PLEASE READ AND AGREE TO THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE.
SENSELY INC. (‘SENSELY, ‘WE’ OR ‘US’) TERMS OF SERVICE
These terms and conditions (the terms) are a legal contract between you and Sensely. The terms explain how you are permitted to use the website located at the url: www.sensely.com as well as all associated sites linked to www.Sensely.Com by Sensely, its subsidiaries and affiliated companies (collectively, the ‘site’). Unless otherwise specified, all references to ‘site’ include the services available through this site (the ‘services’) and any mobile application that Sensely provides to you that allows you to access the site or services from a mobile device. By using this site, you are agreeing to all the terms; if you do not agree with any of these terms, do not access or otherwise use this site, any services available through this site or any information contained on this site.
Note: these terms contain a dispute resolution and arbitration provision, including class action waiver that affects your rights under these terms and with respect to disputes you may have with Sensely. You may opt out of the binding individual arbitration and class action waiver as provided below.
Sensely may make changes to the content and Services offered through the Site at any time. Sensely can change, update, or add or remove provisions of these Terms at any time by posting the updated Terms on this Site. By using this Site after Sensely has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.
Sensely provides services through web and mobile interfaces which may be accessed through Sensely’s own provided applications, or though applications provided through partners or customers, utilizing Sensely API’s (Application Programming Interfaces). Where Sensely is providing only part of the user facing solution, the terms and services of those non-Sensely provided parts will apply instead. Sensely users include, but are not limited to patients, clinicians, and others who require access to Sensely provided services and partner content provided indirectly through Sensely applications. Sensely’s primary user facing interface is the Sensely Virtual assistant, which provides an interactive voice enabled solution to provide easy content navigation through a conversational interface, to a variety of data including health symptom checker, health information library and custom conversation flows and diagnostics provided though Sensely partnerships.
The services may be provided through a variety of channels, some available directly through Sensely applications available on the web-site, or through mobile application stores, as well as private channels of our partners and customers. Users will typically require registration to access the services via a username and password, and some services may be age restricted according to the type of content or service agreements in place with our partners.
If you are between the ages of 13 and 18, you may use the Site with the permission of your parent or legal guardian. Patients under 13 may not use the Services. If you are a parent or legal guardian who is registering for a child or has granted your child permission to use the Site and Services, you hereby agree to bind your child to these Terms and to fully indemnify and hold harmless Sensely if your child breaches or disaffirms any term or condition of these Terms. If you are using this Site on behalf of a company, you represent that you are authorized to legally bind the company to these Terms. Patient’s may use the Service solely for their personal, non-commercial use.
If Sensely believes that you do not meet any of these requirements Sensely may immediately terminate your use of the Site and Services.
RESPONSIBILITIES OF CLINICIAN
If you are a Clinician, you accept responsibility for your Patients as well as yourself in the use of this Service. You are also responsible for the quality of the services you provide during your use of the Service. You also responsible for complying with all applicable laws in connection with your use of the Service. For example, you are responsible for obtaining any and all Federal, State and local licenses and certifications which may be required to practice your profession when using this Service and maintaining malpractice and liability insurance in compliance with regulatory and local requirements.
You are also responsible for complying with any and all privacy laws applicable to the use of this Service with your Patients, including the Health Insurance Portability and Accountability Act of 1996 (‘HIPAA’). Sensely has established reasonable safeguards and procedures to protect the security of Patient information, but you must also take steps to protect your privacy and the confidentiality of your Patients. You will be asked to enter into a [insert name of agreement] with Sensely that includes a Business Associate Agreement.
Sensely makes no representations regarding your ability to bill third-party payors for the services you provide using the Site. You are responsible for complying with all laws in billing for the services you provide.
You agree to indemnify Sensely and hold us harmless from any liability resulting from the use of this Service with your Patients.
RESPONSIBILITIES OF PATIENT
If you are a Patient, you accept responsibility for yourself in the use of this Service. You acknowledge that your relationship for health care services is with Clinician, and your obtaining services from Clinician is solely at your own risk and you assume full responsibility for all risk associated therewith, to the extent permitted by law. By using the Service, you agree to not hold Sensely liable in any way for any malpractice or substandard treatment the Clinician may render.
The Sensely Service provides the ability to make, store and review Patient’s assessments, results and progress (collectively, ‘Assessments’). In general, the ability to make Assessments is limited to Clinicians. Clinicians must (1) obtain the consent of their Patients to engage in Assessment and monitoring; (2) maintaining the privacy of any Assessments they make; (3) review Assessments and Data only for their Patients; and (4) comply with all applicable laws.
