BY ACCEPTING THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ AND UNDERSTAND, AND AGREE TO, THE TERMS OF THIS AGREEMENT, AND THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, EITHER INDIVIDUALLY OR AS AN EMPLOYEE OR AGENT OF AN INDIVIDUAL, ORGANIZATION OR ENTITY ON WHOSE BEHALF YOU ARE ACTING. You agree to waive any defense you may have based on the electronic form of this Agreement and your lack of signature. If you do not accept this Agreement, you may not register for or use the Sense Platform.
THIS AGREEMENT IS SUBJECT TO A MANDATORY ARBITRATION PROVISION AND A WAIVER OF JURY TRIAL AND WAIVER OF CLASS ACTION LAWSUITS—PLEASE READ SECTION 7.8 CAREFULLY.
1. USING THE Sense Platform
1.1 Access. Subject to this Agreement, we grant you a non-exclusive, non-transferable, revocable limited right to access and use the Sense Platform, provided that all such access and use is solely for the permitted purposes described in this paragraph, and in compliance with all applicable Laws. Educators may access, and use, the full range of the Sense Platform for their internal business purposes, which includes performing their existing duties as educators. Students may use the Sense Platform solely for their own personal use and will not have access to the full range of the Sense Platform. Educators are responsible for all activity that happens on or through their account, including their employees’ and other authorized designees’ (e.g., teaching assistants) compliance with this Agreement. When educators direct students to use the Sense Platform, educators are also responsible for the students’ use of the Sense Platform, including under Section 3 (User Indemnification).
1.2 Compliance with Law. You agree not to upload, transmit or disclose any data to the Sense Platform that would constitute “Personally Identifiable Information” under any applicable Laws other than that which is specifically required by Sense in order to create a User account on the Sense Platform, and that you shall be liable for the upload, transmission or other disclosure of such data, whether inadvertent, intentional, or otherwise. Some examples of Personally Identifiable Information include a person’s name, email address, social security number, student identification number, address, date of birth and mailing address. “Laws” include all applicable federal and state communications, export and data security and data privacy laws such as the Family Educational Rights and Privacy Act (“FERPA”) and the Children’s Online Privacy Protection Act (“COPPA”). You agree to comply with all applicable Laws, including by obtaining consent, where appropriate, such as may be required pursuant to FERPA.
1.3 Restrictions on Use. You will not: (a) reverse engineer, disassemble, decompile, otherwise attempt to derive the source code of the Sense Platform, separate the contents of any Sense Platform, or permit others to do any of the foregoing; (b) share any user ID or passwords with any third-party, solicit another user’s login information or access or use another Sense Platform user’s account without permission; (c) allow any unauthorized third-party to access your account; (d) do anything that may jeopardize the security of your account or the Sense Platform; (e) use the Sense Platform to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the Sense Platform, or copy any ideas, features, functions or graphics of the Sense Platform; (f) use the Sense Platform to violate the security or integrity of the Sense Platform or any other network, computer or communications system, software, network or computing device; or (g) “frame” or “mirror” any portion of the Sense Platform. You shall not aid or permit others to do any of the foregoing.
1.5 Ownership. Using the Sense Platform does not give you ownership of any intellectual property rights in the Sense Platform or in the Content. We retain all worldwide right, title and interest in and to the Sense Platform and all “Content” therein, which includes, without limitation, all visual content, audio visual content, text, answer groupings, data, source code, algorithms, authentication tokens, methods, know-how, processes, designs, logos and all worldwide intellectual property rights therein. We own all derivative works and enhancements of Content, including all worldwide intellectual property rights therein. You agree to treat all Content as Confidential Information, regardless of whether it is labeled “Confidential.” Any and all feedback you provide, and any product or service incorporating such feedback, is our sole and exclusive property, and you irrevocably assign to us all intellectual property rights and all other rights and title related to such feedback. We reserve all rights not expressly granted to you in this Agreement.
1.6 Breach. Any breach of this Agreement that occurs through or by your account shall be deemed to have been a breach by you. We may suspend access to the Sense Platform at any time without liability in our sole discretion.
