The following terms have the following meanings:
“Analytics Data” shall mean the marketing and other analytics data generated by the Services in connection with Client’s use of the Services.
“Authorized User” means any employees, independent contractors, agents or representatives of Client, subject to any limitations or restrictions set forth on an Order. For the avoidance of doubt, individuals staffed by Client to work at third party entities are not deemed Authorized Users.
“Client Content” means any information, data, text, logos, pictures, or other materials or content provided by Client in connection with Client’s use of the Services. For the avoidance of doubt, Client Content does not include Analytics Data.
“Confidential Information” means all information disclosed by one Party to the other in connection with this Agreement or otherwise obtained by the Receiving Party, which the receiving Party knew or reasonably should have known was the confidential information of the disclosing Party. Confidential Information shall not include information that (i) is publicly available through no fault of the Receiving Party, (ii) is independently developed by the Receiving Party, or (iii) is rightfully obtained by the Receiving Party from independent sources free from any duty of confidentiality. Confidential Information shall include the terms and pricing in this Agreement, but not the fact that this Agreement has been signed, the identity of the Parties or the specific services purchased by Client.
“Data” means Analytics Data and Personal Data.
“Documentation” means Sense’s on-line documentation, as updated and amended from time to time.
“Feedback” means feedback, suggestions, improvements, and recommendations regarding the Proprietary Items.
“Sense’s Trademarks” means Sense’s trademarks, trade names, logos, and designations.
“Order” means Sense’s standard order form executed by both Parties, substantially in the form attached as Schedule A to this Agreement, or an order in another form that is executed by both Parties and references this Agreement.
“Personal Data” means any data which by itself or combined with other information would identify a specific individual.
“Proprietary Items” means, collectively, the Services and Documentation, the visual expressions, screen formats, report formats and other design features of the Services and Documentation, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Services or Documentation, all future modifications, revisions, updates, refinements, improvements and enhancements of the Services or Documentation, all derivative works based upon any of the foregoing, and all copies of all of the foregoing.
“Reports” means the assessment reports generated through the use of the Services, including all Analytics Data and other data, information, or content therein.
“Services” means the limited access and use rights to the portions of Sense’s proprietary data staffing engagement tool, analysis, and Report creation platform.
Subscription Rights. Subject to the terms and conditions of this Agreement including full payment of all fees, Sense hereby grants to Client and its Authorized Users a non-exclusive, non-transferable (except in connection with a permitted assignment) license (i) during the applicable Order term, to access and use the Services in accordance with the Documentation and subject to the limitations set forth on the applicable Order and (ii) in perpetuity, to use the Reports solely for Client’s internal business purposes.
Client Content License. Client hereby grants Sense a fully paid, royalty-free, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to (a) during the Term, use, distribute, reproduce, modify, adapt, perform, and display Client Content for the purposes of operating, providing, enhancing, improving, supporting, and maintaining the Services for Client. Sense is responsible for complying with all applicable laws and regulations in relation to such contact with Consultants, including the Telephone Consumer Protection Act of 1991 and CAN-SPAM Act of 2003, as may be amended.
Sense Obligations. Sense shall host, operate, maintain, and support the Services, including any Client Content uploaded, posted, or otherwise transmitted to the Services by Client or its Authorized Users. Sense shall provide to Client standard support for the Services at no additional charge in accordance with Sense’s standard support policies. Client may request support services by contacting Sense solely through the method set forth on the applicable Order. Sense will use reasonable commercial efforts to make the Services available not less than 99.9% of the time in any given month, subject to scheduled downtime and other parameters imposed by Sense’s web service provider. Sense shall have no obligation to provide any additional services to Client, including, training, implementation, or any support or maintenance in excess of Sense’s standard support policy, unless Client purchases such services as set forth in an Order. From time to time in accordance with Sense’s generally applicable procedures, Sense may make available to Client updates, upgrades, enhancements, and error corrections to the Services that Client has purchased at no additional charge when such updates, upgrades, enhancements and error corrections are generally made available to its other clients at no additional charge.
