Master Subscription Agreement – Conductor for Covid-19
This Master Subscription Agreement (“Agreement”) is entered into on the date of the first access of the SenseiOS® system (the “Effective Date”), between Sensei Labs Inc. with an office at 175 Bloor Street East, North Tower, Suite 301, Toronto, ON, M4W 3R8 (“Sensei”), and the Customer (“Customer”).
1.1. “Business Day” means 9.00a.m – 5.00p.m Eastern Time on any day (other than Saturday, Sunday and any day which is a legal holiday in the Province of Ontario).
1.2. “Customer Content” means all information and data (including but not limited to proprietary images, video, audio, documents, customer information) or any other content in any media and format provided or made available to Sensei by or on behalf of Customer for use in relation to the Customer’s use of SenseiOS.
1.3. “Enabled User(s)” means individuals who are authorized by Customer to use SenseiOS, have user accounts on the Customer’s instance of SenseiOS that are set to “Enabled”, and who have been supplied user identifications and passwords by Customer (or by Sensei at Customer’s request). Enabled Users may include, without limitation, the employees, consultants, contractors, agents or other designees of Customer including the employees of Customer’s Affiliates.
1.4. “SenseiOS®” means Sensei’s proprietary software that allows Enabled Users to manage and publish to multiple networking sites supported by SenseiOS, including any derivatives, modifications or Updates, if any and including any supplemental software code, documentation, or other material provided to Customer as part of the Services, whether in written or digital format.
1.5. “Free Period” means a length of time granted for free use of SenseiOS, beginning with the effective date of this Agreement.
- SENSEI SERVICES
2.1. Use of Services. Access to and usage of the SenseiOS platform is provided during the Free Period (the “Services”).
2.2. Customer’s Content License. Customer grants to Sensei a limited, non-exclusive, non-transferable license, without right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer’s Content for the purpose of providing Services to Customer hereunder and to support Customer’s use of SenseiOS.
2.3. Updates. Sensei may update SenseiOS and such Updates may result in changes in the appearance and/or functionality of SenseiOS .No Update shall disable, delete or significantly impair SenseiOS Sensei shall provide, implement, configure, install, support and maintain any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches and modifications to SenseiOS (collectively, the “Updates”).
2.4. Hosting Services; Service Levels. Sensei shall host, serve, distribute and enable the availability of SenseiOS and shall ensure that SenseiOS is available to Customer in accordance with the service level commitment and response times set forth in the Service Level Agreement (the “Service Levels”).
2.5. Customer Responsibilities. Customer shall (i) be responsible for Enabled Users’ compliance with this Agreement; (ii) be solely responsible to disable inactive users within the SenseiOS Admin tools; (iii) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and of the means by which it acquired the Customer Content; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of SenseiOS and prevent any third party from accessing or using SenseiOS; (v) be solely responsible and liable for all activity conducted through its account in connection with SenseiOS; (vi) notify Sensei promptly if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft or unauthorized disclosure or use of its password(s) or account; and (vii) use SenseiOS only in accordance with applicable laws and government regulations. The Customer must not: (a) reverse engineer, de-compile, hack, disable, disrupt, interfere with, disassemble, copy, decrypt, reassemble, supplement, translate, adapt or enhance any of the Services, SenseiOS including any hardware or software used to provide the Services or any markings of Senseis' proprietary rights; (b) upload to or transmit to SenseiOS any content or anything else that (if reproduced, published, transmitted or used) may violate any law including intellectual property, privacy or other laws, or give rise to civil or other liability; (c) upload to or transmit from SenseiOS any data, file, software or link that contains or redirects to a virus, Trojan horse, worm or other harmful component; (d) disclose results of any Services or SenseiOS benchmark tests without Senseis’ prior written consent; (e) interfere with SenseiOS or any third party's use of SenseiOS or authorize or encourage any third party to do any of the above.
2.6. Third-party Websites. Customer acknowledges that SenseiOS may enable or assist it to access, correspond with, and purchase services from, third parties via third-party websites and that it does so solely at its own risk. Sensei makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party and not Sensei.
2.7. Non Exclusivity. Customer acknowledges that the rights granted to it are nonexclusive, and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict Senseis’ right to (a) license, sell or otherwise make available SenseiOS or Services to any third party; (b) perform any services for any third party; or (c) license, purchase or otherwise acquire any software, technology, products, materials or services from any third party.
2.8. Third-party Contractors. Sensei may use third party contractors to provide some or all of the Services. The Services may be provided using servers and other equipment located in any country including Canada, the United States and elsewhere.
