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Terms and Conditions

 

TWOSENSE, Inc.

 Standard Terms and Conditions

 

By installing, accessing or using the Twosense Software (the “Software”) or signing an Order Form, you (“You” or “User”) agree to be bound by these Standard Terms and Conditions (“Terms”) with TWOSENSE, Inc. (“TWOSENSE”).

Please read these Terms carefully before using the Software. If You do not accept these Terms, then You may not use the Software.  If You are accessing the Software on behalf of a business entity, then by doing so, You represent that You have the legal capacity and authority to bind such business entity to the terms and conditions contained in these Terms.

 

  1. License Grant. You are hereby granted a non-exclusive, non-transferrable, royalty-free, limited right and license to access and use the Software solely as permitted in these Terms and the order form executed by You and TWOSENSE (“Order Form”). User may not sublicense, assign or otherwise permit any third party to exercise its rights herein without the prior written approval of TWOSENSE. Except as specifically set forth in these Terms, no other rights or licenses are granted to User. Any minor updates, bug fixes, patches, or other such modifications which are generally made available by TWOSENSE without charge to other licensees of the Software shall be provided without charge to User. The provision of new releases, major upgrades, add-ins, modules or other such enhancements shall be at TWOSENSE’s sole discretion and may be subject to the payment of additional fees or a separate licensing agreement. 
  1. Except as provided in these Terms or the Order Form, User may not disclose, distribute, loan, display or provide access to the Software to any third party. In no event may User create derivative works based on the Software or any part thereof and, except as may be permitted under applicable law, User may not reverse engineer, decompile, translate, adapt, create derivative works or disassemble the Software, nor shall User attempt to create the source code from the code for the Software. User assumes sole responsibility for the use, and results obtained from use, of the Software. User may not access the Software in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Software.
  1. End User Support. TWOSENSE will provide technical support to User via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern Standard time, with the exclusion of U.S. federal holidays (“Support Hours”). User may initiate a helpdesk ticket during Support Hours by calling +1 844-855-0206 or any time by emailing support@twosense.ai. TWOSENSE will make commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
  1. Fees. User shall pay all amounts set forth on the Order Form and shall be based upon reporting/numbers provided by TWOSENSE. To the extent set forth on the Order Form, User shall reimburse TWOSENSE for all reasonable and documented expenses incurred by TWOSENSE in performing services for the benefit of Client. User shall also be responsible for paying any taxes (such as applicable sales taxes, duties or goods and services taxes) for which it is legally liable arising from the Order Form. All invoices will be due thirty (30) days from the invoice date and are non-refundable and not subject to set-off. If User disputes any invoice, User must notify TWOSENSE in writing within thirty (30) days from the invoice date and pay any undisputed portion, or the invoice shall be deemed undisputed. User shall be responsible for interest on all amounts overdue by more than thirty (30) days at a rate of the lesser of one and one-half percent (1.5%) or the maximum rate allowable by applicable law, and all collection costs, including attorney’s fees and expenses.
  1. Termination.   These Terms shall commence on the date set forth on the Order Form. Upon expiration of any term set forth on the Order Form, the term shall automatically renew for additional terms of equal length, unless either party provides not less than thirty (30) days prior written notice of its intention not to further renew the Order Form. TWOSENSE may increase the fees for any renewal upon written notice at least sixty (60) days prior to the next renewal date. The Order Form may be terminated by either party if the other party shall violate or breach any of the terms and does not remedy such violation or breach within thirty (30) days after receipt of written notice. Upon termination or expiration of the Order Form for any reason, User shall immediately cease using the Software and delete all copies of the Software, and upon written request, provide a written certification confirming the same.
  1. Proprietary Rights. Except for the limited access rights granted herein, User does not acquire any interest in or right to the Software, including by virtue of entering into these Terms. Without limitation, TWOSENSE owns, and shall continue to own, all intellectual property and proprietary rights in and to all portions of the Software and its output (except for Usage Data, discussed below), including but not limited to, the types of behavioral data analyzed, the labels used to identify actions via the Software, models generated via the Software and templates to report outcomes via the Software. User shall not remove or obscure any disclaimer or notices that appear on any Software. User shall take no position contrary to, or that would diminish, TWOSENSE’s ownership rights set forth herein. Any and all suggestions, ideas, data, enhancement requests, feedback, and other information that User provides to TWOSENSE regarding its products, platforms, and/or services (collectively, “Feedback”) shall be deemed, and will be treated by TWOSENSE, as non-proprietary to User, and may be used by TWOSENSE for any purpose without acknowledgement or compensation. Except as expressly set forth in these Terms, no other licenses or rights are acquired by or granted to User and TWOSENSE reserves all rights, title and interests in and to its intellectual property and Software. 
  1. Data Privacy.
    1. Except as set forth herein, all data regarding end users of the User that is provided by User to TWOSENSE through its use of the Software (“Usage Data”) shall be owned by User. User hereby grants TWOSENSE a non-exclusive, worldwide, perpetual right and license to use the Usage Data solely (i) to provide services to User, (ii) to operate, maintain, improve and analyze trends through the Software for internal purposes, (iii) to create Aggregate Data (defined below) and (iv) as otherwise permitted by this Section 7. TWOSENSE shall process Usage Data as set forth in these Terms and the TWOSENSE privacy policy (www.twosense.ai/privacy). TWOSENSE may de-identify and/or aggregate Usage Data in a manner that does not personally identify User or any of its end users (“Aggregate Data”). All Aggregate Data shall be owned by TWOSENSE. For the avoidance of doubt, TWOSENSE shall not publicly disclose any Usage Data in a manner that identifies User without User’s prior written consent. TWOSENSE is not obligated to retain Usage Data for longer than thirty (30) days after the expiration of the Order Form.
    2. If you are located in the European Economic Area, Switzerland or the United Kingdom, then the Twosense Data Processing Addendum (www.twosense.ai/dpa) is hereby incorporated by reference into these Terms.
  1. Confidentiality. In connection with these Terms, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”). Confidential Information means any data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, plans, financial information, customer and supplier lists, forecasts, and projections. Confidential Information also includes the terms of these Terms. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party's possession free of any confidentiality obligations with respect thereto; (v) is independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction. Each party shall maintain the Confidential Information of the other party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information except as authorized and as necessary in connection with these Terms. Each party shall use the Confidential Information of the other party solely for the purpose of performing obligations or exercising rights under these Terms and shall only disclose the Confidential Information on a need-to-know basis, provided that, such party shall be liable for the acts of any third party who obtains the Confidential Information from such party. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis. However, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice to the other party to contest such order or requirement. Each party shall promptly notify the other party in the event any unauthorized access to Confidential Information is suspected. Upon the termination or expiration of these Terms, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that, neither party shall be obligated to purge information archived pursuant to their normal document retention procedures or required to be maintained by applicable law if the provisions of this section otherwise continue to be strictly observed.

