SENSE EDUCATION TERMS OF USE
We, Sense Education, Inc.
(also referred to as “Sense”),
develop and operate a proprietary artificial intelligence platform that helps
instructors worldwide provide personalized educational feedback to open-ended
assignments and helps students gain a better understanding of their work (the “Sense Platform”). By using the Sense Platform, you, the person
using the Sense Platform, are agreeing to these Terms of
Use (also called the “Agreement”).
This Agreement is binding on any person or entity who accesses or uses the
Sense Platform, including those who create an account on behalf of a third
party.
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.
We may change, modify, add or remove portions of these Terms
of Use (each, an “Update”) from time
to time without prior notice, and such Updates will be effective immediately,
so we encourage you to frequently review these Terms of Use. If we make an Update, we will change the “Last Updated” date
above. Your continued use of the Sense
Platform confirms your acceptance of the Update. If you do not agree to the
updated Terms of Use, you should discontinue using the Sense Platform. We may also change, modify, add or remove
portions of the Sense Platform from time to time.
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.
1.4
License to User Data. Subject to this
Agreement, you grant us a non-exclusive, non-transferable royalty-free, perpetual, worldwide, license
to use, copy, modify, translate, transmit, monitor, retrieve, store, create
derivative works from, distribute and display your data transmitted, uploaded
and/or generated to or through the Sense Platform (“User Data”), to
provide
the Sense Platform to you and to improve performance of the Sense Platform;
provided, however, that we may generate, use and disclose aggregated and/or
statistical data derived from User Data in furtherance of our business
purposes. User Data includes, without
limitation, any submission, or other works of authorship, in connection with
your use of the Sense Platform, and all information recorded and/or stored in your account in connection with
your use of the Sense Platform. You represent and warrant that you have
all rights and consents necessary to transmit, upload or otherwise disclose
User Data to us, and that the User Data does not infringe or violate the rights
of any party, including without limitation any intellectual property rights or
rights of privacy or publicity. We will
maintain administrative, physical, and technical safeguards for protection of
the security, confidentiality and integrity of User Data, and our use of User
Data is governed by our Privacy Policy, the current version of which is found
on our website: Privacy_Policy. By accepting this Agreement, you
agree to all of the terms of the Privacy Policy, which are a part of this
Agreement. However, we cannot guarantee that unauthorized third parties will
never be able to defeat our security measures; you acknowledge that you are
providing User Data at your own risk.
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.
DISCLAIMER
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 info@sense.network. 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.
6.14
Statute of Limitations. Both parties
agree that regardless of any statute or law to the contrary, any claim or cause
of action arising out of or related to use of the Sense Platform or this
Agreement (including the Privacy Policy) must be filed within ONE (1) YEAR
after such claim or cause of action arose or will be forever barred.
PLEASE PRINT THESE TERMS OF SERVICE FOR
YOUR RECORDS.