License Terms and Conditions

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EMANO METRICS INC. (“EMANO FLOW”) AND LICENSEE AGREE THAT THESE EMANO TERMS & CONDITIONS (“TERMS”) SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY EMANO PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO LICENSEE SET FORTH IN A DOCUMENT INCORPORATING THESE TERMS (AN “ORDERING DOCUMENT”).  AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENTS, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENTS OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT”.  IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.

Licensee and Emano agree as follows:

“Emano Flow” means the entity Emano Metrics Inc., a Delaware C Corporation, with Governing Law defined in section 12.k, and Jurisdiction and Venue defined in section 12.j below.

“Licensee” means the party to whom Emano is to provide products or services pursuant to the Ordering Document (whether identified as “licensee”, “customer”, “client” or similar designation in the Ordering Document). If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination, or modification of this Agreement.

1. Emano Flow, directly or through an affiliate, agrees to provide to Licensee the products and/or services set forth in the Ordering Document (the “Services”). The Services may include information (the “Licensed Materials”), access to and/or use of software or other technology (the “Emano Flow Technology”), or other services including premium support. Specific Services may be defined by and are subject to the Services Definitions and Service-Specific Terms and Conditions included with the Ordering Document. Emano Flow will make the Services available to the Licensee via password-protected online access accessible by Licensee with email addresses and passwords. Subject to the terms and conditions herein, Emano Flow grants to Licensee a non-exclusive, non-transferable license to access and use the Services in accordance with this Agreement and during the Term of this Agreement. 
2. Proprietary Rights. All right, title and interest in and to all copyrights, trademarks, patents, trade secrets, intellectual property (including, without limitation, improvements, modifications, derivative works, and information collected and analyzed in connection with the Application) and other proprietary rights arising out of or relating to the Application and all updates and upgrades thereto, along with any derivative works and enhancements, belong exclusively to Emano Flow. Emano Flow reserves all rights not expressly granted in this Agreement, and no rights are granted or implied by waiver or estoppel.
3. Confidentiality. This Agreement, the terms of this Agreement, and information provided by one Party to the other in connection with this Agreement are confidential and shall not be disclosed to any third party by the receiving Party without the written consent of the other Party; provided that each Party may share such information with their employees, managers, directors, and advisors on a need-to-know basis as necessary to perform their obligations and exercise their rights under this Agreement, so long as such individuals are also bound to treat such information as confidential. Notwithstanding the foregoing, information shall not be considered confidential and no Party shall have any obligation with respect to information that (a) is or becomes publicly available without fault of the receiving Party, (b) was in the possession of the receiving Party without an obligation of confidentiality prior to disclosure by the other Party, or (c) is received from a third party without an obligation of confidentiality. To the extent that disclosure is required by law, the receiving Party shall provide notice of the intended disclosure to the other Party (to the extent permitted by law) and shall take all reasonable steps to limit the extent of the disclosure to the minimum required to comply with the receiving Party’s legal obligation.
4. Protection of Data. Information and data collected through the Application will be handled as set forth in Emano Flow’s Privacy Policy, available at emanoflow.com/privacy-policy, the terms of which are incorporated herein. Emano Flow shall comply with all laws applicable to its provision of the Application, including those related to privacy and data security. Emano Flow will implement, maintain and use appropriate administrative, technical and physical safeguards to, among other things, preserve the security, integrity and confidentiality of, and to protect against unauthorized access to, or loss of, the data created for or received from or on behalf of Licensee or a Patient in connection with a Patient’s use of the Application. Emano Flow and Licensee are entering into a Business Associate Agreement concurrently with this Agreement.
5. Feedback. Feedback, comments or suggestions by Licensee are voluntary and may be used by Emano Flow for any purpose without obligation of any kind. 
6. Term. The Initial Term of the Agreement is that which is set forth in the Ordering Document (together with any period of extension under Section 2 hereof, the “Term”). The Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to its terms. 
7. Automatic Extension of the Term. On the date that is 30 days prior to the last day of the Term (the “Extension Date”), the Term will automatically extend for a period equal to the length of the Initial Term or one year, whichever is longer, unless either party, on or before the Extension Date, notifies the other in writing that the Term shall not so extend. In the event that the Term is extended under this paragraph: (a) Licensee shall remain subscribed during such period of extension to the Services to which it was subscribed as of the Extension Date, and (b) the Subscription Fees to be paid to Emano Flow for such Services during such period of extension shall be equal to the annualized amount of the Subscription Fee applicable to all Services to which Licensee was subscribed as of the Extension Date. Subscription Fees for the period of extension hereunder shall be due upon extension of the Term and shall be payable as invoiced. Emano Flow will invoice Subscription Fees for any period of extension on an annual basis or in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date, in Emano Flow discretion. 
8. Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. The parties may terminate this Agreement at any time upon their mutual Agreement.
9. Warranties. The Application is being provided under this Agreement on an “AS IS” basis. Emano Flow disclaims all express, implied, or statutory warranties, including warranties of quality, title, non-infringement, merchantability and fitness for a particular purpose.
10. Marketing. Licensee hereby authorizes Emano Flow to use Licensee’s name and logo for its marketing efforts unless and until such authorization is revoked in writing.
11. Limitation of Liability. IN NO EVENT WILL EMANO FlOW BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES ARISING OUT OF RELATING TO THIS AGREEMENT OR USE OF THE APPLICATION REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH SUCH LIABILITY IS BASED. THE AGGREGATE LIABILITY OF EMANO FLOW, AND THE SOLE REMEDY AVAILABLE TO Licensee UNDER THIS AGREEMENT SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND DAMAGES NOT TO EXCEED THE TOTAL AMOUNT PAYABLE OR PAID TO EMANO FLOW UNDER THIS AGREEMENT DURING THE TERM.
12. Miscellaneous. 

