SenseMaker® Access and Use Agreement

SenseMaker Online Access & Use Agreement

Welcome to Cognitive Edge’s SenseMaker Online. Cognitive Edge offers SenseMaker on a “SaaS” basis—Software as a Service, which we call SenseMaker Online. This Agreement governs your use of SenseMaker Online. This document, incorporating your SenseMaker Online Service Orders, is a legal agreement that is binding on Cognitive Edge and you.Please note that under this Agreement you are being granted access and use of SenseMaker Online only for your internal uses.

1. Definitions

“Agreement” means this document and the relevant documents such as invoices or your SenseMaker Online Service Orders, all of which are incorporated into this Agreement.

“Client Site” means each website that you specify in your SenseMaker Online Service Orders. Each such site is where your users (see the definition below for “Contributors”) will see and respond to your requests for replies, etc. The number of Client Sites that you establish is set forth in each SenseMaker Online Service Order.

“Client Site Term” means, for each Client Site, the period specified in the SenseMaker Online Service Order for that Client Site to be operational—i.e., accessible by your Contributors to provide their Replies. If you have multiple Client Sites, then you would have multiple Terms, some of them overlapping.

“Cognitive Edge” has the meaning given it in Section 2.

“Contributor” means each individual who provides Replies on the relevant Client Site.

“Dashboard” means the location, accessible by your browser, where you can obtain information regarding each Client Site.

“Mobile App” means the application developed by or on behalf of Cognitive Edge for use on certain iOS and Android mobile devices supported by Cognitive Edge.

“Narrative” means the qualitative response (such as a “story” or a paragraph describing an event, observation, experience, photo, video, or audio recording) that Contributors provide when using the Signification Framework.

“Order Term” means the period you have requested to use SenseMaker Online. If you have ordered multiple Client Sites for differing periods of activation (i.e., a “Client Site Term”) then your Order Term will include all of those periods.

“Output” means the Replies and SenseMaker Analysis.

“Reply” means the information (including Narratives) provided by each Contributor in his or her use of the Client Site. Please note that we do not review the Replies and they are not edited, validated or verified by us.

“SenseMaker Analysis” means the results from applying certain functionality of SenseMaker Online to the Replies.

“SenseMaker Online” means the features and functionality of some Cognitive Edge software accessible online for the services specified in each of your SenseMaker Online Service Orders, and could include: SenseMaker Pre-configurations; each Client Site; each Signification Framework and Signifiers for each such Client Site; and such other features and functionality as Cognitive Edge may provide from time to time.

“SenseMaker Online Service Order” means the order form (or forms) that you submit to Cognitive Edge and that is accepted. Each such form specifies such information as the number of Client Site you want to activate and the period each such site will be activated.

“SenseMaker Pre-configurations” means certain online templates created by, on behalf or or in collaboration with Cognitive Edge such as SCANs, MassSense, CrowdSense, etc.

“Signification Framework” means the set of Signifiers and other requests for responses (e.g., demographic data you request Contributors to provide) displayed on a Client Site during its Client Site Term.

“Signifier” means the requests for responses from Contributors relating to an event, situation, policy, etc., and excluding requests for responses such as for demographic data. For example, a request for a Narrative and then questions or other requests regarding that narrative would be “Signifiers.” A request for a Contributor to identify as male/female, etc., would not be a Signifier.

“We” and related terms have the meaning given them in Section 2 below.

“You” and related terms have the meaning given them in Section 2 below.

2. Who Is Agreeing to this Agreement?

The terms you and your refer to your organization and each user that uses your access to SenseMaker Online. Those terms do not include any affiliates, subsidiaries, partners, subcontractors or others. Please contact us at agreements@cognitive-edge.com if you wish to negotiate use by such companies. We, our, us and Cognitive Edge mean Cognitive Edge (USA) Inc.

This Agreement binds everyone who visits any Client Site and/or uses SenseMaker Online through your access, whether or not you have authorized that use. You are responsible for anything arising from any use, unauthorized or not.

3. How Do I Agree?

Your acceptance of this Agreement starts on the date that agree to these terms when you click the “I agree” button. At that point this Agreement takes effect and governs your use of SenseMaker Online.

4. Providing the Services

Through SenseMaker Online Cognitive Edge provides certain features and functionality to enable you to collect certain information provided by Contributors and access to those data from time to time for your analysis, provided that such collection and access is at all times only in strict accordance with this Agreement. Cognitive Edge may arrange for its parent corporation or third parties to perform some or all of the tasks for delivering the Services (e.g., hosting, web design, storage).