2.9. Sensei Employees/Contractors. Customer will not directly or indirectly at any time during the Term, or for twelve (12) months thereafter: (a) induce or encourage any employee or contractor of Sensei to leave his or her employment or engagement with Sensei; or (b) employ, attempt to employ, assist any person to employ, or retain as a consultant or contractor, any employee or contractor or former employee or contractor of Sensei without Sensei's prior written consent.
2.10. The terms and conditions for a paid subscription to the Services may appear on the registration web page. Any such terms and conditions are incorporated into this Agreement by reference and are legally binding. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.
2.11. ANY CUSTOMER CONTENT YOU PROVIDE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE BY OR FOR YOU DURING YOUR FREE PERIOD WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS THE ONE PROVIDED DURING THE FREE PERIODOR EXPORT SUCH CUSTOMER CONTENT, BEFORE THE END OF THE FREE PERIOD.
- INTELLECTUAL PROPERTY
3.1. SenseiOS. Sensei retains all right, title and interest in SenseiOS and except for the limited rights and licenses granted to Customer pursuant to this Agreement and subject to the applicable obligations and restrictions set forth herein, nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely affect SenseiOS or any of Senseis' rights or interests or any other of Senseis' intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials or rights, tangible or intangible. All rights not expressly granted in this Agreement are reserved by Sensei.
3.2. Customer Content. Subject only to the limited license expressly granted hereunder and Senseis' rights under Section 2, Customer shall retain all right, title and interest in and to the Customer Content and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Sensei any right of ownership or interest in the Customer Content or the Intellectual Property rights therein. Customer is solely responsible for the Customer Content that Enabled Users upload, publish, display, link to or otherwise make available (hereinafter, “post”) on SenseiOS and Customer agrees that Sensei is only acting as a passive conduit for the online distribution and publication of the Customer Content. Sensei will not review, share, distribute, or reference any such Customer Content or post except as provided herein or as may be required by law. Customer agrees to take commercially reasonable steps to ensure that Enabled Users do not post Customer Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to an Enabled User, or any other person or entity; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; or (vi) contains any information or content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships. Customer represents and warrants that the Customer Content does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights or rights of publicity and privacy. Customer understands and agrees that any loss or damage of any kind that occurs as a result of the Customer Content is solely Customer’s responsibility. Sensei is not responsible for any public display or misuse of posts, or Customer Content, except in the case of gross negligence or intentional misconduct by Sensei or its employees. Customer agrees that it will prohibit Enabled Users from uploading material to SenseiOS in violation of the Intellectual Property Rights of any person. Customer also acknowledges that Sensei may use Customer Content and general Customer information for the purpose of supporting and developing SenseiOS and to incorporate into the Services any suggestions, enhancements or recommendations by Customer, on the condition that Sensei utilizes such information in a form that will not personally identify Customer.
- CONFIDENTIAL INFORMATION AND SECURITY REQUIREMENTS
4.1. Confidential Information. Each party will keep the other party's Confidential Information strictly confidential, and will not: (a) use it or take any benefit from it except as required to perform or receive the Services, or (b) disclose it to anyone unless the other party consents or unless the recipient is required by law or court order to do so. In this agreement, "Confidential Information" means all information, data and financial information relating to the business, commercial strategies, pricing, personnel, customers, products or services of a party (the "Discloser") but excludes any information that the other party (the "Recipient") proves (a) was lawfully in the Recipient's possession before receiving it from the Discloser; (b) is provided in good faith to the Recipient by a third party without breaching any rights of the Discloser or any other party; or (c) is or becomes generally available to, or accessible by, the public through no fault of Recipient.
4.2. Security Requirements. Sensei has implemented technical and organizational measures consistent with the prevailing industry standards designed to secure Customer Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, Sensei cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Customer Content for improper purposes.
- TERM AND TERMINATION
5.1. Term. Sensei Labs will make the Services available to Customer free of charge until the earlier of (a) the expiration of the Free Period for which Customer has registered; (b) the start date of any paid subscription purchased by Customer ; or (c) the termination of the Free Period by Sensei Labs, in Sensei Labs' sole discretion.
5.2. Effects of Termination. Upon termination of this Agreement for any reason, other than a purchase of a paid subscription: (a) Customer will immediately cease all use of SenseiOS; and (b) Customer will have no further access to its account in SenseiOS. Account access will be disabled at close of business on the last day of the Free Period, or, if such day is not a Business Day, at close of business on the latest Business Day preceding the last day of the Free Period (the “Termination Date”). Sensei will provide Customer with one (1) data extract of Customer Content in CSV format within two (2) weeks of receipt of Customer’s request for a data extract. For an additional fee, and at Customer’s request, Customer may request additional data extracts or data extracts in a specified format Sensei has no obligation to retain Customer Content, which may be deleted after termination.