1. Relationship of the Parties. The Parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party.
2. Notices. Notices to a Party may be submitted to such Party in writing at the address set forth in the preamble to this Agreement. 
3. Third Party Rights. This Agreement does not create any rights for any person who is not a party to it and no person who is not a party to this Agreement may enforce any of its terms.
4. Assignment. Neither Party shall, directly or indirectly, by operation of law or otherwise, transfer or assign this Agreement, or transfer, assign or sublicense any rights granted hereunder, with the exception of an assignment carried out as part of a merger, restructuring, or reorganization, or as a sale or transfer of all or substantially all of a Party’s assets, without having secured the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. 
5. Notices. Licensee shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to Emano Flow shall be sent to accounts@emanometrics.com. If Licensee fails to provide an email address for notices, Emano Flow may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.
6. Currency. All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated. 
7. Compliance with Laws. Each Party shall comply with all applicable state, federal and local laws, executive orders and regulations in the performance of its obligations under this Agreement.
8. Force Majeure. Neither Party shall be liable to the other by reason of any failure of performance hereunder if such failure arises out of causes beyond such Party's reasonable control, despite the reasonable efforts, and without the fault or negligence of such Party. A Party experiencing such an event shall give as prompt notice as possible to the other Party under the circumstances.
9. Authority to Contract. Each Party represents that it has the full power and authority to enter into this Agreement and to convey the rights herein conveyed.
10. Jurisdiction and Venue. Should any claim or controversy arise between the Parties under the terms of this Agreement or in furtherance of this Agreement, such claim or controversy shall be resolved only in the state or federal courts located in the State of Oregon, and said state and federal courts for the State of Oregon, shall be the only appropriate jurisdiction and venue therefore. 
11. Modifications. We may, on occasion, modify these License Terms and Conditions with discretionary notice. Any such modification will be effective immediately upon public posting. Your continued use of our Service following any such modification constitutes your acceptance of these modified Terms.
12. Governing Law. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Delaware. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
13. Severability. If any provision of this Agreement is held invalid or unenforceable under any applicable law, such invalidity or unenforceability will not affect any other provision of this Agreement that can be given effect without the invalid or unenforceable provision, and this Agreement shall be construed as if said invalid or unenforceable provision had not been contained herein.
14. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, and all such counterparts shall constitute but one instrument.

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