Set-up
During the Set-up phase, Cognitive Edge provides technical support for your account access and in preparation of that number of Client Sites you have ordered. Those Client Sites will be available during this period in a “testing” environment. If you have contracted for consulting services (such as design), then the Set-up phase would be when those consulting services would commence. Please note that such services are subject to their own terms in a different agreement.

“Go Live”
Once you have paid the amounts you owe, Cognitive Edge will “go live” with the Client Sites you have specified—meaning that your Contributors can access the relevant Client Site during the Clients Site Term specified. You will be provided with:

• Each Client Site hosted at a unique URL where your Contributors can provide Replies

• Access information (e.g., username and password)

• Access to and use of the Dashboard (from which you can download Output)

• Access to the Mobile App

Availability and Types of Services
Cognitive Edge provides SenseMaker Online with the intention, but not the obligation or guarantee, that it will be available almost all of the time, excluding downtime for maintenance or other reasons, including those reasons outside of our control. SenseMaker Online might not be available also because we have suspended or terminated your account (which is explained below). Some features or functionality of SenseMaker Online might not be available in certain territories (e.g., because of legal reasons in such territories) or because of the scope of services you have requested. At any time, Cognitive Edge may change or choose to stop providing certain features and functionality of SenseMaker Online or it may add additional features and functionality.

Third-party Websites, Software or Applications
You might find links to other websites or use the results of SenseMaker Online with other applications such as those you use internal to your company. Cognitive Edge is not responsible for your use of those other websites or other applications.

5. Using SenseMaker Online

When you enter into this Agreement, Cognitive Edge authorizes you to access and use SenseMaker Online for the period specified in your SenseMaker Online Service Order, subject to the terms of this Agreement.

Access by Others
You are authorized to provide access to each Client Site only (1) to the Contributors for them to provide their Replies and (2) to your employees and other representatives you have authorized to use SenseMaker Online. You remain fully responsible for their use.

Your Information
Output is hosted by or on behalf of Cognitive Edge during the Order Term. Cognitive Edge will only have access to the Output for maintenance and performance purposes, legal purposes (such as litigation or governmental requests for information) and for its research. Cognitive Edge will always make sure that for such research it uses only anonymized information that does not identify you.

Certain Limitations
You agree that Cognitive Edge is not and will not be responsible for your use of SenseMaker Online and any information derived from it. You must use any such information solely in compliance with this Agreement and with any other restrictions on that information (e.g., terms of service, labor or employment agreements or other policies that may apply to you).

What You Cannot Do
You shall not (i) modify or make derivative works based upon any or all SenseMaker Online; (ii) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make SenseMaker Online or any part of it available to any third party in any way except in accordance with this Agreement; (iii) access, or permit others to access, SenseMaker Online for any reason, including without limitation to develop a competitive product, other than to use it for its the purposes intended by Cognitive Edge; (iv) reverse engineer any of SenseMaker Online or create any “derivative work” for any reason except for interoperability purposes permitted by governing law; (v) use SenseMaker Online in a manner that violates any laws; and/or (vi) use SenseMaker Online in a manner that (A) violates any term(s) of this Agreement, (B) otherwise is not consistent with the general intent of this Agreement and/or (C) would violate Cognitive Edge’s intellectual property rights.

Any person intending to use SenseMaker Online for solicitation purposes and/or for any other purpose regulated by law should consult with his or her own legal counsel prior to entering into this Agreement to determine the extent of permissible activities.

Compliance with Law
In addition to the above obligations you represent and warrant that your use of SenseMaker Online and data from such use comply with all applicable laws and including the laws of non-US jurisdictions in which your use of SenseMaker Online may result in jurisdiction over your actions. You hereby assume all responsibility and liability for any violation of such representation and warranty.

Certain Liabilities
You assume responsibility for all costs and expenses of any kind, including reasonable attorneys’ fees, as they are incurred by Cognitive Edge in connection with or related to any actual, alleged or threatened violations by you of any applicable laws and/or regulations.

6. The Period of Your Use of SenseMaker Online

You are permitted to access and use SenseMaker Online during the period specified in the relevant SenseMaker Online Service Order. As noted in the definition section above, that period is called the “Order Term.”

Once the Client Site Term is over for a given Client Site, that Client Site will be deactivated—i.e., your users (Contributors) will no longer have access to post their Replies. You will still have access to the information you have gathered and will be able to download it for as long as you have specified in your SenseMaker Online Service Order. Contact us at agreements@cognitive-edge.com if you would like to extend the Client Site Term for any Client Site.