NO MEDICAL ADVICE
The Sensely Service provides a technology platform connecting Clinicians and Patients. Sensely does not engage professional medical advice, diagnosis, or treatment. Any educational content provided by Sensely on the Site should not be interpreted as recommending any specific treatment plan, product or course of action. Further, a Clinician’s ability to use the Sensely Service is not an endorsement or recommendation of that Clinician by Sensely.
Sensely provides content through the Site and through the Services that is copyrighted and/or trademarked work of Sensely or Sensely’s third-party licensors and suppliers or other users of the Site (collectively, the ‘Materials’). Materials may include logos, graphics, video, images, software and other content. Subject to the terms and conditions of these Terms, and your compliance with these Terms, Sensely hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use this Site solely for your personal use. Except for the foregoing license, you have no other rights in the Site or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Materials in any manner. If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials. Do not use our Services or mobile applications or this Site for emergency medical needs. If at any time there is a medical emergency, call 911 or go to the nearest emergency room (ER) immediately.
Sensely makes available Mobile Applications to access the Site via a mobile device. To use the Mobile Application you must have a mobile device that is compatible with the mobile service. Sensely does not warrant that the Mobile Application will be compatible with your mobile device. Sensely hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that Sensely may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Sensely and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application. Data rates apply for data sent and received as determined by your wireless carrier. Sensely, nor any of customer of Sensely, will not be responsible for any charges incurred using Sensely. See your wireless carrier if you have any questions regarding pricing plan details.
USING THE SITE AND THE SERVICES ON THE SITE
You can simply view the Site and not use any Services on the Site. You need not register with Sensely to simply visit and view the Site. However, in order to access certain password-restricted areas of the Site and to use the Sensely Services and certain Materials offered on and through the Site, you must register with Sensely for an account and receive a password.
PASSWORD RESTRICTED AREAS OF THIS SITE
If you desire to register for an account with Sensely, you must submit the following information through the account registration page on the Site: name, contact information, and other information. You will also have the ability to provide additional optional information, such as health information and demographic information, which is not required to register for an account but may be helpful to Sensely in providing you with more a more customized experience when using the Site or may make your use of the Services more beneficial. Once you have submitted your account registration information, Sensely administrator shall have the right to approve or reject the requested registration, in Sensely administrator’s sole discretion. If your account is approved by Sensely administrator, you will be asked to change your password and will then be granted access to the Site and Services. You are responsible for maintaining the confidentiality of your Sensely Password, and you are responsible for all activities that occur using your Password. You agree not to share your Passwords, let others access or use your Password or do anything else that might jeopardize the security of your Password. You agree to notify Sensely if any of your Password on this Site is lost, stolen, if you are aware of any unauthorized use of your Password on this Site or if you know of any other breach of security in relation to this Site. All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete and up to date. You may change, correct or remove any information from your account by either logging into your account directly and making the desired changes or contacting Sensely using the contact information at the end of these Terms requesting that we make the change.
If applicable, you agree to pay all fees or charges to your account based on Sensely’s fees, charges, and billing terms in effect at the time. If you do not pay on time or if Sensely cannot charge your credit card, PayPal or other payment method for any reason, Sensely reserves the right to either suspend or terminate your access to the Site and account and terminate these Terms. You are expressly agreeing that Sensely is permitted to bill you for the applicable fees, any applicable taxes and any other charges you may incur in connection with your use of this Site and the fees will be billed to your credit card, PayPal or other payment method designated on your initial registration with this Site, and thereafter at regular intervals for the remainder of the term of these Terms. If you cancel your account at any time, you will not receive any refund. If you have a balance due on any account, you agree that Sensely may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from Sensely. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of your relationship with Sensely. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
Certain Materials that are not Submissions (as defined in ‘Submissions’ below) may be provided by third-party licensors and suppliers to Sensely (‘Third-Party Content’) where separate and additional terms govern the use of that Third-Party Content.
LINKS TO THIRD-PARTY SITES
You are responsible for the information, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you submit, upload, post or otherwise make available on or through the Site (each a ‘Submission’) and through the Services available in connection with this Site. You may not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.
You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Submissions posted by you to or through this Site.
When you provide Submissions you agree that those Submissions shall not be in violation of the ‘Unauthorized Activities’ paragraph below. Those prohibitions do not require Sensely to monitor, police or remove any Submissions or other information submitted by you or any other user.
When using this Site and/or the services, you agree not to:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
- Use racially, ethnically, or otherwise offensive language.
- Discuss or incite illegal activity.
- Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
- Post anything that exploits children or minors or that depicts cruelty to animals. Post any copyrighted or trademarked materials without the express permission from the owner.
- Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
- Use any robot, spider, scraper or other automated means to access the Site.
- Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
- Alter the opinions or comments posted by others on this Site.
- Post anything contrary to our public image, goodwill or reputation.
This list of prohibitions provides examples and is not complete or exclusive. Sensely reserves the right to (a) terminate access to your account, your ability to post to this Site (or use the Services) and (b) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any actions that Sensely determines is inappropriate or disruptive to this Site or to any other user of this Site and/or Services. Sensely may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Sensely’s discretion, Sensely will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
Unauthorized use of any Materials or Third-Party Content contained on this Site may violate certain laws and regulations. You agree to indemnify and hold Sensely and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys fees and costs of defense) Sensely or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Submissions) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
Sensely is a trademark of Sensely in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in these Terms, all information and screens appearing on this Site, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Sensely, Copyright © [dates of creation] Sensely. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. The Mobile Application software that is provided to you through the Site and Services and related documentation are ‘Commercial Items’, as that term is defined at 48 C.F.R. §2.101, consisting of ‘Commercial Computer Software’ and ‘Commercial Computer Software Documentation’, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if You are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
INTELLECTUAL PROPERTY INFRINGEMENT.
Sensely respects the intellectual property rights of others, and we ask you to do the same. Sensely may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide Sensely’s designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit Sensely to locate the material.
- Information reasonably sufficient to permit Sensely to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Sensely’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows:
1871 26th Ave
San Francisco, CA 94122
Attention: Copyright Agent
Please also note that for copyright infringement under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to Sensely designated agent that includes all of the following information: 1. Your physical or electronic signature; 2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled; 3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and 4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Sensely may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
TERMINATION OF REPEAT INFRINGERS
Sensely reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
If you are a Clinician, you are responsible for the use of the Platform by yourself and your patients. You are also responsible for any professional licenses that may be required for the services you are providing in the jurisdiction in which you and your Patients are operating. You agree to indemnify, and hold harmless, Sensely, the Sensely Affiliates, and each of their respective officers, directors, employees, agents, licensors, representatives, and third party providers from and against all claims, actions, demands, causes of action, and other proceedings, and all losses, expenses, fees, fines, damages and costs, including reasonable attorneys’ fees and court costs, arising out of or relating to your breach of this Agreement or use of the Services or Materials. Sensely reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with Sensely in asserting any available defenses.
DISCLAIMER OF WARRANTIES.
Your use of this Site and/or the Services is at your own risk. The Materials have not been verified or authenticated in whole or in part by Sensely, and they may include inaccuracies or typographical or other errors. Sensely does not warrant the accuracy of timeliness of the Materials contained on this Site. Sensely has no liability for any errors or omissions in the Materials, whether provided by Sensely, our licensors or suppliers or other users.
Sensely, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN ‘AS IS,’ ‘AS AVAILABLE’ AND ‘WHERE-IS’ BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. Sensely DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
LIMITATION OF LIABILITY.
Sensely SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THIS SITE. IN NO EVENT SHALL Sensely BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF Sensely KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
LOCAL LAWS; EXPORT CONTROL.
Sensely controls and operates this Site from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to Sensely, whether by letter, email, telephone, or otherwise (collectively, ‘Feedback’), suggesting or recommending changes to the Site, any Services offered through the Site or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Sensely is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Sensely is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please read this carefully. It affects your rights. Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at support@Sensely. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and Sensely. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury. Please read this Provision carefully. It provides that all Disputes between you and Sensely shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, ‘Sensely’ means Sensely and its parent, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term ‘Dispute’ means any dispute, claim, or controversy between you and Sensely regarding any aspect of your relationship with Sensely, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). ‘Dispute’ is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to the services or products provided or billed to you (such as Sensely’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution For all Disputes, whether pursued in court or arbitration, you must first give Sensely an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Sensely, 1871 26th Ave, San Francisco, CA 94122. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If Sensely does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
EXCLUSIONS FROM ARBITRATION/RIGHT TO OPT OUT
Notwithstanding the above, you or Sensely may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the ‘Opt-Out Deadline’). You may opt out of this Provision by mailing written notification to Sensely, [INSERT]. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Sensely through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Sensely. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or Sensely may initiate arbitration proceedings. The American Arbitration Association (‘AAA’), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will the class action procedures or rules apply to the arbitration. Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (‘FAA’) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
LOCATION OF ARBITRATION
You or Sensely may initiate arbitration in either California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, Sensely may transfer the arbitration to California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
PAYMENT OF ARBITRATION FEES AND COSTS
Sensely will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Sensely as provided in the section above titled ‘Pre-Arbitration Claim Resolution’ and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
CLASS ACTION WAIVER
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Sensely specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by entering into this Agreement you and Sensely are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Sensely might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with Sensely or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if Sensely makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Sensely to adhere to the language in this Provision if a dispute between us arises.