5.3. Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, including, without limitation, Article 1, Section 2.5, 2.7, 2.9 Article 3, Article 4, Section 5.3, this Section 5.4, Article 6 Article 7, Article 8 and Article 9 shall survive the expiration or termination of this Agreement.
- REPRESENTATIONS AND WARRANTIES; WARRANTY DISCLAIMER
6.1. By Both Parties. Each Party represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required under this Agreement; (b) the execution and performance of its obligations under this Agreement do not violate any other agreement to which it is a party; (c) this Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered; and (d) all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations.
6.2. By Sensei. Sensei further represents, warrants and covenants to Customer that during the Term Sensei owns or has sufficient rights in SenseiOS to grant to Customer the rights to use SenseiOS..
6.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SENSEI EXCLUDES ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SENSEI SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE OR FREE OF VIRUSES NOR DOES SENSEI WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SENSEI OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. SENSEI DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES INCLUDING ANY LOSS OF CUSTOMER’S DATA. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. SENSEI DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH SENSEIOS, INCLUDING BUT NOT LIMITED TO THE CUSTOMER CONTENT, OR ANY CONTENT, OR SERVICES PROVIDED BY THIRD PARTIES.
- MUTUAL INDEMNIFICATION
7.1. Indemnification by Sensei. Sensei shall defend, indemnify and hold Customer and its directors, officers, employees and agents harmless from and against any and all third-party claims that the Services as provided by Sensei infringe or misappropriate the intellectual property rights of a third party (a "Claim"); provided that Customer (a) promptly gives Sensei written notice of the Claim; (b) gives Sensei sole control of the defense and settlement of the Claim; and (c) provides to Sensei all reasonable assistance. In the event of a Claim pursuant to this Section 7.1, Sensei may, at Sensei's option and at Sensei's expense: (i) obtain for Customer the right to continue to exercise the license granted to Customer under these Terms; (ii) substitute the allegedly infringing component for an equivalent non-infringing component; or (iii) modify the SenseiOS Platform to make it non-infringing. Sensei will have no liability for any Claim to the extent it (i) is based on any negligent or willful misconduct of any Customer Indemnitees; (ii) is based on modification of SenseiOS by or at the direction of Customer or an Enabled User; (iii) results from the failure of Customer to use an updated version of SenseiOS made available to Customer; (iv) is based on the combination or use of SenseiOS with any other software, program or device not provided or specified by Sensei if such infringement would not have arisen but for such use or combination; or (v) results from Customer’s operation of SenseiOS in a manner that is inconsistent with its intended use. For avoidance of doubt, Sensei's indemnification obligations in this section will not apply to third-party content accessed through SenseiOS.
7.2. Indemnification by Customer. Customer shall defend, indemnify and hold Sensei, its affiliates, directors, officers, employees and agents harmless from and against all claims, losses, damages, penalties, liability and costs, including reasonable legal fees of any kind or nature which are in connection with or arising out of Customer’s use of SenseiOS, or the breach of any terms of this Agreement.
7.3. Exclusive Remedy. This “Mutual Indemnification” Section state the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
- LIMITATION OF LIABILITY
8.1. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES THAT WOULD HAVE BEEN PAID OR PAYABLE BY CUSTOMER FOR SERVICES UNDER A PAID SUBSCRIPTION DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SENSEI, ITS DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL SENSEI BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SENSEI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.1. Assignment. Neither party may assign any of its rights or obligations without the prior written consent of the other party (not to be unreasonably withheld). Sensei may assign this Agreement in its entirety (including all Order Forms), without the consent of Customer, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
9.2. Audit. Sensei may audit Customer’s use of the Services and Customer agrees to provide reasonable assistance and access to information without cost.
9.3. Relationship of the Parties. Each Party is an independent contractor. Nothing in this Agreement shall be construed or deemed to constitute a joint venture, partnership or business entity of any kind.
9.4. Force Majeure. Neither party will be in default or liable for any delay or failure to comply with this Agreement due to any act beyond the control of the affected party.
9.5. Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties.
9.6. Amendment. No amendment, supplement, restatement or termination of any provision of this Agreement shall be valid unless it is in writing and signed by each party to this Agreement.
9.7. Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not affect the legality, validity or enforceability of the remaining provisions of this Agreement, or of that provision in any other jurisdiction.
9.8. Marketing. Sensei may, with Customer’s prior permission, identify Customer as a recipient of the Services and use its logo(s) in sales presentations, marketing material, and press releases and for promotional purposes.
