may, without limiting Sera’s other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services to Customer until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, Sera will give Customer at least 10 days’ prior notice that Customer’s account is overdue, in accordance with Section 9.2 (Notices) for billing notices, before suspending services to You. If Sera suspends Customer’s access to the Services under this section, then Sera may charge Customer a $1,000 re activation fee to re-enable Customer’s access to the Services.
4.5 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If Sera has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.5, Sera will invoice Customer and Customer will pay that amount unless Customer provides Sera with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Sera is solely responsible for taxes assessable against Sera based upon Sera’s income, property and employees.
Section 5. Proprietary Rights
5.1 Ownership. Customer expressly acknowledges that the Licensed Software, Services, Documentation and Confidential Information of Sera are exclusively owned by Sera and that no configuration or integration of the Software or Services by Customer or their agents confers any proprietary right in the Sera software to Customer. Sera shall own all rights in any modifications or customizations to the Software and/or Services requested by the Customer. Sera may at its discretion and for any purpose, use, modify, license, and/or incorporate into the Software and Services any enhancement requests, feedback, comments, or suggestions made by Customer or End Users to Sera, whether given directly or indirectly through any medium, without any obligation to Customer for payment.
Sera expressly acknowledges that Customer Data and Confidential Information of Customer are exclusively owned by Customer. No title to or ownership of any Customer Data or Confidential Information of Customer, is transferred to Sera or any other Person under this Agreement. Sera will not make Customer Data or Confidential Information available to any third party. No configuration of the Software or Service or use of the Software or Services shall be considered works-for-hire under the Copyright Act.
5.2 Trademarks and Trade Names. All Marks, trade names, registered designs and copyrighted works remain the property of their respective owners and neither Customer nor Sera will use these as part of any advertising, promotional, marketing or other materials without the prior written consent of the other; however, either Party may disclose the existence of this Contract and the other’s name for ongoing promotional purposes.
5.3 Notices. Customer will include appropriate notices preserving the proprietary and intellectual property rights of Sera in any distribution of the Software, Services or Documentation to End Users.
5.4 Additional Protection of Proprietary Rights. Subject to the proceeding sections, each Party agrees to not infringe or violate the proprietary rights and confidential information of the other Party and to prevent all forms of Unauthorized Use of the system. Each Party will promptly notify the other Party of any Unauthorized Use or breach of Confidential Information that comes to its attention. Each Party agrees to take immediate steps to terminate any Unauthorized Use or breach of confidential or proprietary rights as quickly as is reasonable in the circumstances, regardless of whether such actions originate directly or indirectly from either Party or its agents. If any legal proceedings arise as a result of Unauthorized Use, the Party bringing the proceedings must immediately notify the other Party of such proceedings. The other Party may, at its option and expense, assume control of such proceeding. If the other Party assumes such control, such other Party will have exclusive control over the prosecution and settlement of the proceeding, and the Party engaging in such Unauthorized Use will provide such assistance related to such proceeding as the other Party may reasonably request, at no cost to the Party engaging in such Unauthorized Use. The Party engaging in such Unauthorized Use will assist the other Party in enforcing any settlement or order made in connection with such proceeding.
5.5 Protection of Confidential Information. Except for any license or other right expressly granted under this Agreement, each Party reserves any and all right, title and interest that it may have in or to any Confidential Information that it may disclose or make available to the other Party under this Agreement. Recipient will protect Confidential Information of the Discloser against any Unauthorized Use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against Unauthorized Use or disclosure or reasonable protections, whichever is greater. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This section should not be interpreted to prohibit use of confidential information necessary and appropriate for Sera and Customer to fulfill the terms of this Agreement or the Commitment Letter attached. Neither party will be liable for breach of confidentiality of Confidential Information if such party is required by law to disclose Confidential Information to authorities under the terms of a court order, search warrant, subpoena or other similarly binding request where such party is required by law to comply, provided that the compelled party gives prompt notice of each such request, to the extent practicable, to the other party so that they may seek an appropriate protective order and any disclosure is limited to only what is legally required. This section can be waived by written consent of Discloser for individual pieces of confidential information or proprietary information as required. Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.
5.6 Software License Audit Rights. Customer shall permit Sera and its agents, on reasonable notice and at reasonable times and intervals during normal business hours, to audit Customer’s use of the Services to Software to verify that it is in compliance with the license fees, licensed End User account counts and Services inclusions specified in the Commitment Letter.
5.7 Data Collection. Sera shall have the right to utilize data capture, syndication and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze Blind Data. To the extent that Sera collects any Blind Data, such Blind Data shall be solely owned by Sera and may be used by Sera for any lawful business purpose without a duty of accounting to Customer, provided that the Blind Data is used only in an anonymous and aggregated form without specifically identifying the source of the Blind Data. Without assuming any obligations or liabilities of Customer, Sera agrees to comply with the applicable U.S. laws and regulations respecting the dissemination and use of such Blind Data. Sera shall not use any Customer Data for any purpose.