Sensely prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by Sensely, may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in County in the State of California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Sensely’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and Sensely and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Sensely about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
CALIFORNIA CONSUMER NOTICE.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site and Service are provided by Sensely, 1871 26th Ave, San Francisco, CA 94122. If you have a question or complaint regarding the Site or Service, please contact Customer Service at support@Sensely. You may also contact us by writing Sensely, 1871 26th Ave, San Francisco, CA 94122. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
If you have any questions about these Terms or otherwise need to contact Sensely for any reason, you can reach us at info@Sensely.
NUANCE LICENSE GRANT
LICENSEE (or Reseller) grants to End User a non-exclusive, non-transferable right and license to use the Software, as incorporated into the LICENSEE Product, for the sole and limited purpose of accessing the Service.
2 PROPRIETARY RIGHTS; RESTRICTIONS
End User acknowledges that LICENSEE and its licensors retain all right, title and interest in and to the original, and any copies, of Software which is incorporated into the LICENSEE Product, and to the Service. Without limiting the generality of the foregoing, End User agrees not to: (a) submit any automated or recorded queries to the Service unless otherwise approved in writing by LICENSEE and its licensors; (b) use the Service for commercial use; (c) access the Service with software or means other than the Software; (d) copy, reproduce, distribute, or in any other manner duplicate the Software, in whole or in part; (e) sell, lease, license, sublicense, distribute, assign, transfer or otherwise grant any rights in the Software or Service, in whole or in part; (f) modify, port, translate, or create derivative works of the Software; (g) decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms, of the Software or Service by any means; (h) remove any proprietary notices, labels or marks from the Software; (i) use the Service for purposes of comparison with or benchmarking against products or services made available by third parties; or (j) knowingly take any action that would cause any LICENSEE Product or Software to be placed in the public domain.
The Software and Service may contain a copy of the Speex codec in executable form. End User acknowledges that the use of the Speex codec is subject to the conditions and disclaimers listed in revised BSD license found at http://www.xiph.org/licenses/bsd/speex/. 2002-2003, Jean-Marc Valin/Xiph.Org Foundation.
3 LIMITATION OF LIABILITY
LICENSEE AND ITS LICENSORS TOTAL LIABILITY TO END USER FOR ANY CLAIM ARISING UNDER THIS AGREEMENT OR OTHERWISE ARISING FROM THE TRANSACTIONS CONTEMPLATED HEREIN, REGARDLESS OF THE FORM OF ACTION WILL NOT EXCEED AGGREGATE FEES ACTUALLY PAID TO LICENSEE DURING THE ONE YEAR PERIOD PRECEDING SUCH CLAIM.
4 CONSEQUENTIAL DAMAGE
IN NO EVENT SHALL LICENSEE OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OR REVENUES AND LOSS OF PROFITS, EVEN IF LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Third-party trademarks, trade names, product names and logos (the Trademarks) contained in or used by the Software, Access Methods, or Service are the trademarks or registered trademarks of their respective owners, and the use of such Trademarks shall inure to the benefit of the trademark owner. The use of such Trademarks is intended to denote interoperability and does not constitute: (i) an affiliation by LICENSEE and its licensors with such company, or (ii) an endorsement or approval of such company of LICENSEE and its licensors and its products or services.
6 SPEECH DATA
(a) SPEECH DATA. As part of the Service, LICENSEE and/or its licensors collects and uses Speech Data, as defined below, to tune, enhance and improve the speech recognition and other components of the Service, and other services and products. In accepting the terms and conditions of this Agreement, End User acknowledge, consent and agree that LICENSEE and/or its licensors may collect the Speech Data as part of the Service and that such information shall only be used by LICENSEE and/or its licensors or third parties acting under the direction of LICENSEE and/or its licensors, pursuant to confidentiality agreements, to tune, enhance and improve the speech recognition and other components of the Service, and other services and products. LICENSEE and/or its licensors will not use the information elements in any Speech Data for any purpose except as set forth above. Speech Data means the audio files, associated transcriptions and log files provided by End User hereunder or generated in connection with the Service.
(b) Any and all information that End User provide will remain confidential and may be disclosed by LICENSEE and its licensors, if so required, to meet legal or regulatory requirements, such as under a court order or to a government institution if required or authorized by law, or in the event of a sale, merger or acquisition to another entity by LICENSEE or its licensors.