SenseMaker® Platform Terms of Service

Cognitive Edge provides the SenseMaker® Platform, an online service to engage respondents in making sense of complex issues, challenges, and environments.  Below are the terms of the agreement (“Agreement”) with you.  Once you have acquired a subscription, Cognitive Edge and you will be subject to the terms of this Agreement.

These terms govern our delivery and your use of the SenseMaker Platform both during and in some cases after the term of your subscription.  The Agreement is between “you” and Cognitive Edge Pte Ltd. or one of its subsidiaries, depending on where you are located.  That entity is referred to as “we” or “us” in this Agreement.  The details of those subsidiaries are set forth below.

1. How It Works

We have created the subscription-based version of SenseMaker for you—and your colleagues and participants—to collect, analyze and share information on topics of interest to you.  We call these “Engagements,” which is to say each initiative you create to obtain feedback from a group.  The breadth and depth of the types of Engagements, and the available SenseMaker features, depends upon your level of subscription.

Engagements

Let’s start with an “Engagement.”  An “Engagement is the entire “initiative” you create to elicit responses from some number of people, whether a small group (12-24) or a large population (5+ million), and then make sense of and analyze the responses, which you can share and discuss real time with your collaborators and then create reports and presentations.  Each such “initiative”—that is, the inquiries, analysis, sharing and reporting—is an Engagement.

Creating your account

After you have completed a subscription order, we will send you an email with a link to create your account.  You acknowledge that the information is truthful and accurate and that you are the owner or authorized user of your email address.  You are prohibited transferring any part of it, including your login information, to anyone else.

 

2. Using SenseMaker and your responsibilities

Full Responsibility

You assume full responsibility for the use of the SenseMaker Platform, access (whether authorized or unauthorized) to it through your account(s), your Engagements and their content, all content you use, the “Responses” (i.e., the replies to your inquiries in your Engagement) and their use, and all reports and derivatives of the foregoing.

Access by Others

You are authorized to provide access to each Engagement only (1) to the “Respondents” (i.e., the people from whom you want Responses) for them to provide their Responses and (2) to other SenseMaker Platform account holders (i.e., they have a subscription) you have authorized to access your Engagements.  You remain fully responsible for their use.

You are responsible for the content that you use

When you use any content in any Engagement you must be certain that you have the right to use it. Just because you find something on the web does not mean that you have the right to use it. Accordingly, you represent and warrant that you have, and will have during your subscription term, all rights to the content necessary for their legitimate and legal use with the SenseMaker Platform.

You are responsible for what you do

We try to balance your freedom to use the SenseMaker Platform with our belief in respecting others and their intellectual property, as well as applicable law. Here are a few of our rules:

Stick with your rights and the law

  • Don’t use content to which you do not have clear rights. To repeat: Don’t post content for which you do not have rights, or you know is false, misleading, or inaccurate. Don’t do anything deceptive or fraudulent. Don’t misuse the personal information of someone else.
  • Do not use images downloaded from the web unless it is from a source that provides royalty-free digital images. Many other images—and a lot of text—downloadable from the web are owned by someone else.  Their easy availability does not mean you can use it.
  • Don’t break the law or even come close. Don’t do anything that could be a violation of law.

Don’t mess with other people

  • Don’t do anything that could be construed as threats, abuse, harassment, defamation or libel, obscene or profane.
  • Don’t invade the privacy of others.
  • Don’t take any action that infringes or violates (or looks like it could infringe or violate) someone’s rights or that violates the law or breaches any contract (e.g., a publishing contract) or duty you have to someone (e.g. an NDA).
  • Don’t SPAM people or send anything that could interfere with the networks or digital devices used by others.

Don’t break, damage, or copy our “Stuff”

  • Don’t pound on our systems by imposing a load on our infrastructure that cannot take it or that interferes with how the system is supposed to work;
  • Don’t copy our intellectual property, which means doing those things that computer scientists use big words to describe such as decompiling, deciphering or reverse engineering (or attempting to do any of the above or something similar) any of the software we use for our Services, or modifying, translating, or creating derivative works of any part of the Services (including our logos or the logos of others), or coping, renting, leasing, distributing, or otherwise transferring any rights you have been granted;
  • Don’t mess with our tech, which means accessing or tampering with non-public areas of the SenseMaker Platform, our computer systems, or the systems of our technical providers and/or accessing or searching by any means (like scraping or crawling) other than what we provide;

Please don’t attempt to get around or bend these rules, like having someone else do it for you. When in doubt don’t do it and, if you need to, just ask us.