 

  1. Representations; Warranties. Both parties represent and warrant that they shall comply with all applicable laws, rules and regulations in connection with the performance of their respective obligation and exercise of rights. TWOSENSE further represents and warrants that the Software shall operate substantially according to its specifications. In the event the Software does not operate substantially according to its specifications, User must provide TWOSENSE with written notice within thirty (30) days of any such failure. As TWOSENSE’s sole obligation, and User’s exclusive remedy, TWOSENSE shall make commercially reasonable efforts to properly resolve such performance issues. Notwithstanding anything to the contrary, TWOSENSE is not responsible for errors or problems using the Software which are due to User’s environment, misuse of the Software or other matters outside the reasonable control of TWOSENSE. User further represents and warrants that it shall make all disclosures and obtain all consents from its end users, if any, necessary to operate the Software and collect and process the Usage Data. For the avoidance of doubt, User is solely responsible for all matters with respect to its end users’ use of the Software.

 

  1. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE IS PROVIDED BY TWOSENSE "AS IS" AND TWOSENSE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TWOSENSE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET USER’S SPECIFIC REQUIREMENTS OR WILL BE UNINTERRUPTED. During any period identified on an Order Form as a trial, test or pilot period, the Software is provided without any warranties whatsoever.

 

  1. Limitation of Liability. IN NO EVENT WILL TWOSENSE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR USE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. TWOSENSE’S CUMULATIVE LIABILITY TO USER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO TWOSENSE BY USER DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM UNDER THIS AGREEMENT.

