BACKGROUND

This agreement applies as between you, the User of this Website and Senseye Ltd., the owner(s) of this Website. Your agreement to comply with and be bound by these Terms and Conditions is deemed to occur upon your first use of the Website. If you do not agree to be bound by these Terms and Conditions, you should stop using the Website immediately.

No part of this Website is intended to constitute a contractual offer capable of acceptance. Your order constitutes a contractual offer and our acceptance of that offer is deemed to occur upon our sending a dispatch email to you indicating that your order has been fulfilled and is on its way to you.

1. DEFINITIONS

The definitions and rules of interpretation in this clause apply in this Agreement.

Acceptable Use Policy: means Senseye’s acceptable use policy available at https://www.senseye.io/aup/, or as otherwise provided by Senseye to Customer from time to time;

Authorised Users: those employees and representatives of Customer who are authorised by Customer to use the SAAS Services, Software and the Documentation, or any deliverables provided as part of the Professional Services;

Customer Agreement: document by which Customer orders Senseye SAAS Services and/or Professional Services pursuant to separate terms and conditions;

Customer Data: the data (including any personal data) inputted by Customer, Authorised Users, or of Customer or Authorised Users which is inputted by Senseye on Customer's behalf for the purpose of using the SAAS Services or facilitating Customer's use of the SAAS Services;

Documentation: the document(s) describing the SAAS Services and the user instructions for the SAAS Services provided to Customer by Senseye from time to time;

Hosting Provider: a hosting provider engaged by Senseye to enable Senseye to provide the SAAS Services on a hosted subscription basis;

Losses: means all losses, liabilities, damages, costs, claims, demands, actions, proceedings, orders and expenses (including court costs and reasonable legal fees) disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties;

Minor Update: any update to the Software except those constituting an Upgrade. 

Normal Business Hours: 9 am to 5pm UK time

Order: document(s) by which Customer orders SAAS Services and/or Professional Services pursuant to this Agreement. Order may consist of either purchase order, quotation or proposal pursuant to this Agreement or part of a separate Customer Agreement that has been signed by both Customer and Senseye. In case a separate Customer agreement is signed by both Customer and Senseye the terms and conditions of the Customer Agreement supersede the terms of this Agreement to the extent of the provisions covered in both agreements;

Permitted Purpose: the generation and provision of machine health indicators and forecasts for the specific use only of providing guidance for the planning of maintenance operations. Use of the Services for making any maintenance or other decisions of a capital expenditure nature without review and consideration of all appropriate information (including information which was provided by or obtained from a third party) by a suitably qualified professional is not a Permitted Purpose;

Professional Services: all technical and non-technical services performed or delivered by Senseye under this Agreement, including, without limitation, implementation services, data analysis, setting control parameters, regimes and derived measures, training, pre-processing services and any consulting services, but excluding SAAS Services and Support and Maintenance Services. Professional Services will be provided on a case-by-case basis as documented on an Order;

SAAS Services: the subscription services provided by Senseye to Customer under this Agreement via https://app.senseye.io or any other website notified to Customer by Senseye from time to time, as more particularly described in the Documentation;

Service-level Agreement: Service-level Agreement defines standards for support and will be presented to Customer separately upon receipt of the Order.

Software: the online software applications provided by Senseye as part of the SAAS Services;

Subscription Fees: the subscription fees payable by Customer to Senseye for the SAAS Services, as set out in the Order or otherwise updated in accordance with this Agreement;

Subscription Term: the period described specified in an Order during which Customer will have on-line access and use of the Software through Senseye SAAS Services;

Support and Maintenance Services: the support and maintenance services in relation to the use of, and the identification and resolution of errors in, the SAAS Services as set out in Service-level Agreement;

Upgrade: a major version upgrade of the Software intended to have new or improved functionality.

 

 

2. Software Licence

During the Subscription Term, Senseye hereby grants to Customer a non-exclusive, non-transferable right, without the right to grant sub-licences, to use the SAAS Services and the Documentation solely for Customer's internal business operations and for the Permitted Purpose documented in an Order

3. Support and Maintenance Services

 3.1  Senseye shall, during the Subscription Term, provide the SAAS Services and make available the Documentation to Customer on and subject to the terms of this Agreement.

