OF SENSE-ABLE LTD.
Sense-Able Ltd., is an Israeli company, number 514845188, and any of its affiliates, shall be referred to as “Sense-Able”, “Company”, “we,” “us,” or “our”.
1. ACCEPTANCE OF TERMS
1.3. This Agreement will apply to any use of the Services by you on anyone on your behalf. Without derogating from the foregoing, any use of the Service is subject to this Agreement and all applicable laws, rules, and regulations in the country in which the Services is being used. The responsibility to read, understand and comply with such applicable law is at your full responsibility as a user.
2. THE SERVICES
2.1. The Company will provide the Services, via the Company website at www.sense-it.io (the “Website”), and you may access and use the Services, in accordance with the terms of this Agreement and the online registration page (each a “Registration Form”).
2.2. The Company's platform provides an automated usability testing for digital accessibility (the “Platform”, or the “Services”).
The Company will make the Services available to you via [password-protected online access accessible though the Platform or the internet]. The Company will provide access to Platform as specified in the Registration Form, subject to the Company’s security protocols and policies, and subject, to your acceptance of this Agreement, as may be updated from time to time.
3. DATA SECURITY
3.2. The terms of the Sense-Able Data Processing Agreement (“DPA”) are incorporated by reference to this Agreement and apply to the processing of personal information, which is part of your content. [Note: This is only for the B2B clients]
4. USE LIMITATIONS
4.1. Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the use of the Services shall be subject to the following prohibitions:
4.1.1. You must not sub-license your right to access and use the Services;
4.1.2. You must not permit any unauthorized person to access or use the Services;
4.1.3. You must not use the Services to provide services to third parties;
4.1.4. You must not copy, or make any alteration to, or access the software code of, the Platform or damage, interfere with, or disrupt the integrity, performance or use of the Services;
4.1.5. You must not use the Services in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
4.1.6. You must not create any derivative works of Company's Property (as such term is defined below) or build a similar or competitive product or service to the Platform and/or the Service;
4.1.7. You must provide the Company with any information which it may reasonably require from time to time to enable the Company to perform its obligations under this Agreement;
4.1.8. You must provide the Company, at the earliest possible notice, the details of changes to your policies or procedures that may affect any aspect of this Agreement or the Services; and
5. YOUR UNDERTAKINGS
5.1. You shall use the Services in accordance with the provisions of this Agreement and the guidelines provided by the Company, from time to time.
5.2. Certain portions of the Services may be provided by Company's third-party licensors, and the Company’s ability to provide such portion of the Services is subject to the willingness of such licensors to continue to contract with it.
5.3. Except as otherwise stated hereunder, the Services are provided “as is” and they may be modified, supplemented, or removed from time to time in the Company's sole discretion in accordance with the terms and conditions hereunder.
5.4. Complex software, as the Platform is never wholly free from defects, errors and bugs. Therefore, and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.
5.5. Complex software, as the Platform is, is never entirely free from security vulnerabilities, however, the Company is making efforts to act in accordance with industry practices to prevent such security vulnerabilities.
6. CHANGES TO SERVICES
6.1. The Company may change or discontinue the Services or provide new, additional, or replacement services. In any such case, you will receive a reasonable prior written notification. In the event of a material change to the scope of the Services, you may, within thirty (30) days of receipt of the notification of change, choose to reject such new, additional, and/or replacement services. Unless you provide written notice of your rejection within the said thirty (30) days, the new services will promptly take effect.
7. OWNERSHIP OF COMPANY PROPERTY
7.1. All rights, of any kind whatsoever, including, but not limited to, intellectual property rights, copyrights, trademarks, brands, patents, trade secrets, samples, know-how and/or any other material included and/or associated with the Company's Platform for providing the Services and the operation thereof or the Services, whether said rights are registered or unregistered, are exclusively owned by the Company (collectively, the "Company's Property"). You hereby acknowledge that you shall have no rights of any kind in the Company's Platform and the Services. It is hereby clarified that this Agreement does not transfer any rights in the Company's Property to you.
7.2. The Company hereby grants you, during the Term, a non-exclusive, world-wide rights to access and use any software that the Company has agreed to provide such access to and use of under this Agreement and the relevant Registration Form of the Service for your own business purposes.
8. CONSIDERATION AND PAYMENT TERMS
8.1. In consideration for the right to use the Services under the terms herein, you will pay a subscription fee in the amount and payment terms under the applicable Registration Form (the “Consideration”).
8.2. The Company shall issue invoices for the Consideration to you, [in advance of the period to which they relate.]
8.3. You shall pay the consideration to the Company within the period specified in the applicable Registration Form.
8.4. You shall pay the Consideration by using such payment details as are notified by the Company to you from time to time.
8.5. If the invoice remains unpaid for more than fifteen (15) days, then the Company may suspend further performance of the Services until the payment of the amount in full.
8.6. The Consideration does not include taxes, which shall be added as required by law. You shall bear any and all taxes in connection with any payments made to the Company pursuant to this Agreement as required by law. You shall be entitled to withhold any taxes as required by law, provided, that if you shall provide the Company with valid certificate of exemption as applicable therewith, the Company shall remit you any such withholding taxes.