2.1 THE SENSE PLATFORM AND ALL RELATED INFORMATION, DATA, CONTENT AND SERVICES ARE MADE AVAILABLE TO YOU “AS IS” AND WITHOUT ANY WARRANTY, AND WE DISCLAIM ALL WARRANTIES WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION IMPLIED OR STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, ALL OF WHICH ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR OUR AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS, NOR ANYONE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SENSE PLATFORM, WARRANT OR REPRESENT THAT THE SENSE PLATFORM, INCLUDING THE INFORMATION MADE AVAILABLE THROUGH THE SENSE PLATFORM, WILL BE UNINTERRUPTED, UNCORRUPTED, ACCURATE, RELIABLE, COMPLETE, CURRENT, TIMELY, COMPLETELY SECURE OR ERROR-FREE, THAT DEFECTS OR BUGS CAN OR WILL BE CORRECTED, OR THAT THE PAGES OR THE SERVER THAT MAKES THE SENSE PLATFORM AVAILABLE ARE FREE FROM VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS. WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING THROUGH THE SENSE PLATFORM WILL BE FREE OF INFECTION BY SOFTWARE VIRUSES OR OTHER HARMFUL COMPUTER CODE, FILES, OR PROGRAMS. You agree and acknowledge that the Sense Platform is not intended to be used as a substitute for your professional and/or educational obligations. You agree and acknowledge that you bear all responsibility for decisions you may elect to make based on any information you learn in connection with the Sense Platform.
3. user INDEMNIFICATION
You agree to indemnify, defend and hold us, our affiliates, licensors and suppliers, and our and their respective officers, directors and employees, harmless from any losses, damages, costs and expenses (including reasonable attorneys’ fees) directly or indirectly arising out of any claim from any party arising out of or relating to (i) your use of the Sense Platform, unless the claims are covered by our obligations in Section 5; (ii) your noncompliance with applicable Laws or breach of this Agreement; and (iii) User Data.
4. sense indemnification: INFRINGEMENT
4.1 Third Party Claims. If a third party makes a claim against you alleging the Sense Platform (excluding User Data) directly infringes any U.S. patent, U.S. copyright, or trademark or misappropriates any trade secret (“IP Claim”), then we will defend you against the IP Claim and pay all costs, damages and expenses (including reasonable legal fees and costs) finally awarded against you by a court of competent jurisdiction or agreed to in a written settlement agreement signed by us arising out of such IP Claim; provided that: (a) you promptly notify us in writing no later than thirty (30) days after your receipt of notification of a claim or potential claim; (b) you permit us to assume sole control of the defense of such claim and all related settlement negotiations; and (c) you provide us, at our request and expense, with the reasonable assistance, information and authority necessary to perform our obligations under this Section. You may not make any admissions or consent to any judgment or settlement in respect of an IP Claim without our prior written consent.
4.2 Exceptions. We shall have no liability for any claim of infringement based on: (a) the unauthorized modification of the Sense Platform; (b) use of the Sense Platform other than in accordance with the provided documentation and this Agreement; or (c) User Data. If, due to an IP Claim or the threat of an IP Claim, (i) the Sense Platform is held by a court of competent jurisdiction to be infringing, or in our reasonable judgment may be held to infringe by such a court or (ii) you receive a valid court order enjoining you from using the Sense Platform, or in our reasonable judgment you may receive such an order, we may, at our option: (1) replace or modify the Sense Platform to be non-infringing; (2) obtain for you a license to continue using the Sense Platform; or (3) terminate this Agreement upon notice. THIS SECTION 5 STATES THE ENTIRE LIABILITY OF US AND OUR AFFILIATES TO YOU OR ANY THIRD PARTY WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS.
5. LIMITATION OF LIABILITY
5.1 IN NO EVENT SHALL SENSE, OR ITS AFFILIATES, LICENSORS, OR SUPPLIERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR ANY LOSS OF OR DAMAGE TO DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF SUCH CLAIM. OUR TOTAL, MAXIMUM LIABILITY TO YOU WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (I) THE AMOUNT OF FEES PAID BY YOU TO US IN CONSIDERATION FOR YOUR USE OF THE SENSE PLATFORM; OR (II) THREE HUNDRED DOLLARS ($300.00). In the event this limitation of liability or disclaimer of damages is not enforceable in certain jurisdictions, our liability shall be limited in those jurisdictions to the greatest extent permitted by law. Without limiting the foregoing, we are not responsible for your behavior, or for any personal injury, death, property damage, or other harm or losses arising from or relating to your use of the Sense Platform.
6. GENERAL TERMS
6.1 Third Party Website Links and Referrals. Our websites and applications may contain links to other websites operated by third parties and referrals to third party vendors. These third party websites and referrals to third party vendors are not under our control. We provide these links and referrals only as a convenience to you, and do not review, approve, monitor, endorse, warrant, or make any representations with respect to the links and referrals. Your use of these third party websites and referrals to third party vendors is at your own risk.