At the end of the Order Term you will no longer have access to the relevant Client Sites and the related information (you can still use the information that you have downloaded; please see Section 8 below). Upon termination, Cognitive Edge can elect to delete any information you have collected or created, although it may choose to maintain an archive copy for legal purposes.

Archiving Information
If you would like to have Cognitive Edge archive information (e.g., Client Sites, Output and Results, etc.) for your later use, please email your request to agreements@cognitive-edge.com for terms.

Suspending or Terminating Your Account
Cognitive Edge has the right to suspend or terminate your access to SenseMaker Online at any time and without notice if Cognitive Edge believes that: (i) you have violated or will violate this Agreement or any other agreement you have with Cognitive Edge; (ii) you have failed to pay in accordance with your payment obligations; and/or (iii) your access may result in injury to Cognitive Edge or third parties or violation of law or regulations or an investigation by governmental authorities as to your use. If a governmental authority advises Cognitive Edge that it believes that your access violates or could violate applicable laws and regulations and Cognitive Edge incurs any costs or other expenses arising from its response to such advice, then you will promptly reimburse Cognitive Edge for all such costs and expenses, which includes attorney fees and expenses, as they are incurred.

Uninstalling the Mobile App
Upon termination you must uninstall the Mobile App from all devices on which it has been installed.

7. Paying for Access to and Use of SenseMaker Online

When Cognitive Edge accepts your SenseMaker Online Service Order you are authorizing Cognitive Edge to charge you and receive your payment in the manner specified in that order, which may include advance payment. The amount you pay will be based upon the information you provide in that order, such as the total number of Client Sites, the period in which you use each such Client Site and so forth. You agree that you shall pay all fees in connection with your access to and use of SenseMaker Online.

Our charges might not include taxes and/or similar fees (i.e., required by law). You are responsible for paying all such taxes and fees. Cognitive Edge will charge you for such taxes and fees (and advise you of doing so) if Cognitive Edge is informed or believes that such taxes and fees need to be included. Cognitive Edge may charge you for such taxes, etc., if Cognitive Edge becomes obligated to pay or collect taxes and fees for which you are responsible. You agree to pay all such taxes and fees and, when Cognitive Edge invoices you, to promptly reimburse anything Cognitive Edge has paid.

8. Intellectual Property Rights

Your Content
Although the Replies reside on our servers we do not claim any ownership rights in them or in other content such as your trademark, logo, name, etc. Ownership of the Narratives is between you and the Contributors. Please make sure that you have all permissions necessary to use such information. We have no responsibility for how you use any such information—only you do.

Limited License to Some of Your Content
You hereby grant us a license to use your company name, trademarks, logos, Replies and other information that you provide us, such use to be solely and expressly for us to: (1) host, display, maintain and modify each Client Site and your Dashboard and to improve SenseMaker Online; (2) store and display to you the Replies and to enable us to use the Replies to generate SenseMaker Analysis; (3) conduct research provided that such research is anonymized to prevent you and your Contributors from being identified; and (4) create archival copies for you (if you have requested such a copy) and for our purposes (such as responding to legal claims). This grant of license is worldwide with a right of sublicense to our parent and sibling companies and service providers (e.g., a hosting company).

Limited License from Cognitive Edge for the Signification Framework
If Cognitive Edge has received payment, Cognitive Edge hereby grants you a limited right, without right of sublicense, and only to: (1) use each Client Site and Dashboard solely and exclusively to elicit and receive Replies during each Client Site Term relevant to a particular Client Site; (2) download and use, internal to your company, the Replies during the Order Term and for an indefinite period thereafter; and (3) download and use the SenseMaker Analysis for internal company uses during the Order Term and for an indefinite period thereafter. This grant gives you the right to organize, analyze and otherwise use the Output. However, please note that this grant permits you to use the SenseMaker Analysis, Signifiers and the Signification Framework and any portion thereof only to the extent that they are embedded in the Output and/or are used to provide context to the Output and not for use to create any derivative work of SenseMaker Online, SenseMaker Analysis and any Signifiers and/or Signification Framework for use with other data, in all of the preceding cases whether in whole or in part.

This grant of license does not give you any rights to use the Signification Framework for any other purposes whatsoever without the prior written permission of a member of senior management of Cognitive Edge or its designee authorized in writing, whether it is for commercial purposes with direct or indirect remuneration or for any other purposes. This precludes, among other uses, providing it to third parties for their use. For purposes of this section, “written permission” and “authorized in writing” can be by email.