3. Paying for your subscription

You order on the SenseMaker website. You will pay with the “shopping cart.”  Payment is processed through a third-party processor such as Stripe, which means we don’t have any access to your banking information. We do not have access to your payment information.

Payment Processor

The processor manages all aspects of the payment transaction between you and us, including but not limited to customer service regarding your payment and payment processing.  Please note that your use of the processor’s services is subject to its terms and conditions and its privacy policy.

You agree to pay and it is a prepayment

In so doing, you agree to pay the amounts specified for your subscription(s) for the term you selected.  Please note that it is a pre-payment for the term you select.

Your subscription Auto-renews

If your subscription is for longer than thirty (30) days, it will auto-renew at the end of the term you initially selected unless you give us notice not later than thirty (30) days prior to the expiration date.  For thirty (30) day subscriptions you must give us not less than ten (10) days notice.

Taxes and Fees

Depending on the jurisdiction, 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, such as jurisdictions that require it in the initial acquisition of a subscription.  You agree to pay all such taxes and fees and, when Cognitive Edge invoices you, to promptly reimburse anything Cognitive Edge has paid.

4. What happens at the end of your subscription?

Once the subscription Term is over, all Engagements will be deactivated—i.e., your users (Respondents) will no longer have access to post their Responses to any active Engagement, and any users with whom you shared your Engagements or Dashboards will no longer have access.  Engagements however may be transferred to other subscribers prior to your subscription termination. Your subscription details and data will be retained for a minimum of three (3) months after your subscription Term is over in the event you decide to re-activate your account, although Cognitive Edge may choose to maintain an archive copy for legal purposes. Access to your account information and data after the subscription Term has expired will require a subscription re-activation, including payment and any applicable reactivation fee.  You can still use the information that you have downloaded.

5. Providing the Services

Your right of access

When you sign up and pay for, or continue to pay for, a subscription, Cognitive Edge authorizes you to access and use SenseMaker Platform for the subscription Period, subject to the terms of this Agreement.  During your subscription term and in accordance with the terms of this Agreement, Cognitive Edge will provide you such access to and use of the SenseMaker Platform.

Availability and Types of Services

Cognitive Edge provides the SenseMaker Platform 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.  The SenseMaker Platform might not be available also because we have suspended or terminated your account (which is explained below).  Although unlikely, it is possible that some features or functionality might not be available in certain territories (e.g., because of legal reasons in such territories).  

Third-party websites, software or applications

You might find links to other websites or use the results of the SenseMaker Platform 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.  

Changes to the SenseMaker Platform

One of the benefits to SaaS is the ability to implement modifications to the software with ease.  Cognitive Edge can modify the SenseMaker Platform from time to time; where such modifications are substantial, we will use commercially reasonable efforts to provide notice of such changes.  Cognitive Edge might also discontinue certain features and functionality or entire lines of business.  We will provide notice to you.

New features & functionality

While we might discuss with you and others possible changes to features and functionality or new services, doing so does not mean that we will introduce them and you are not relying on any such comments we make about changes to the services.  

Your suggestions

We listen to our subscribers.  It is possible that we will use suggestions regarding our services (what is often known as “feedback”) that you provide us, so you grant us an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free right to use any such without any obligation or compensation

6. Intellectual Property

You have the rights you claim you have

You are assuring us that our exercise of these rights will not infringe on or otherwise violate the rights of any third party.  You are assuring us that you own your content and if you don’t own it, that you have a license to use it or some other legal basis for that use and in any case, that it doesn’t break any laws or breach any contract you already have.  In particular, you cannot alter attribution—i.e., indications of creation or authorship. You can’t make it look like it comes from someone other than the original creator. If it turns out that you have to pay royalties to someone else when it shows up on or is otherwise accessible through the SenseMaker Platform, then it’s entirely up to you to do so.

Your give us limited rights to your content

In order for you to use the SenseMaker Platform, we need the right to store, display and, manipulate your content so that you take full advantage of the features and functionality available for your subscription.  We will also need the right to analyze the content to monitor the performance of the SenseMaker Platform and adjust its features and functionalities, as well as respond to any of your use issues.  (We will anonymize the data we collect on your content.)  Accordingly, you grant us the worldwide, non-exclusive, perpetual, royalty-free, transferable right, with the right of sublicense, to use your content solely for the above purposes.  You also waive any and all moral rights and publicity rights in your content. (If you are in certain jurisdictions, that waiver might not apply.)

Your access to and use of content is at your own risk

You will be solely responsible for any damage or loss to you or any other party that results. You understand that we will not always pre-screen what your Respondents enter and that we are not, and will not be, responsible for policing, monitoring, or editing any content or for any inaccuracy of content.