9. INFORMATION & ADVERTISEMENTS POSTED BY THIRD PARTIES
9.1. The data published at the Website and/or Platform is for marketing purposes only. Use of this information in violation of local laws is prohibited. Sense-Able may display advertisements and sponsors on the Website and/or Platform. Sense-Able does not endorse or recommend the services of any advertiser. The advertiser you select, if and to the extent such is selected by you, is solely responsible for its services to you, their customer. Sense-Able may display links to other sites that may be of interest to you but for which Sense-Able has no responsibility and/or liability in connection therewith. You accept that after leaving the Website to other sites, Sense-Able cannot be responsible in any way for any material that you encounter and we exclude to the fullest extent permitted by law all liability that may arise with respect to or as a result of such material causing any damage, costs, injury or financial loss of any kind.
10. THIRD PARTY SERVICE PROVIDERS
10.1. The use of any third-party vendors, software, or other service providers in connection with the Services, is further subject to the terms and conditions of such third-party, and the services provided thereunder. Furthermore, under certain circumstances, such third-party services may be interrupted, defected or otherwise not be available to the You, due to applicable regulations or other related matters. Without derogating from the disclaimers set forth above, Sense-Able makes no guarantee to the services provided by those third-parties, and shall not be held liable for any losses or damages incurred as a result of any third-party services.
11. TERM AND TERMINATION
11.1. The term of this Agreement commences on the date of your subscription to the Services and continues until the date as set forth in the Registration Form or as provided below (the “Term”). Each party may terminate the Agreement by providing a sixty (60) days' prior notice in writing to the other party.
11.2. Either you or the Company may, without prejudice to the other rights or remedies available to it, immediately terminate this Agreement if the other party:
11.2.1. Fails to perform its obligations under this Agreement or any Registration Form and such failure continues for a period of thirty (30) days following the receipt of a written notice;
11.2.2. Ceases to carry on its business substantially as such business was conducted on the date of this Agreement;
11.2.3. Institutes or suffers the institution against it of bankruptcy, reorganization, liquidation, receivership, insolvency or similar proceedings; or
11.2.4. Becomes generally unable to pay its debts as they become due.
11.3. The Company will be paid for all Services performed and expenses incurred during the Term up to the date of termination. If you terminate a Registration Form or the Agreement without cause while any Registration Form remains uncompleted, you shall pay any remaining Consideration, as set forth in such Registration Form, unless you and the Company have expressly agreed otherwise in the relevant Registration Form. Upon the termination date of this Agreement, the Services granted herein shall immediately terminate (unless otherwise provided in the Registration Form), and the receiving party shall immediately return to the disclosing party, or, if disclosing party has provided a written request, destroy and permanently delete, all of the receiving party’s documents and Confidential Information (as defined below), and all other Services’ deliverables (as such shall be further detailed in each Registration Form) in its possession or control.
12.2. "Confidential Information" shall include, without limitation any data or information that is proprietary to the disclosing Party, whether in tangible or intangible form, in whatever medium provided, whether unmodified or modified by the receiving Party, whenever and however disclosed, including, but not limited to: (i) any marketing strategies, plans, financial information, or projections, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of the disclosing Party; (ii) plans for products or services, and customer or supplier lists; (iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; (iv) any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; (v) any other information that should reasonably be recognized as confidential information of the disclosing party; and (vi) any information generated by the receiving party that contains, reflects, or is derived from any of the foregoing. Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Information. Each party acknowledges that the Confidential Information is proprietary to the disclosing party, has been developed and obtained through great efforts by the disclosing party and that the disclosing party regards all of its Confidential Information as trade secrets.
13. LIMITED LIABILITY
13.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF A PARTY’S INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, CONSEQUENTIAL, SPECIAL, OR LOST PROFITS DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACH OF CONFIDENTIALITY, INTENTIONAL MISCONDUCT OR FRAUD, EITHER PARTY’S MAXIMUM LIABILITY TO OTHER PARTY SHALL BE THE AMOUNTS ACTUALLY PAID OR PAYABLE TO THE COMPANY BY YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CAUSE OF ACTION.
13.2. All the terms and limitations of this Agreement, including the warranty and liability limitations and exclusions, are fair and reasonable in light of the amounts to be paid by you, the nature of the Services, the strength of the bargaining position of each party, the alternative ways that your needs could have been met and the potential benefits and risks for both party in entering into this Agreement.
14.1. To the maximum extent permitted by any applicable law, subject to the limitations described in Section 11 of this Agreement, you agree to indemnify, defend and hold, the Company and its affiliates, and anyone acting on their behalf, harmless, at your own expense and immediately after receiving a written notice thereof, from and against any damages, losses, demands, costs, liabilities, damages and expenses, including attorney’s fees, legal expenses and expert fees’ and other costs of litigation, resulting or arising from, incurred as a result of or in any manner related to your breach of the Agreement or any other use by you of the Services in violation of any applicable law.
15. FORCE MAJEURE
15.1. The Company shall not be liable for any failure to perform its obligations hereunder due to a cause beyond its reasonable control, including without limitation, strike, labor or civil unrest or dispute, embargo, blockage, work stoppage, protest, war, terrorism, or acts of God such as fires, floods, electrical storms, pandemic, and natural catastrophes (including Covid-19). In the event of a force majeure, the performance of the Company's obligations shall be suspended during the period of existence of such force majeure as well as the period required thereafter to resume the performance of the obligation. If the force majeure event continues for more than 90 days the user shall be entitled to terminate this Agreement and receive a pro-rata refund for any pre-paid fees for the period following such termination.
16. GOVERNING LAW
17. CONTACT INFORMATION
Last Updated on June 22, 2022