Limited Rights to the Mobile App
Cognitive Edge hereby grants you the right to download, use, copy and display the Mobile App in all cases only on the mobile device to which it is downloaded, during the Order Term and solely for the purposes of users authorized by you to enter data and/or download and display Output.

Cognitive Edge IP
Cognitive Edge does not grant you any express or implied rights or licenses or any other intellectual property rights, except for the limited and revocable authorization granted by this Section 8. Cognitive Edge reserves all other rights. Cognitive Edge does not grant, and you do not acquire, any rights whatsoever in any intellectual property rights of Cognitive Edge, including without limitation, rights in SenseMaker Online, any underlying software and/or Cognitive Edge’s marks, including trademarks, service marks or other marks, or in any patents, copyrights and/or trade secrets whether or not any such intellectual property has been registered or filed with government authorities.

This authorization does not give you the right to do things such as copy, reproduce, republish, mirror or upload any or all of SenseMaker Online (except the limited right to download and use the Mobile App during your subscription) and you cannot create derivative works from any part of SenseMaker Online. SenseMaker is a registered trademark of Cognitive Edge.

9. Disclaimer of Warranties

Please note that for Sections 9, 10 and 11 “Cognitive Edge” includes its parent, sibling and subsidiary corporations.

YOU ACCESS AND USE SENSEMAKER ONLINE AND THE INFORMATION THEREFROM AT YOUR SOLE RISK. COGNITIVE EDGE PROVIDES SENSEMAKER ONLINE AND ALL INFORMATION “AS IS” WITH NO WARRANTIES OR GUARANTEES WHATSOEVER.

COGNITIVE EDGE, WITHOUT LIMITATION, MAKES NO WARRANTY OR GUARANTEE THAT YOUR ACCESS TO SENSEMAKER ONLINE AND INFORMATION THEREFROM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

TO THE FULLEST EXTENT PERMITTED BY LAW, COGNITIVE EDGE EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED, STATUTORY, AND OTHER WARRANTIES, GUARANTEES, OR REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS.

YOU UNDERSTAND AND AGREE THAT YOU OBTAIN MATERIALS, CONTENT, PRODUCTS, SOFTWARE OR SERVICES AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES THAT MAY RESULT, INCLUDING LOSS OF DATA OR DAMAGE TO YOUR COMPUTER SYSTEM.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

COGNITIVE EDGE MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR EQUIPMENT TO ACCESS AND DISPLAY EACH CLIENT SITE OR WILL BE COMPATIBLE WITH SENSEMAKER ONLINE.

10. Limitations of Cognitive Edge’s Liability

IN NO EVENT WILL COGNITIVE EDGE BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY TYPE WHATSOEVER RELATED TO OR ARISING FROM ANY CLIENT SITE, SENSEMAKER ONLINE AND INFORMATION THEREFROM INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOST SAVINGS OR LOSS OF PROGRAMS OR OTHER DATA, EVEN IF COGNITIVE EDGE IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION AND WAIVER OF LIABILITY APPLIES TO ALL CAUSES OF ACTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL THEORIES.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COGNITIVE EDGE EXCEED THE AMOUNT PAID BY YOU FOR THAT PERIOD DURING WHICH ANY ACTIONS GAVE RISE TO THE CLAIM.

11. Indemnification

You agree to indemnify, hold harmless and defend Cognitive Edge, its shareholders, directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to: (a) your breach of this Agreement; (b) your unauthorized use of SenseMaker Online or other services, including any information, communication, data or work that you provide in connection with SenseMaker Online; (c) libelous, slanderous, indecent or other statement concerning any person made or republished by you; (d) any violation of federal, state and/or local law related to, arising out of or connected with your use of SenseMaker Online.

Cognitive Edge has the right, but not the obligation, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you pursuant to this Section. Cognitive Edge agrees that it shall give you reasonable notice of any claim, threatened or made, or suit instituted against it that could result in a claim for indemnification. Cognitive Edge agrees that in the event that indemnification is sought under this provision, Cognitive Edge shall furnish you, upon request, all information and assistance available to Cognitive Edge for defense against any such claim, suit, or demand, to the extent permitted by law or court action.

12. Changes to this Agreement

This is the entire agreement with you relating to SenseMaker Online. This Agreement cannot be changed by any oral or written (including email) communications and/or documents unless such documents expressly state that this Agreement is being thusly changed and an officer of Cognitive Edge has expressly agreed in such document to any such change and it is signed by that officer. Cognitive Edge will alert you to any such changes and you will have opportunity to accept or reject such changes. Unless the changes are due to changes in applicable law, they will only affect your use of SenseMaker Online specified in SenseMaker Service Orders submitted and accepted after the changes to this Agreement. Notwithstanding the foregoing, Cognitive Edge and you can amend or otherwise modify this Agreement at any time by both parties signing a written document that expressly states that such document is expressly amending or otherwise modifying this Agreement.