6.2 Interpretation; Severability. All headings in this Agreement are included solely for convenience, and shall not affect its interpretation. If it turns out that a particular term in this Agreement is not enforceable, this will not affect any other terms.
6.3 Entire Agreement. This Agreement constitutes the entire agreement between, and supersedes any prior or separate agreements, between the parties, with respect to its subject matter.
6.4 Waivers. If you fail to comply with these terms, and we don’t take action right away, this doesn’t mean that we are giving up any rights or remedies that we may have (such as taking action in the future). In the event we decide, in our sole discretion, to waive a term or condition of this Agreement, such waiver will stand alone and will not imply any other waiver of any other term or condition.
6.5 Notices. All notices and consents sent to us under this Agreement must be written and transmitted by confirmed e-mail to email@example.com. Notices shall be deemed received on the date of receipt. Notices to you will be provided through the Sense Platform or as an Update to this Agreement or to the email address you used to register with us.
6.6 Relationship. The parties are independent contractors and nothing in this Agreement shall be construed as creating a partnership, joint venture or agency relationship between the parties, or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other. These terms do not create any third party beneficiary rights.
6.7 Force Majeure. We will be excused from performance for any period during which, and to the extent that we or our subcontractor(s) are prevented from performing any obligation or service, in whole or in part, as a result of causes beyond our reasonable control, and without fault or negligence.
6.8 Governing Law. The laws of the State of Delaware will apply to any disputes arising out of or relating to this Agreement, without regard to conflict of laws principles, and the United Nations Convention for the International Sale of Goods is hereby excluded.
6.9 Dispute Resolution.
(a) Both parties agree to first attempt to negotiate any dispute (except those expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will begin upon written notice from one party to the other.
(b) If the parties cannot come to a resolution within thirty (30) days of commencement of informal negotiations, either party may choose to have the dispute (except those expressly excluded below) finally and exclusively resolved by binding arbitration in Delaware, USA. This election to arbitrate is final and binding. The Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS (available on the JAMS website, www.jamsadr.com) will govern the binding arbitration. The Federal Arbitration Act determines whether a dispute is subject to arbitration. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, both parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
However, if you are not located within the United States and if the foregoing venue provision is unenforceable pursuant to the governing law of your jurisdiction, then any dispute arising from this Agreement will be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce then in effect, by one arbitrator appointed in accordance with such Rules, and such arbitration shall be the exclusive method to settle any dispute relating to this Agreement. The arbitration award, as well as any other decision of the arbitrator (including any conservative or interim measures), shall be final, non-appealable, binding and executory. The arbitration shall be conducted in the English language and it shall have its seat in New York, New York, USA. Judgment on the arbitrator’s decision may be entered in, and enforced by, any court having jurisdiction over the party against which an award is entered or over such party’s assets, and the parties hereby irrevocably waive any defense and any objection to the exercise of jurisdiction by such courts, based on international comity, improper venue or forum non conveniens.
(c) YOU UNDERSTAND THAT ABSENT CLAUSE (b) and CLAUSE (c), YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL, AND SO YOU HEREBY WAIVE THE RIGHT TO A JURY TRIAL.
(d) BOTH PARTIES AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN SENSE AND YOU INDIVIDUALLY. TO THE FULL EXTENT PERMITTED BY LAW: (A) NO ARBITRATION WILL BE JOINED WITH ANY OTHER; (B) YOU WAIVE ANY RIGHT TO COMMENCE A CLASS ACTION SUIT; AND (C) NO DISPUTE MAY BE BROUGHT IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
6.10 Assignment. You may not sell, lease, assign or otherwise transfer any rights granted under this Agreement. Any attempt to do so shall be void and of no effect without our advance written consent. This Agreement will inure to the benefit of and be binding upon any successors and permitted assigns of the parties.
6.11 Location of Service. You acknowledge that we operate and control the Sense Platform from our offices in North America and Israel. We make no representation that the Sense Platform is appropriate or available in other locations. The information provided on the Sense Platform is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Sense Platform from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
6.12 Request for Documentation. Upon our request, you will provide us with any documentation, substantiation or releases necessary to verify your compliance with this Agreement.
6.13 Construction. You agree that this Agreement will not be construed against us by virtue of having drafted it.