9.9. Promotion. At Sensei’s request and Customer’s option, Customer may (i) complete one (1) case study promoting SenseiOS, including video testimonial and copy to appear in Sensei Labs marketing materials and be visible on Sensei Labs.com; and/or (ii) provide references for new Sensei Labs customer prospects.
9.10. Right to Contact. Sensei may communicate with the Customer and the Customer’s Enabled Users. For example, Sensei may send the Customer and the Customer’s Enabled Users product announcements or contact the Customer and the Customer’s Enabled Users about use of the Services. If the Customer or any of the Customer’s Enabled Users do not want to receive communications from Sensei, they can indicate this preference by sending an email to email@example.com and provide Sensei with the name(s) and email address(s) of each Enabled User that no longer wishes to receive these communications. The Customer confirms that it has received full permission from any Enabled Users entered into the SenseiOS platform to receive communication from Sensei.
9.11. Notices. All notices and other communication between the Parties must be in writing and will be deemed given if delivered by hand, double registered mail, or faxed to the recipient at its address set out on the first page of this agreement or at such other address or telecommunication number of which the party gives the other notice. Proof of delivery in that manner will constitute proof of receipt.
9.12. Waivers. No waiver of any provision of this agreement is binding unless it is in writing and signed by all the parties to this Agreement. No delay or failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
9.13. Governing Law. This Agreement and each of the documents in connection with this Agreement are governed and will be enforced and interpreted exclusively in accordance with, the laws applicable in the Province of Ontario.
9.14. Entire Agreement. This Agreement, together with the Exhibits constitutes the entire agreement between the Parties and supersedes any prior or inconsistent agreements, written or oral with respect to the subject matter hereof.
- SERVICE LEVEL COMMITMENT
1.1 The Service Levels described in Section 1.2 do not apply to any performance or availability issues caused by or related to the following (the “Service Level Limitations”):
- A scheduled or announced maintenance outage;
- Problems caused by third-party systems, equipment or data integrated with SenseiOS;
- Problems caused by reasons outside of Senseis' direct control (e.g., natural disaster, Internet outages, emergency maintenance, etc.);
- Problems with Customer’s applications, equipment or data, or a third party’s applications, equipment or data;
- Customer’s failure to adhere to required system configurations and supported platforms for accessing SenseiOS;
- Senseis' compliance with any designs, specifications, or instructions that Customer provides to Sensei or a third party provides to Sensei on Customer’s behalf;
- During or with respect to preview, pre-release, beta or trial versions of a, feature;
- Attempts to perform operations that exceed prescribed quotas or that resulted from throttling of suspected abusive behavior; or
- Any other changes or updates mutually agreed upon by Customer and Sensei.
1.2 Sensei will provide the following uptime and availability for SenseiOS:
- 24 x 7 x 365;
- 99.9% committed service uptime, exclusive of the Service Level Limitations
1.3 Google Chrome is the supported desktop browser for SenseiOS, Safari for iOS, Android browser and Chrome for Android.
1.4 Sensei is not responsible for the uptime or availability of inbound or outbound systems. This Service Level Agreement does not constitute a warranty for performance or functionality of the service provided.
- GENERAL SUPPORT
Sensei will provide Customer with web-based access to the Sensei Labs Support Center for non-engineering, technical support with respect to SenseiOS within the parameters of the response times outlined below.
- RESPONSE TIMES
Target Response Time
Service defect that causes the unavailability of all or part of the Services, with no workaround available.
< 2 hours
Service defect that causes significant performance degradation, with no workaround available that will enable the Customer to utilize the Services without negatively impacting operations and processes.
< 2 business days
Service defects that cause some loss of functionality of the Services, but use of the Services can continue with a workaround solution until a permanent solution is found.
< 3 business days
A general question or a Service defect that affects a small portion of the overall Services and results in operational inconvenience
< 4 business days
Response time indicates the acceptable interval between the occurrence of an event and a Sensei representative commencing an investigation by responding to the initial request task opened by Customer. Sensei will provide an estimated resolution time as soon as possible and will provide frequent updates during the resolution process. Unless specifically requested by the Customer, Sensei will only notify the Customer of resolution progress during normal business hours or when the issue has been resolved. Updates may be requested by the Customer at any time.
Customer orders from Sensei Labs Inc. the Products and Services described in this Agreement Package as of the Effective Date. Customer’s SenseiOS subscription is subject to and governed by the Order Form, Master Subscription Agreement, and Service Level Agreement (the “Agreement Package”). By clicking “Accept”, or utilizing SenseiOS during the Free Period, the Customer indicates its agreement to the terms of the Agreement Package and the party represents that it has the authority to bind the Customer to the terms of the Agreement Package.