PLEASE READ THIS AGREEMENT (“MADESAFE AGREEMENT”) CAREFULLY BEFORE USING THE MADESAFE PRODUCTS, SOFTWARE AND SERVICES. BY USING THE MADESAFE PRODUCTS, SOFTWARE AND SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE PRODUCTS, SOFTWARE AND SERVICES.
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.
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.
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.
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.
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