Usernames and Passwords. Subject to any user limitations set forth in the applicable Order, Client may register Authorized Users on the Service with e-mail addresses and passwords to enable Authorized Users to access the Services pursuant to this Agreement. Each e-mail address and password may only be used to access the Services during one (1) concurrent login session. Client will ensure that each e-mail address and password issued to an Authorized User will be used only by that Authorized User. Client is responsible for maintaining the confidentiality of all Authorized Users’ passwords, and is solely responsible for all activities that occur under these accounts. Client agrees: (a) not to allow a third party to use Client’s accounts at any time; and (b) to notify Sense promptly of any actual or suspected unauthorized use of an account or any other breach or suspected breach of this Agreement. Sense reserves the right to terminate any accounts that Sense reasonably determines may have been used by an unauthorized third party. Authorized User accounts and their associated e-mail addresses and passwords cannot be shared or used by more than one individual Authorized User, but an account may be reassigned from time to time to a new Authorized User who is replacing a former Authorized User who has terminated employment or otherwise changed job status or function and no longer uses the Services. Client is solely responsible for all access to and use of the Services by its Authorized Users and all access to and use of the Services through any Authorized User’s account.
Restrictions. Client shall not (and shall not permit any Authorized User to) (a) make the Services available to any third party other than Authorized Users, (b) resell, lease, distribute, transfer or otherwise make available the Services on a time-sharing or service bureau basis, (c) provide Client Content that is infringing, libelous, disparaging, or is otherwise unlawful or tortious material, or store or transmit material in violation of any third-party’s proprietary or privacy rights, (d) use the Services to promote any unlicensed, unfair, or illegal activities or for deceptive or illegal purposes, (e) use the Services to store or transmit malicious code, (f) use or access the Services in any way that potentially harms, harms, or otherwise threatens the reputation, integrity, performance, or availability of Sense, any Sense client, the Services or any data therein, (g) attempt to gain unauthorized access to the Services, other client content, or any data stored or processed therein, (h) decompile, disassemble, or reverse engineer the Services, in whole or in part, except as permitted by applicable law, or (i) use or access any Proprietary Items to create (or have created) a competing or similar service. Sense may restrict or prohibit use or access to the Proprietary Items if Sense suspects such use or access is a breach of this Agreement, does not comply with the Documentation or the limitations set forth in an Order, or is otherwise objectionable or threatens the reputation of Sense, any Sense client, or the Services or any data therein.
Fees and Expenses. Client shall pay to Sense, without offset or deduction, the fees and expenses as determined under any Orders and this Agreement. Sense reserves the right to increase the fees each year, but must provide notification of such increases at least ten (10) days in advance of the expiration of Initial Term (as defined below). For Multi-Year Agreements, for each Term Year subsequent to the 1st Term Year, any applicable Service(s) as set forth in the Schedule A, will remain at their prior Term years contracted minimum or then current usage at the beginning of each Term Year, whichever is higher. Sense reserves the right to reconcile applicable product(s) Quantity on a periodic basis, and, if such number exceeds Client's contracted minimum, Sense reserves the right to invoice Client for the corresponding amount on a pro rata basis.
Taxes. The fees and other amounts payable by Client to Sense do not include any taxes of any jurisdiction that may be assessed or imposed upon the Proprietary Items, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon Sense’s net income. Client shall directly pay any such taxes assessed. Client shall promptly reimburse Sense for any taxes payable or collectable by Sense (other than taxes based upon Sense’s net income). If Client has provided Sense with proof of its tax exempt status, then, in the event that Client’s tax exempt status should become altered, Client shall be obligated to notify Sense immediately of any such modification and Client shall become liable for all taxes as set forth above. In the event Client fails to notify Sense of any such change, Client shall be liable for payment of any tax related penalties or interest assessed against Sense or Client as a result of such Client failure.