3.2  Senseye shall use commercially reasonable endeavours to make the SAAS Services available 24 hours a day, seven days a week, except:

  1. for a Minor Update to the SAAS Services in respect of which Senseye shall not be obligated to provide Customer with prior notice;
  2. for an Upgrade to the SAAS Services, provided that Senseye has given 10 Business Days’ prior written notice;
  3. for planned maintenance carried out during the maintenance window of 10.00 pm to 5.00 am UK time;
  4. for maintenance performed during Normal Business Hours, provided that Senseye has used reasonable endeavours to give Customer at least 5 Business Days’ notice in advance;
  5. emergency maintenance, in respect of which Senseye will use reasonable endeavours to notify Customer as soon as possible.

3.3  Senseye shall provide the Support and Maintenance Services to Customer during the term of this Agreement as specified in Service-level Agreement and pursuant to this clause 3.

3.4  Notwithstanding any other provision of this Agreement, Senseye does not undertake or agree to provide the SAAS Services at a service level which exceeds those provided to Senseye by the Hosting Provider.

4. Professional Services

Under the terms of the Order Senseye hereby grants to Customer a worldwide, royalty-free, non-exclusive license to use the Professional Services as described in an Order.

5. Proprietary Rights

Customer acknowledges and agrees that Senseye and/or its licensors own all Intellectual Property Rights in the SAAS Services, Software and the Documentation, or any deliverables provided as part of the Professional Services. Except as expressly stated herein, this Agreement does not grant Customer any Intellectual Property Rights, or any other rights in respect of the SAAS Services, Software, Documentation and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual rights therein.

6. Restrictions

 6.1  Customer shall not and shall not permit anyone to:

  1. access, store, distribute, introduce or transmit any: viruses; worms; trojan horses; and/or other similar things or devices during its use of the SAAS Services;
  2. except as allowed by applicable law which is incapable of exclusion and except to the extent expressly permitted under this Agreement;

(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

  1. make SAAS Services or Software available to any person other than Authorised Users;

  2. share passwords or access details to facilitate access to the SAAS Services with any third party (including, Customer’s employees, officers, agents or contractors) under any circumstances;
  3. access all or any part of the SAAS Services and Documentation in order to build a product or service which competes with the SAAS Services and/or the Documentation; or
  4. use the SAAS Services and/or Documentation to provide services to third parties; or
  5. subject to clause 13.8, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the SAAS Services and/or Documentation available to any third party except the Authorised Users; or
  6. attempt to obtain, or assist third parties in obtaining, access to the SAAS Services and/or Documentation, other than as provided under this clause.

 

7. Charges and Payments

  7.1  Senseye shall invoice Customer for any fees due to it pursuant to the Order, and Customer shall pay such fees in accordance with the Order payment terms.

 7.2 All amounts and fees stated or referred to in this Agreement do not include any amount for taxes, duties or import/export fees. If withheld by a government entity, Customer shall reimburse Senseye and hold Senseye harmless for all sales, use, VAT, excise, property, or other taxes or levies, duties or import/export fees which Senseye is required to collect or remit to applicable tax authorities (including any interest or penalties thereon). Unless Customer provides Senseye with a valid exemption certification from the applicable taxing authority, Customer shall pay to Senseye or its agents the amount of any such tax.

 7.3 Unless otherwise stated in an Order, Customer agrees to pay Senseye all fees due hereunder net thirty (30) days from date of invoice.

7.4  If Senseye has not received payment within 7 days after the due date for payment, and without prejudice to any other rights and remedies of Senseye and without liability to Customer, Senseye may:

(a) disable Customer's access (including passwords) to all or part of the SAAS Services. Senseye shall be under no obligation to provide any or all of the SAAS Services while invoice(s) remain unpaid. Customer shall, continue to be charged for the Subscription Fees during any period of suspension;
(b) suspend or terminate the provision of the Support and Maintenance Services and Senseye shall be under no obligation to provide any or all of the SAAS Services while invoice(s) remain unpaid; and
(c) charge late interest on a daily basis on such due amounts commencing on the due date and continuing until fully paid, whether before or after judgment as specified in the Order.

 

8. Software Warranty & Conditions

8.1 Senseye undertakes that the SAAS Services will be performed substantially in accordance with the SAAS Services Documentation and that the SAAS Services and Support and Maintenance Services will be performed with reasonable skill and care.  