13. Confidentiality

We will maintain the security of your Confidential Information (defined below) at a level at least as secure as we keep our own confidential information, which means that we will not disclose it to others except as follows: (1) to employees, officers, directors, advisors, subcontractors and other independent contractors who have confidentiality obligations at least as stringent as these obligations and such individuals or other entities have a reasonable need to know directly related to the performance of our services and the performance of their services to us; (2) when such disclosure is required by a court order from a court of competent jurisdiction or by government request or order from a governmental authority; or (3) when you authorize any other disclosure. We will promptly notify you of such order if applicable law permits us to do so.

Example
For example, if we need to perform maintenance on something such as a server, a database or a Client Site, then those performing such maintenance might have access to some of your Confidential Information. However, they will be subject to confidentiality obligations that will preclude them from disclosure outside of their obligations to perform maintenance.

Definition of Confidential Information
“Confidential Information” means: (a) your name (including company name), trademarks, copyright and logo; (b) the Narratives and Output; (c) references to internal programs, procedures, policies, initiatives, departments (or their equivalent) or individuals; and (d) any “trade secrets” you have identified to us as such.

“Confidential Information” excludes information that: (a) is in, or during the Order Term, enters the public domain; (b) we have developed on our own without reference to your Confidential Information; (c) we have received from a third party without being aware of any breach of confidentiality obligations of that third party; and (d) your company name, trademarks, copyrights and logos only if you have granted us the right to use them in our publicity materials and only to the extent such use is authorized by you.

Term of These Obligations
Confidentiality will be maintained for three years from the Effective Date, except for information identified by you to us as “trade secrets,” which will be kept confidential for as long as such information is a trade secret.

14. Other Provisions

Governing Law and Venue
Cognitive Edge and you agree and acknowledge that the worldwide scope of the Internet makes the choice of jurisdiction difficult to balance. Therefore, both parties accept a “mutually inconvenient” jurisdiction for choice of law and venue, but one in which the judicial system is familiar with digital matters. Accordingly, Cognitive Edge and you hereby agree that this Agreement and all disputes arising from it or any other matters between Cognitive Edge and you are governed by the laws of the State of California without taking into account its principles and case law relating to conflicts of laws. Cognitive Edge and you consent to the exclusive jurisdiction of the state and federal courts sitting in Los Angeles, California. You waive all claims to the defense of inconvenient venue and any related defense.

Some jurisdictions might not accept such waivers. If you are in any such jurisdiction you are not authorized to use SenseMaker Online. Please contact us immediately at agreements@cognitive-edge.com to discuss alternatives.

Enforceability of Terms
If a court determines that some terms of this Agreement are not enforceable that will not affect other terms. They will still be enforceable.

Governing agreement
If there is a conflict between the terms of this Agreement and any other documents (such as those documents incorporated into this Agreement), the terms of this Agreement will govern.

Certain Remedies
Cognitive Edge and you agree that other remedies might not be adequate and, accordingly, agree that Cognitive Edge shall have rights in equity for injunctive and other equitable relief, in addition to any and all other remedies Cognitive Edge may have under this or other agreements with you or at law.

Limitation of Waivers
Cognitive Edge does not waive any of its rights or remedies because it does little or nothing when you do something that breaches, or may breach, this Agreement. It does not mean that you have no liability for that action (or inaction), that Cognitive Edge cannot exercise whatever remedies it may have or that you can do it again.

No Assignment
Cognitive Edge is granting certain rights to you, and accordingly you may not assign this Agreement or any of its rights or obligations without the prior written consent of Cognitive Edge. Any attempted assignment without such prior written consent shall be void and will be considered a material breach of this Agreement.

Notices
Cognitive Edge can provide you notice by email or by other reasonable means, including notice on the Site. If you wish to contact Cognitive Edge, then you can do so by email at agreements@cognitive-edge.com.

Termination
As noted above, the Agreement terminates at the end of the Order Term (unless you want to extend it) or earlier if Cognitive Edge terminates access. However, certain provisions will remain in effect, which include the following: Sections 1, 2, 4, 5, 7, 8, 9, 10, 11, 13 and 14 survive any termination or expiration of this Agreement.

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