Payment Terms. Sense may accept and process payment (including renewals) from Client by either credit card (e.g., Visa, MasterCard, or any other issuer accepted by Sense), wire transfer, or check, as mutually agreed. If payment will be made by credit card, Sense will process payment (including renewals) from Client based on any credit card information Sense is provided by Client. Client’s credit card agreement governs its use of the designated credit card or account. By providing Sense with credit card information, Client agrees that Sense is authorized to invoice and charge Client’s account for all fees and charges due and payable to Sense and that no additional notice or consent is required. If Client’s credit card issuer rejects any amount charged on Client’s credit card, then Sense will notify Client thereof and Client will timely pay the fees and expenses by check or wire transfer. If payment will be made by check or if Client’s credit card issuer rejects any amount charged on Client’s credit card, amounts owed to Sense will be invoiced to Client’s address for invoices as designated by Client or, if not designated, then the address printed on this Agreement. If any Client payment is more than thirty (30) days past due, interest at the rate of twelve percent (12%) per annum (or, if lower, the maximum rate permitted by applicable law) shall accrue. Unless otherwise specified in this Agreement, all fees and other amounts paid by Client under this Agreement are non-refundable. Sense requires auto-payment for recurring installments of less than $10,000. All dollar amounts referred to in this Agreement are in United States Dollars.
Suspension. In the event that Client’s account is more than thirty (30) days overdue on any payment for any reason, Sense shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Client’s use of the Proprietary Items, without further notice to Client, until Client has paid the full balance owed, plus any interest due.
ALL PROFESSIONAL SERVICES, PROPRIETARY ITEMS, AND REPORTS ARE PROVIDED “AS IS” AND SENSE MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SENSE DOES NOT REPRESENT OR WARRANT THAT: (A) THE PROPRIETARY ITEMS OR REPORTS WILL MEET ANY FORECASTS, EXPECTATIONS OR SPECIFICATIONS OF CLIENT; (B) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (C) THE USE OF THE SERVICES WILL NOT RESULT IN A LOSS OF CLIENT CONTENT OR OTHER CLIENT DATA; OR (D) THE USE OF THE SERVICES WILL NOT EXPOSE THE CLIENT’S HARDWARE OR NETWORKS TO ADDITIONAL SECURITY RISK. SENSE DOES NOT MAKE ANY GUARANTEES ABOUT THE ACCURACY, CURRENCY, SUITABILITY, OR QUALITY OF THE REPORTS, AND DOES NOT ASSUME RESPONSIBILITY FOR INACCURATE OR MISLEADING REPORTS. CLIENT IS SOLELY RESPONSIBLE FOR ARCHIVING AND RETAINING ANY AND ALL CLIENT CONTENT OR DATA UPLOADED TO, DOWNLOADED FROM, OR PROCESSED IN OR THROUGH, THE SERVICES.
IN NO EVENT WILL SENSE BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOST REVENUE, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL ORDERS, OR THE USE OF THE PROPRIETARY ITEMS BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SENSE’S TOTAL LIABILITY UNDER THIS AGREEMENT, INCLUDING ALL ORDERS, SHALL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY THE CLIENT TO SENSE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY.
All Confidential Information of a Party (“Disclosing Party”) in the possession of the other (“Receiving Party”), whether or not authorized, shall be held in strict confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential Information. The Disclosing Party’s Confidential Information shall not be used or disclosed by the Receiving Party for any purpose except (a) as necessary to implement or perform this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees or representatives whose responsibilities require such use or access and who are bound by obligations of confidentiality at least as protective as those herein. The Receiving Party shall advise all such employees and representatives, before they receive access to or possession of any of the Disclosing Party’s Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Section.
Client acknowledges that all Client Content is the sole responsibility of the Client. Client, and not Sense, is entirely responsible for all Client Content that Client uploads, posts, transmits or otherwise makes available through the Services.
Client represents that Client owns and/or has all license rights necessary to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, communicate, perform anddisplay Client Content in the manner Client will use such Client Content on or through the Services.