8.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the SAAS Services contrary to Senseye’s instructions, or modification or alteration of the SAAS Services by any party other than Senseye. If the SAAS Services or Support and Maintenance Services do not conform with the foregoing undertaking, Senseye will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 8.1 notwithstanding the foregoing, Senseye:

(a) does not warrant that Customer's use of the Services will be uninterrupted or error-free; or that the SAAS Services, Documentation and/or the information obtained by Customer through the SAAS Services will meet Customer's requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the SAAS Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.3 For the avoidance of doubt, where Customer cannot access the SAAS Services due to any of the following, Senseye shall not be in breach of its obligations under this Agreement:

(a) a fault or failure of the internet or any public telecommunications network;
(b) a fault or failure of the Hosting Provider;
(c) repairs or replacements carried out by the Hosting Provider;
(d) a fault or failure of Customer’s computer systems or networks;
(e) any breach by Customer of this Agreement; or
(f) any unauthorised usage.

9. Confidentiality

9.1  Each party undertakes that it shall not at any time disclose to any person any Confidential Information, except as permitted by clause 9.2.

9.2 Each party may disclose the other party's Confidential Information:

(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 9; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

 9.3  No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

9.4  Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

9.5  Customer acknowledges that details of the SAAS Services and Professional Services, and the results of any performance tests of the SAAS Services, constitute Senseye’s Confidential Information.

9.6  The above provisions of this clause 9 shall survive termination of this Agreement, however arising.

10. Indemnity

10.1  Customer shall indemnify Senseye against Losses arising out of or in connection with Customer's use of the Software and/or Documentation, provided that:

(a) Customer is given prompt notice of any such claim;
(b) Senseye provides reasonable co-operation to Customer in the defence and settlement of such claim, at Customer's expense; and
(c) Customer is given sole authority to defend or settle the claim.

 10.2  Senseye shall defend Customer against any claim that the Software or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trademark, database right or right of confidentiality, and shall indemnify Customer for any amounts awarded against Customer in judgment or settlement of such claims, provided that:

(a) Senseye is given prompt notice of any such claim;
(b) Customer provides reasonable co-operation to Senseye in the defence and settlement of such claim, at Senseye’s expense; and
(c) Senseye is given sole authority to defend or settle the claim.

10.3  In the defence or settlement of any claim, Senseye may procure the right for Customer to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to Customer without any additional liability or obligation to pay liquidated damages or other additional costs to Customer.

10.4  In no event shall Senseye be liable to Customer to the extent that the alleged infringement is based on:

(a) a modification of the Software or Documentation by anyone other than Senseye; or
(b) Customer's use of the Software or Documentation in a manner contrary to the instructions given to Customer by Senseye; or
(c) Customer's use of the Software or Documentation after notice of the alleged or actual infringement from Senseye or any appropriate authority.

10.5  The foregoing and clause 11.3(b) states Customer's sole and exclusive rights and remedies, and Senseye’s entire obligations and liability, for infringement of any Intellectual Property Rights or right of confidentiality.

11. Limitation of Liability

11.1  Except as expressly and specifically provided in this Agreement: 

(a) Customer acknowledges that the results obtained from the use of the Software and the Documentation by Customer or any deliverables provided as part of the Professional Services are advisory only and Customer assumes sole responsibility for such results, and for conclusions drawn from such use. Senseye shall have no liability for any Losses caused by errors or omissions in any information, instructions or scripts provided to Senseye by Customer in connection with the Software, or any actions taken by Senseye at Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Software and the Documentation are provided to Customer on an "as is" basis.

11.2 Nothing in this Agreement excludes the liability of Senseye: 

(a) for death or personal injury caused by Senseye’s negligence; or
(b) for fraud or fraudulent misrepresentation.

11.3  Subject to clause 11.1 and clause 11.2:

  1. Senseye shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits or anticipated savings, loss of revenue or income, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
  2. Senseye’s total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the greater of:
    (i) £10,000; or
    (ii) the total Subscription Fees paid for Software Licence during the 12 months immediately preceding the date on which the claim arose.

12. Term, Suspension and Termination

12.1  This Agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue unless:

(a) either party notifies the other party of termination, in writing, giving at least ninety (90) days’ notice in which case this Agreement shall terminate upon the expiry of such notice; or
(b) otherwise terminated in accordance with the provisions of this Agreement.