Section 6. Limited Warranties
6.1 Sera Warranties. Sera warrants that (i) the functionality of the Licensed Software will not be materially decreased during the Term; and (ii) the Licensed Software delivered by Sera to Customer will be free of Malicious Code. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
6.2 Exclusions. Sera’s warranties under Section 6.1 do not apply to any noncompliance resulting from any: (i) Customer Supplied Items software or Third Party Software (ii) use not in accordance with this Agreement (iii) modification, damage, misuse or other action of Customer or any Third Party (iv) failure of any Third Party System or Integration with a Third Party System (e) any failure of Customer to comply with this Agreement or Documentation.
6.3 DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF SERA, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, OR DEFICIENCY IN ANY INSTALLATION SERVICES, LICENSED SOFTWARE, DOCUMENTATION OR OTHER ITEMS SUPPLIED BY OR ON BEHALF OF SERA
UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE). SERA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR SERVICE WILL BE ACCURATE, MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE.
Section 7. Term and Termination
7.1 Term. The Term of this Agreement commences when both parties have signed the Commitment Letter or when the Customer first accesses the Software, whichever is the sooner, and continues until the Services subscription or licenses in the Commitment Letter have expired or have been terminated. Unless otherwise agreed in a Commitment Letter, all subscriptions or licenses shall automatically renew for additional periods equal to the expiring subscription or license Term or for one additional year (whichever is shorter) unless either Party gives notice of non-renewal to the other Party at least 30 days before the end of the Term. The Services or license pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless Sera provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. Renewal of any promotional or one-time priced subscriptions or license will be at the Sera standard pricing for the Licensed Software in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which a subscription for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term pricing.
7.2 Termination for Breach of Confidentiality or Restricted Use. If Customer materially breaches the confidentiality provisions set forth in this Agreement or violates the use limitations and restrictions set forth in Section 3, the Agreement shall terminate immediately upon Sera providing written notice of termination to the Customer.
7.3 Material Breach or Default. Except as provided in Section 7.2, if either Party commits a material breach or default under the terms of this Agreement, then the other Party shall give the Defaulting Party written notice of the breach or default (including but not limited to a statement of the facts relating to the breach or default, which provisions of this Agreement it believes have been breached, and the action required to cure the breach or default). If the Defaulting Party does not correct such breach within 30 days after receiving such notice then the Terminating Party can immediately terminate the Agreement at the expiration of the 30 day period.
7.4 Termination for Insolvency. This Agreement shall immediately terminate if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.5 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 7.3 (Material Breach or Default), Sera will refund Customer any prepaid fees covering the remainder of the term of any subscriptions or licenses after the effective date of termination. If this Agreement is terminated by Sera in accordance with Sections 7.2 or 7.3, Customer will pay any unpaid fees covering the remainder of the term of all subscriptions and licenses. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to Sera for the period prior to the effective date of termination.
7.6 Effect of Termination. If this Agreement is terminated pursuant to Section 7, then unless otherwise agreed in writing: (a) the Parties will cooperate to effect an orderly, efficient, effective and expeditious termination of the Parties’ respective activities under this Agreement; (b) the License and any other right granted to Customer with respect to the Software, Services or Documentation will terminate effective of the date of termination (c) Customer will return to Sera any and all Licensed Software, Confidential Information of Sera, or Documentation in the possession or control of Customer (d) Sera will return to Customer or destroy any and all Confidential Information of Customer in its control or possession, excluding any Customer Data which Sera will make available to Customer for export from the Software and Services and which will be deleted by Sera no sooner than 30 days following Termination (e) any and all liabilities accrued prior to the effective date of the termination will survive; and (f) the Parties’ respective rights and obligations under Sections 4, 5, 6, 7, and 8 of this Agreement will survive.
Section 8. Limitations of Liability; Indemnification
8.1 Compliance with Laws. Each Party will comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction.
8.2 No Consequential Damages. NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE, EXCEPT TO THE EXTENT SUCH DAMAGES ARISE FROM A BREACH OF SECTION 5.5 OF THIS AGREEMENT OR CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 OF THIS AGREEMENT. THE PARTIES AGREE THAT DAMAGES FOR WHICH AN INDEMNIFYING PARTY WOULD BE LIABLE UNDER SECTIONS 8.4 OR 8.5 BELOW SHALL NOT FALL WITHIN THE SCOPE OF THIS SECTION 8.2.
8.3 Limitation of Liability. NEITHER PARTY’S LIABILITY TO THE OTHER SHALL EXCEED IN THE AGGREGATE THE COMPENSATION PAID BY CUSTOMER TO SERA DURING THE PRECEDING 12 MONTHS PURSUANT TO SECTION 4 OF THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH LIABILITY ARISES FROM (i) A CLAIM FOR INDEMNIFICATION UNDER SECTIONS 8.4 OR 8.5 BELOW, (ii) A BREACH OF SECTIONS 3.2, 3.3, 3.5, 3.6, 5.4 OR 5.5 OF THIS AGREEMENT OR (iii) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTIONS 4.1, 4.2, 4.3, 4.4 OR 4.5.