 

  1. Indemnification. TWOSENSE shall defend, indemnify and hold harmless User, its affiliates, successors and assigns, and each of their officers, directors, clients and agents (“Indemnitees”), against and from any and all third party claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorney’s fees and costs) (“Claims”), arising out of or in any way connected with a claim that the Software infringes the intellectual property rights of any third party. User shall defend, indemnify and hold harmless TWOSENSE and its Indemnitees against and from any Claims arising out of or in any way connected with User’s ultimate use of the Software, except to the extent caused by a breach of these Terms by TWOSENSE. The indemnifying party's obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity (provided that a failure or delay in providing such notice shall not relieve the indemnifying party's obligations, except to the extent prejudiced by such failure or delay); (ii) granting complete control of the defense and settlement to the indemnifying party, provided that the indemnifying party will not acquiesce to any judgment or settlement without the indemnified party's prior written consent, unless it obtains a full and final release of all claims against the indemnified party and such judgment or settlement does not impose any requirements or restrictions upon the indemnified party; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party's expense, in the defense and settlement of such claim. The indemnifying party shall provide the indemnified party the option to engage separate counsel, at the indemnified party’s expense, to participate in any claim giving rise to indemnification hereunder. The indemnifying party may settle any claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
  1. Service Level Agreement. The Software shall be available 99.9%, measured monthly, excluding scheduled maintenance (provided that TWOSENSE provides User at least ten (10) business days prior notice of such scheduled maintenance, and such scheduled maintenance will not exceed two hours per month). If User requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond TWOSENSE’s control will also be excluded from any such calculation. User's sole and exclusive remedy, and TWOSENSE's entire liability, in connection with Software availability shall be that for each period of downtime lasting longer than one (1) hour, TWOSENSE will credit User 5% of fees for each one (1) hour of downtime, up to a maximum of 100% of the fees due for the applicable month. Downtime shall begin to accrue as soon as User notifies TWOSENSE in writing that downtime is taking place, and continues until the availability of the Software is restored. Such credits may not be redeemed for cash and the credits shall only apply to the month in which the incident occurred. Should User be entitled to credits three or more times in any quarter, User may at its option deem such excessive downtime a material breach and terminate the Order Form, and receive a refund of any pre-paid fees applicable to the unexpired portion of the remaining term, regardless of whether User exercised its rights to receive credits herein.
  1. Publicity. TWOSENSE may identify User as a customer of the Software for promotional purposes, including displaying User’s name, logos and trademarks on TWOSENSE’s website and in TWOSENSE’s publicity materials. 
  1. Export Controls. User acknowledges and agrees that the Software, or a portion thereof, and the information contained therein, may be subject to the U.S. Export Administration Regulations and diversion, and that use or access contrary to U.S. law and regulation is prohibited. User agrees to not directly or indirectly export, import or transmit the Software, or a portion thereof, and the information contained therein, to any country, end user or for any access or use that is prohibited by any applicable U.S. regulation or statute (including those countries embargoed from time to time by the U.S. government or the United Nations). Additionally, User agrees to not directly or indirectly export, import, transmit access or use the Software, or a portion thereof, and the information contained therein, contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission or use. User represents and warrants that neither the United States Bureau of Industry and Export Administration nor any other governmental agency has (i) issued sanctions against it or those who access or use any of the Software through User’s credentials or (ii) otherwise suspended, revoked or denied its export privileges.
  1. Insurance. TWOSENSE will at all times during the term of the Order Form maintain insurance adequate to insure its business and, as applicable, as required by law, including the following: (i) Commercial General Liability (“CGL”) insurance with limits not less than Two Million Dollars ($2,000,000) per occurrence and Four Million Dollars ($4,000,000) in the aggregate that includes coverage for (a) Contractual Liability, (b) Products & Completed Operations, and (c) Personal and Advertising Injury Liability; (ii) Professional Liability/Errors and Omissions (“E&O”) insurance with limits not less than One Million Dollars ($1,000,000) per occurrence and One Million Dollars ($1,000,000) in the aggregate; and (iii) Workers’ Compensation coverage as required to comply with applicable state law, and Employer’s Liability insurance with limits not less than One Million Dollars ($1,000,000) per incident.
  1. General. These Terms are incorporated by reference into the Order Form and constitute one agreement. If any provision of these Terms is held to be void, invalid or inoperative, the remaining provisions of these Terms shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of these Terms. User may not assign these Terms to any other entity without the prior written consent of TWOSENSE, whether by operation of law or otherwise, except in connection with a merger, change of control or sale of substantially all of its assets to a party that is not a direct competitor of TWOSENSE. These Terms shall inure to the benefit of the parties’ permitted successors and assigns. Except as set forth herein, these Terms sets forth the entire agreement between the parties on this subject matter contained herein and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. In the event of any conflicts between these Terms and the Order Form, the Order Form shall prevail. No amendment or modification of these Terms shall be made except by a writing signed by both parties. These Terms shall be governed by the laws of the State of New York and each party submits to exclusive jurisdiction and venue in the courts located in New York County, New York for all matters.