Sense has no obligation to pre-screen Client Content, although Sense reserves the right in its sole discretion to pre-screen, refuse, or remove any Client Content. Client hereby provides its irrevocable consent to such monitoring.
Title and Ownership
All right, title, and interest in and to the Client Content (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of Client.
All right, title, and interest in and to the Proprietary Items, the Reports (except any Client Content therein), and Sense’s Trademarks (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of Sense and Sense reserves all rights not expressly granted by this Agreement. Any derivative works, modifications, or enhancements relating to the Proprietary Items (whether created alone by either Party or jointly by or on behalf of both Parties), the results of any professional services performed, and any Feedback relating thereto will be solely and exclusively owned by Sense. Client hereby assigns to Sense any rights, title and interest, including all intellectual property rights in any Feedback, derivative works, modifications, enhancements, or improvements related to the Proprietary Items that Client or any of its Authorized Users or representatives provide, propose, create, conceive, author or develop relating to this Agreement or their use of the Proprietary Items. Client will execute and deliver (or cause its representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Sense’s rights described above and the intent of this Section.
By Sense. Sense shall defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim that the Services infringe any U.S. copyrights or misappropriates any trade secrets recognized as such under the Uniform Trade Secrets Act, and Sense will pay those costs and damages finally awarded against Client in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Client giving Sense (a) prompt written notice of such claim (except that delayed notification will not negate Client’s obligations if such delay did not materially prejudice Client’s ability to defend the claim); (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Sense may reasonably request, at Sense’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Sense shall have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (1) Client Content or the combination, operation, or use of the Services with products, services, deliverables, materials, technologies, business methods or processes not furnished by Sense; (2) modifications which were not made by Sense; or (3) Client’s breach of this Agreement or use of the Services other than in accordance with this Agreement (collectively, “IP Exclusions”). Upon the occurrence of any claim for which indemnification is or may be due under this Section, or in the event that Sense believes that such a claim is likely, Sense may, at its option (i) modify or replace the Services so that they become non-infringing; (ii) obtain a license to the applicable third-party intellectual property; or (iii) terminate this Agreement (or the applicable Orders) on written notice to Client and refund to Client any pre-paid fees for Services not provided based on the remainder of the then current Term. The obligations set forth in this Section shall constitute Sense’s entire liability and Client’s sole remedy for any infringement or misappropriation.
By Client. Client shall indemnify, hold harmless, and, at Sense’s option, defend Sense from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, losses, and liabilities for any actions arising out of any (a) IP Exclusions, (b) Client Content (including without limitation any third party claim that any Client Content is false, misleading, disparaging, infringing or a misappropriation, as applicable, of any intellectual property rights of a third party), or (c) Client breaches of its obligations in this Agreement. Sense agrees to give Client: (i) prompt written notice of such claim (except that delayed notification will not negate Client’s obligations if such delay did not materially prejudice Client’s ability to defend the claim); (ii) authority to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as Client may reasonably request, at Client’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Client shall not settle any third-party claim, unless such settlement completely and forever releases Sense with respect thereto or unless Sense provides its prior written consent to such settlement. In any action for which Client provides defense on behalf of Sense, Sense may participate in such defense at its own expense by counsel of its choice.
This Agreement shall commence on the Effective Date and shall continue for the duration as defined on the Schedule A under Term Length (“Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for a new term equal to the Initial Term length (each a “Renewal Term”, together with the Initial Term, the “Term”), unless one Party provides the other Party at least ninety (90) days written notice prior to the end of the then current Term of its intent to not renew the then current term (“Non-Renewal Notice Deadline”). Automatically renewed Agreements will renew at the most recent Term Year Quantity or then current usage at the time Auto-renewal, whichever is higher. Either party may terminate this agreement immediately on giving notice in writing to the other party if the other party:
commits a material breach (including any non-payment of fees due) and, in the case of a material breach capable of being cured, failed to cure that breach within thirty (30) days after the receipt of a request in writing to cure such breach; or
(i) files for bankruptcy; (ii) becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of all or substantially all of its creditors; or (iv) enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations; provided, however, if the non-terminating party provides adequate assurances regarding its ability to continue performing the other Party may not terminate.