8.4 Indemnification by Sera. Sera shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Software or Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement of, a Claim Against Customer, up to an amount of $100,000 in the aggregate; provided that Customer (a) promptly gives Sera written notice of the Claim Against Customer; (b) gives Sera sole control of the defense and settlement of the Claim Against Customer (provided that Sera may not settle any Claim Against Customer without Customer consent unless the settlement unconditionally releases Customer of all liability); and (c) provides to Sera all reasonable assistance, at Sera’s expense. Sera shall not be obligated to indemnify Customer to the extent that such claim, demand, suit, proceeding, loss, liability or expense: (a) is based upon or related to any use of the Software or Services in combination with any Third Party Systems or software, hardware, data or other materials not supplied by Sera and, but for such combination, use of the Software or Services would be non-infringing; (b) is based upon or related to any modification to the Software or Services by any person or entity other than Sera; or (c) is based upon or related to the unreasonable continuing use of an allegedly infringing version of the Software or Services if such alleged infringement could have been reasonably avoided by Customer through its use of a different version of the Software or Services made available to Customer by Sera.
8.5 Indemnification by Customer. Customer shall defend Sera against any claim, demand, suit or proceeding made or brought against Sera by a third party alleging that Customer’s Data or Sera’s use of Customer’s Data with the Software or Services under this Agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Sera”), and shall indemnify Sera for any damages, attorney fees and costs finally awarded against Sera as a result of, or for any amounts paid by Sera under a settlement of, a Claim Against Sera; provided that Sera (a) promptly gives Customer written notice of the Claim Against Sera; (b) gives Customer sole control of the defense and settlement of the Claim Against Sera (provided that Customer may not settle any Claim Against Sera without Sera consent unless the settlement unconditionally releases Sera of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense.
8.6 Possible Infringement. If Sera believes the Software infringes or may be alleged to infringe a third party’s Intellectual Property Rights, then Sera may: (i) obtain the right for Customer, at Sera expense, to continue using the Software; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Software so that they no longer infringe. If Sera does not believe the options described in this section are commercially reasonable then Sera may suspend or terminate Customer’s use of the affected Software or Services (with a pro-rata refund of prepaid fees for the Services).
8.7 Exclusive Remedy. This Section 8 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Section.
Section 9. Miscellany
9.1 Force Majeure. Neither Party will be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (except with respect to monetary obligations) as a result of any cause or condition beyond such Party’s reasonable control. This Section 9.1 will not apply to a monetary obligation of any Party.
9.2 Notices. Except as otherwise provided in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 9.2 Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer in the Commitment Letter All other notices to Customer will be addressed to the signatory of the Commitment Letter Either Party may from time to time change its address by giving the other Party notice of the change by registered mail or an acknowledged email.
9.3 Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Sera. Sera may not assign this Agreement without providing notice to Customer.
9.4 Export Restrictions. The export and re-export of Customer Data via the Software may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Services may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States and Customer must not use the Services in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Services are not provided to persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
9.5 Non-Solicitation. During this Term of this Agreement, and for a period of two (2) years immediately following this Agreement’s termination or expiration, Customer and its affiliates shall not, directly or through Customer’s agent or representative, solicit, recruit for hire or hire any employee of Sera.
9.6 Non-Waiver. Any failure by either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.
9.7 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, without regard to conflicts of laws principles. Any legal proceedings or arbitration shall be brought exclusively in the state or federal courts located in Denton or Dallas Counties, Texas. Customer agrees and acknowledges that a breach of this Agreement by Customer will result in irreparable harm to Sera which harm could not be adequately compensated by an award of money damages, and Customer therefore agrees and acknowledges that Sera shall be entitled to injunctive relief. Except as otherwise provided in this Agreement, any disputes under this agreement shall be resolved by final and binding arbitration administered by the American Arbitration Association (“AAA”) according to the Commercial Arbitration Rules. The arbitration shall be conducted by a single arbitrator mutually selected by the Parties. If the Parties cannot agree on an arbitrator within thirty (30) days from the filing of a demand for arbitration with the AAA, the arbitrator shall be chosen pursuant to the Commercial Rules. The arbitration shall be conducted in Dallas, Texas.
9.8 Amendments. The terms of this Agreement may be amended by mutual written consent of both parties. Any such amendments will modify this agreement and shall become binding on both Parties.
9.9 Severability. Unenforceable provisions of this Agreement will be modified to reflect the Parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
9.10 Entire Agreement. This Agreement (including the Commitment Letter) constitutes the entire agreement, and supersedes any and all prior agreements, between the Parties with respect to the Licensed Software and Services provided or to be provided under this Agreement.