This agreement specifies the terms that apply to you as a user (“you” or “Customer”) of our website and of the documents available to some of those Users.
In using the SenseMaker® platform (https://platform.sensemaker-suite.com and associated domains) you agree to the following terms.
It is agreed as follows;
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
1.2. Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. Words in the singular shall include the plural and vice versa.
1.6. A reference to one gender shall include a reference to the other genders.
1.7. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8. A reference to writing or written includes faxes and e-mail.
1.9. References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2. User Subscriptions
2.1. Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this
agreement, Cognitive-Edge Ltd hereby grants to the Customer a nonexclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer's internal business operations.
2.2. In relation to the Authorised Users, the Customer undertakes that:
2.3. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.4. The Customer shall not:
2.5. The Customer shall use all reasonable endeavors to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Cognitive-Edge Ltd.
2.6. The rights provided under this clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
3. Additional User Subscriptions
3.1. Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in paragraph 1 of Schedule 1 and Cognitive-Edge Ltd shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this agreement.
3.2. If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Cognitive-Edge Ltd in writing. Cognitive-Edge Ltd shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or disapproval of the request
(such approval not to be unreasonably withheld).
3.3. If Cognitive-Edge Ltd approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of Cognitive-Edge Ltd’s invoice, pay to Cognitive-Edge Ltd the relevant fees for such additional User Subscriptions as set out in paragraph 2 of Schedule 1 and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1. Cognitive-Edge Ltd shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
4.2. Cognitive-Edge Ltd shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1. Any planned maintenance will be announced with reasonable notice and will usually carried out during the maintenance window of 7am-11am SGT
4.2.2. and unscheduled maintenance performed outside Normal Business Hours, provided that Cognitive-Edge Ltd has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
4.3. Cognitive-Edge Ltd will, as part of the Services and at no additional cost to the Customer, provide the Customer with Cognitive-Edge Ltd’s standard customer support services in accordance with Cognitive-Edge Ltd's Support Services Policy in effect at the time that the Services are provided. Cognitive-Edge Ltd may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Cognitive-Edge Ltd’s then current rates.
5. Customer Data
5.1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2. If Cognitive-Edge Ltd processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and Cognitive-Edge Ltd shall be a data processor and in any such case:
6. Third Party Providers
6.1. The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Cognitive-Edge Ltd makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
7. Cognitive-Edge Ltd's Obligations
7.1. Cognitive-Edge Ltd undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Cognitive-Edge Ltd's instructions, or modification or alteration of the Services by any party other than Cognitive-Edge Ltd or Cognitive-Edge Ltd's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Cognitive-Edge Ltd will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Cognitive-Edge Ltd:
a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the 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 the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3. This agreement shall not prevent Cognitive-Edge Ltd from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.4. Cognitive-Edge Ltd warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
8. Customer's Obligations
8.1. The Customer shall:
9. Charges And Payment
9.1. The Customer shall pay the Subscription Fees to Cognitive-Edge Ltd for the User Subscriptions in accordance with this clause 9 and Schedule 1.
9.2. The Customer shall on the Effective Date provide to Cognitive-Edge LTD or one of its payment partners:
a) approved purchase order information acceptable to Cognitive-Edge Ltd and any other relevant valid, up-to-date and complete contact and billing details
b) Through Cognitive-Edge LTD’s online payment platform Customer may provide to one of Cognitive-Edge Ltd’s payment partners (Stripe or Paypal) valid, up-to-date and complete credit card details
9.3. In doing so, the Customer hereby authorises Cognitive-Edge Ltd to bill such credit card: (I) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and (ii) subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
a) its approved purchase order information to Cognitive-Edge Ltd, Cognitive-Edge Ltd shall invoice the Customer: (I) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and (ii) subject to clause 14.1, at least 14 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 days after the date of such invoice. Payments will recur automatically unless the subscription is canceled no later than 14 days before the next payment is due. Should customers have any difficulties or questions regarding canceling payments or subscriptions they are to contact firstname.lastname@example.org in the first instance so that we can assist in canceling before the payment is processed, however this may not always be the possible if too close to the third party (Stripe/Paypal) automated payment processing cut off dates.
9.4. If Cognitive-Edge Ltd has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Cognitive-Edge Ltd:
(a) Cognitive-Edge Ltd may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Cognitive-Edge Ltd shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Cognitive-Edge Ltd's bankers in Iceland at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5. All amounts and fees stated or referred to in this agreement:
a) shall be payable in either GBP, EUR SGD, or USD accordingly;
b) are, subject to clause 13.4(b), non-cancellable and non-refundable; (c)are exclusive of value added tax, which shall be added to Cognitive-Edge Ltd's invoice(s) at the appropriate rate.