If an Order is terminated, Client shall immediately discontinue use of the Services for the applicable Order. Subject to Sections 2.2 (Client Content License) and 2.3 (Data), upon any termination or expiration of this Agreement, whether under this Section or otherwise, all Orders shall immediately terminate and Client shall discontinue all access and use of all Proprietary Items, and each Party shall promptly return or destroy (at the election of the other Party) any Confidential Information of the other Party then in such Party’s possession or control.
Client shall remain liable for all unpaid payments due to Sense with respect to the period ending on the date of termination or expiration of the Agreement or any applicable Orders. In the event this Agreement is terminated by Client in accordance with Section 9.1 for Sense’s material breach, Sense shall refund to Client any pre-paid fees for Services not provided for any applicable Orders based on the remainder of the then current Term. Except in the event this Agreement is terminated in accordance with Section 9.1 for Client’s material breach, Sense will make Analytics Data and Reports available to Client for thirty (30) days after termination or expiration of this Agreement. The provisions of Sections 1, the perpetual terms of Sections 2.1 and 2.2, 2.3, 2.7, 3.2, 3.3, 4, 5, 6, 7, 8, and 10 shall survive any termination or expiration of this Agreement.
Publicity. Client authorizes Sense to use Client’s name in any routine list of Sense clients and as a reference. Each Party, with prior written consent of the other Party, may publicize the Services to be offered under this Agreement in its marketing and advertising material, and may reproduce the company name, logo, trademark, trade name, service mark, or other commercial or product designations of the other Party in connection therewith; provided, however, that such prior written consent shall not be required for either Party to give the other’s name and disclose this Agreement in connection with any filings or press releases which it deems in its good faith discretion to be necessary under federal or state securities laws.
Notice. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the first business day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.
Assignment. Client may not, without Sense's prior written consent, assign, delegate, pledge, or otherwise transfer this Agreement, any Order, or any of its rights or obligations under this Agreement or any Order to any third party, whether voluntarily or by operation of law. A sale of assets, merger, or consolidation will be deemed an assignment for the purposes of this Agreement. Any attempted assignment in violation of the foregoing will be null and void.
Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the state of California excluding choice of law; provided, however, that the terms of any applicable law now or hereafter enacted that is based on or similar to the uniform computer information transactions act drafted by the national conference of commissioners on uniform state laws shall not apply. Each Party irrevocably agrees that any legal action, suit or proceeding brought by it that in any way arises out of the Agreement must be litigated exclusively in state court in San Francisco County, California or in a federal court in the Northern District of California.
Force Majeure. Except with respect to Client’s payment obligations, neither Party shall be liable for, nor shall either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care.
Export Laws and Use Outside of the United States. Client shall comply with all applicable export related laws and regulations. Client shall not export or re-export directly or indirectly (including via remote access) any Proprietary Items (or parts thereof) to any applicable jurisdiction or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority. Client will defend, indemnify and hold harmless Sense from and against any violation of such laws or regulations by Client or any of its agents, officers, directors, or employees.
Relationship. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint venturers or agents.
Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by an authorized representative of both Parties. This Agreement may not be modified or amended without written agreement of the Parties. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement.
Order of Precedence. In the event of a conflict between the provisions of the Master Terms and Conditions and the terms of any Order, the Master Terms and Conditions shall control. Any pre-printed terms in an order document or written purchase authorization that add to, or conflict with or contradict, any provisions in the Master Terms and Conditions will have no legal effect.
Interpretation. The Section headings of this Agreement are for convenience and will not be used to interpret this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
Severability. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such unenforceable portion of the provision will be deemed severed from this Agreement, (b) the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and (c) this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.
Entire Understanding. This Agreement, which includes and incorporates Orders, states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.