Our intellectual property and rights we give you

We grant you limited access to and use of our services depending on your subscription, such use in all cases to create your Engagements and their Engagement Frameworks, elicit, collect and analyze Responses, share your outputs with other subscribers, and generate reports of your Engagements.  Cognitive Edge and its licensors own all intellectual property rights in the services. 

You cannot copy it or make what’s known as a “derivative work” from it.

Engagement Frameworks

Engagement Frameworks are the set of signification questions, referred to as “Signifiers” that are assembled to present to Respondents via a website (a SenseMaker Collector site) or a Mobile Application. We recognize that some of you may wish to use the Engagement Frameworks and Signifiers in workshops and other in-person meetings.  This can be done, provided that you have a current subscription or you can contact us for permission.  You can use the Engagement Frameworks and Signifiers for sales and marketing demonstrations and when they are embedded in a report.  They can also be used when embedded in a report you create as a result of your use of the SenseMaker Platform through your subscription.  (For those of you familiar with SenseMaker nomenclature, Signifiers are the requests for responses from your Respondents, whether as a narrative or questions or statements.

Our grant of license does not give you any rights to use Engagement Frameworks and Signifiers for any other purposes whatsoever without the prior written permission of Cognitive Edge.  This precludes, among other uses, providing it to third parties for their use.

We often provide templates for Engagements Frameworks to Subscribers, in some cases free and in others for a fee.  You are granted only a use license thereto;  any derivatives you may create are still the intellectual property of Cognitive Edge.  For other Engagement Frameworks that you create, it is up to you to mark them as “proprietary” and for you to assert your intellectual property rights as required under applicable law.  However, in no cases whatsoever shall we be responsible for, nor shall we have any liability for, use of all or part of Engagements Frameworks by you, your Respondents or others.

Customer covenants, on behalf of itself and its successors and assigns, not to assert against Cognitive Edge and its Affiliates or licensors, any rights, or any claims of any rights, in all or part of or Services.

7. Suspension, Termination, Monitoring

Some of Our Rights

You acknowledge that we have the right but not the obligation to monitor your use to determine noncompliance or to comply with a legal order. We reserve the right to suspend or otherwise restrict your access to SenseMaker or terminate your account if in any case we believe that you might be in breach of applicable law or this Agreement or because of circumstances such as a

“Force Majeure Event” (defined below) or a communications system failure.  We will use commercially reasonable efforts to notify you in advance or soon thereafter, unless prohibited by a legal order to do so.

Re-activation

Your account can be re-activated when we believe it should be or when permitted by a legal order.  Under some circumstances, your subscription term will be extended for some or all of a period of suspension, e.g., a Force Majeure Event or communications system failure in the sole discretion of Cognitive Edge.  If your account is terminated, you will not receive a refund.

We reserve the right to seek all additional remedies available, whether at law or in equity or otherwise, when you violate this Agreement or do something that is, or we believe is or will become, threatening or damaging (including injury), which could mean threats of or actual injury to our reputation, Cognitive Edge or others.

Termination by Notice

You may cancel your subscription at any time by providing us with written notice at least thirty (30) days in advance (for 30-day subscriptions, 10-day notice). Cognitive Edge does not provide refunds, but will keep your account open for your use until its original expiration date.

8. Risk Allocation

We Don’t Give Any Warranties

The SenseMaker Platform and all related services and all information there (the “Materials”) are provided to you on an “as is,” “as available” basis without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, non-infringement, title, data accuracy, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. We (which includes our directors, employees, agents, suppliers, partners and content providers) make no warranty as to the accuracy, completeness, timeliness, or reliability of any Materials or that use of the SenseMaker Platform will be uninterrupted, error-free, completely secure, or free from viruses, or that the results of your use will meet your requirements. No oral or written information or advice we give shall create a warranty of any kind.  

We Have Limits to Our Liability

Your use of the SenseMaker Platform (and all services we provide in relation thereto or as a consequence thereof) and anything resulting from such use, services or consequences is at your sole risk. We specifically disclaim all liability, whether based in contract, tort, negligence, strict liability, or otherwise for any direct, indirect, incidental, consequential, punitive or special damages arising out of or relating to your access to or use of the SenseMaker Platform (and all services we provide in relation thereto or as a consequences thereof) and anything arising therefrom, even if we have been advised of the possibility of such damages, including without limitation for (i) any lost profits, data loss, cost of procurement of substitute goods or services, or (ii) any bugs, viruses, trojan horses, or the like (regardless of the source of origination). In no event shall our aggregate liability to you for all damages, losses and causes of action (whether in contract or tort, including, but not limited to, negligence or otherwise) exceed the total amount you have paid us for your subscription(s) in the three months preceding the month of a claim.