9.6. Cognitive-Edge Ltd shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 and/or the excess storage fees payable pursuant to clause 9.5 at the start of each Renewal Period upon 90 days' prior notice to the Customer and Schedule 1 shall be deemed to have been amended accordingly.
10. Proprietary Rights
10.1. The Customer acknowledges and agrees that Cognitive-Edge Ltd and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2. Cognitive-Edge Ltd confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that:
a) is or becomes publicly known other than through any act or omission of the receiving party;
b) was in the other party's lawful possession before the disclosure;
c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body
11.2. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this agreement.
11.3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5. The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Cognitive-Edge Ltd's Confidential Information.
11.6. Cognitive-Edge Ltd acknowledges that the Customer Data is the Confidential Information of the Customer.
11.7. This clause 11 shall survive termination of this agreement, however arising.
12.1. The Customer shall defend, indemnify and hold harmless Cognitive-Edge Ltd against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, provided that:
12.2. The Customers is given prompt notice of any such claim;
a) Cognitive-Edge Ltd provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
b) the Customer is given sole authority to defend or settle the claim
12.3. Cognitive-Edge Ltd shall, subject to clause 12.5, defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trademark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
a) Cognitive-Edge Ltd is given prompt notice of any such claim;
b) the Customer provides reasonable co-operation to Cognitive-Edge Ltd in the defence and settlement of such claim, at Cognitive-Edge Ltd's expense; and
c) Cognitive-Edge Ltd is given sole authority to defend or settle the claim.
12.4. In the defence or settlement of any claim, Cognitive-Edge Ltd may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.5. In no event shall Cognitive-Edge Ltd, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
a) a modification of the Services or Documentation by anyone other than Cognitive-Edge Ltd; or
b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Cognitive-Edge Ltd; or
c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Cognitive-Edge Ltd or any appropriate authority.
12.6. The foregoing states the Customer's sole and exclusive rights and remedies, and Cognitive-Edge Ltd's (including Cognitive-Edge Ltd’s employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality
13. Limitation Of Liability
13.1. Subject to the provisions of clause 12 this clause 13 sets out the entire financial liability of Cognitive-Edge Ltd (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
a) any breach of this agreement;
b) any use made by the Customer of the Services or any part of them; and
c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
13.2. Except as expressly and specifically provided in this agreement:
a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Cognitive-Edge Ltd shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Cognitive-Edge Ltd by the Customer in connection with the Services, or any actions taken by Cognitive-Edge Ltd at the 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 Services are provided to the Customer on an "as is" basis.
13.3. Nothing in this agreement excludes the liability of Cognitive-Edge Ltd:
a) for death or personal injury caused by Cognitive-Edge Ltd's negligence; or
b) for fraud or fraudulent misrepresentation.
13.4. Subject to clause 13.2 and clause 13.3:
a) Cognitive-Edge Ltd 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, 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
b) Cognitive-Edge Ltd's total aggregate liability in contract, 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 total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
14. Term And Termination
14.1. This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
a) either party notifies the other party of termination, in writing, at least 14 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
b) otherwise terminated in accordance with the provisions of this agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:
a) the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder; or
d) a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or
e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
f) the other party ceases, or threatens to cease, to trade; or
g) there is a change of control of the other party; or
h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt
14.3. On termination of this agreement for any reason:
14.4. all licences granted under this agreement shall immediately terminate;
14.5. 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;
14.6. Cognitive-Edge Ltd may destroy or otherwise dispose of any of the Customer Data in its possession unless Cognitive-Edge Ltd receives, no later than ten days after the effective date of the termination of this agreement. Cognitive-Edge Ltd shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Cognitive-Edge Ltd in returning or disposing of Customer Data; and
14.7. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
15. Force Majeure
Cognitive-Edge Ltd shall have no liability to the 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, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Cognitive-Edge Ltd or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Cognitive-Edge Ltd`s or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
16.1. A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.2. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
17.1. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18. Entire Agreement
18.1. This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
18.2. Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
19.1. The Customer shall not, without the prior written consent of Cognitive-Edge Ltd, assign,
transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
19.2. Cognitive-Edge Ltd 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.
20. No Partnership or Agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. 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.
22.1. 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 to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.
22.2. 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 correctly addressed 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 fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
23. Governing Law and Jurisdiction
22.1. This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of England and Wales
(b) or if the Customer subscription was contracted through the Singapore or US (state of Delaware) subsidiaries, it will be governed by, and construed in accordance with the respective jurisdictions laws.
22.2. The parties irrevocably agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims), unless the subscription is contracted through a subsidiary office, in which case it will be governed by, and construed in accordance with the respective jurisdictions laws.
Cognitive Edge Ltd. & Cognitive Edge Pte. trading as The Cynefin Company and The Cynefin Centre.
© COPYRIGHT 2022.