12.2  Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 60 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so

(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
(d) the other party becomes insolvent, or if an order is made or a resolution is passed for the winding up of the other party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the other party’s assets or business, or if the other party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.

12.3 This Agreement shall automatically terminate if the agreement between Senseye and the Hosting Provider is terminated as a result of any breach by Senseye that is caused by Customer's breach of this Agreement.

12.4 On termination of this Agreement for any reason:

(a) all licences granted under this Agreement shall immediately terminate and Customer shall immediately cease all use of the SAAS Services, Support and Maintenance Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) Senseye may destroy or otherwise dispose of any of Customer Data in its possession unless Senseye receives, within ten (10) days after the date of termination of this Agreement, a written request for the delivery to Customer of the then most recent back-up of Customer Data. Senseye shall use reasonable commercial endeavours to deliver the back-up to Customer within 30 days of receipt of such request, provided that Customer has, paid all fees outstanding at and resulting from termination (whether or not due at the date of termination). Customer shall pay all reasonable expenses incurred by Senseye in returning or disposing of Customer Data;
(d) Customer shall pay to Senseye any amounts due to it under this Agreement; and
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

 

13. General

13.1 Force majeure. Senseye shall have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, provided that Customer is notified of such an event and its expected duration.


13.2 Conflict. If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail. The Contract Details shall take precedence over the main body of this Agreement.


13.3 Variation. Except where expressly provided under this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

13.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.


13.5 Rights and remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.


13.6 Severance. If any provision of this Agreement is held to be void, illegal or otherwise unenforceable by a court of competent jurisdiction then the relevant provision will be deemed deleted and the remaining provisions of this Agreement will remain in full force and effect.


13.7 Entire agreement. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior agreements, arrangements and understanding between them relating to that subject matter and the parties confirm that they have not entered into this agreement on the basis of any representations that are not expressly incorporated in this Agreement.


13.8 Assignment. Customer shall not, without the prior written consent of Senseye, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Senseye may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.


13.9 No partnership or agency. Nothing in this Agreement constitutes, or will be deemed to constitute, a partnership or joint venture between the parties nor make any party the agent of another party.


13.10 Third party rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.


13.11 Notices. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post or by email to the other party pursuant to this clause 13.11 to the details set out in the Contract Details, or such other address as may have been notified by that party for such purposes A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.


13.12 Governing law and jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

14. CHANGES TO THE SERVICE AND THESE TERMS & CONDITIONS

Senseye Ltd. reserves the right to change the Website, its Content or these Terms and Conditions at any time. You will be bound by any changes to the Terms and Conditions from the first time you use the Website following the changes. If Senseye Ltd. is required to make any changes to Terms and Conditions by law, these changes will apply automatically to any orders currently pending in addition to any orders placed by you in the future.

17. AVAILABILITY OF THE WEBSITE

17.1  The Service is provided “as is” and on an “as available” basis. We give no warranty that the Service will be free of defects and/or faults. To the maximum extent permitted by law, we provide no warranties (express or implied) of fitness for a particular purpose, accuracy of information, compatibility and satisfactory quality.

20. PREVIOUS TERMS & CONDITIONS

In the event of any conflict between these Terms and Conditions and any prior versions thereof, the provisions of these Terms and Conditions shall prevail unless it is expressly stated otherwise.

21. THIRD PARTY RIGHTS

Nothing in these Terms and Conditions shall confer any rights upon any third party. The agreement created by these Terms and Conditions is between you and Senseye Ltd.

22. COMMUNICATIONS

22.1 All notices/communications shall be given to us either by post to our Premises (see address above) or by email to hello@senseye.io. Such notice will be deemed received 3 days after posting if sent by first class post, the day of sending if the email is received in full on a business day and on the next business day if the email is sent on a weekend or public holiday.
22.2 Senseye Ltd. may from time to time send you information about our products and/or services. To act lawfully under GDPR as the customer you will give consent for us to send communications direct to you. If you do not wish to receive such information, please follow the unsubscribe link or email us at marketing@senseye.io.

23. LAW & JURISDICTION

These Terms and Conditions and the relationship between you and Senseye Ltd. shall be governed by and construed in accordance with the Law of England and Wales and Senseye Ltd. and you agree to submit to the exclusive jurisdiction of the Courts of England and Wales.