Some of the limits listed above may not apply to you because they are not permitted by the law that applies to you. In such cases, our liability will be limited to the fullest extent permitted by that law.

Indemnification: You accept responsibility for what you do

If someone (other than you) sues us or threatens to sue us and the claim is based on (or it is believed to be based on) something you did with the SenseMaker Platform (and all services we provide in relation thereto or as a consequence thereof)

or if it is because you broke one of your assurances or other obligations in this Agreement or did something that caused us damage, then you shall defend, indemnify and hold us (and some additional entities described below) harmless from any and all claims, actions, demands, losses, liabilities or damages (including reasonable attorneys’ fees and other related costs) arising out of or related to: (i) your use of SenseMaker Platform (and all services we provide in relation thereto or as a consequence thereof)

and/or our content; (ii) your content; and/or (iii) your actual or, in our view probable, violation of this Agreement or of other policies that we adopt from time to time, any law or rights of a third party (each a “Claim”).  The “other people” referred to in this paragraph include our affiliates and each of our and their respective officers, agents, contractors, directors, suppliers, representatives, partners, members and employees

We will provide notice to you of any such Claim, provided that the failure or delay by us in providing such notice will not limit your obligations except to the extent you are materially prejudiced by such failure.  We have the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate fully with us in asserting any available defenses.  We also have the right to select counsel of our own choosing at your expense to defend our interests.

9. Privacy

Our privacy policy regarding your personal information can be found at https://www.cognitive-edge.com/privacy-policy/. Your relationship with the Respondents–and your collection and processing of their personal information–is your responsibility. We are a “data processor” under GDPR and you are the “data controller.” Cognitive Edge and you can enter into a “data processing agreement” that you provide or we provide. Contact us at [email protected].

10. 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.  Confidentiality will be maintained for three years from the date the subscription Term ends.

Example:  For example, if we need to perform maintenance on something such as a server, 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 Responses; (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 subscription 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.

11. 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.  In the event that the acceptance of jurisdiction is not accepted then:

  • If you are in the Americas (including the Caribbean) then your agreement is with Cognitive Edge (USA) Inc., 1000 N West St Ste. 1200 Wilmington Delaware 19801-1058 and the choice of venue above remains in effect.
  • If you are in Europe, the Middle East and Africa, then your agreement is with Cognitive Edge UK Ltd., Plas Eirias Business Centre, Abergele Road Colwyn Bay, Conwy LL29 8BF and you consent to the exclusive jurisdiction of the courts of England and Wales.
  • If you are in Asia, Australia, or New Zealand, then your agreement is with Cognitive Edge Pte Ltd. 1 Raffles Place #20-61 Tower 2 Singapore 048616.

Some jurisdictions might not accept these terms.  If you are in any such jurisdiction you are not authorized to use SenseMaker Platform.  Please contact us immediately at [email protected] to discuss alternatives.

Modifications to this Agreement

Cognitive Edge may modify this Agreement at any time by posting a revised version on its website or providing notice to you by other means.  We will normally try to upload them or notify you in advance of when changes take effect.  You agree to be bound by the changed terms by continuing to use the Services after the date they take effect.

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.

Force Majeure

If a party wishes to claim protection in respect of Force Majeure Event, it shall, as soon as possible following the occurrence or date of commencement thereof, notify the other party of the nature and expected duration of such Force Majeure Event and shall thereafter keep the other Party informed until such time as it is able to perform its obligations and shall use commercially reasonable efforts ensure resumption of normal performance of this Agreement as soon as reasonably practicable and shall perform their obligations to the maximum extent practicable,

Definition

“Force Majeure Event” means an event beyond either Party’s reasonable control, including acts of war or terror, criminal acts, riots, natural disasters, electrical shortages, blackouts, acts of war or terror, civil disturbance, acts of god or nature, strikes, national emergencies, public health emergencies, whether an endemic, epidemic or pandemic or event that substantially diminishes the capabilities of the relevant party, or acts of any court or government, network system failure of communications systems (such as the Internet backbone or connections to the Internet other than those under direct control of a Party) and malware, DoS attacks, or variants thereof (e.g. “DDoS”) and other malicious acts occurring through the Internet or other digital communications networks, or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing.

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 [email protected]

Survival

As noted above, the Agreement terminates at the end of the subscription 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 6, 8, 10 and 11 shall survive any termination or expiration of this Agreement for an indefinite period and Section 10 shall survive for the term specified in such section.