Terms And Conditions

Last Modified: May 26, 2016

Terms And Conditions For Sense360, Inc. (“Sense360”)
Sensor-Intelligence Software Developer’s Kit (The “SDK”)

IMPORTANT: READ THESE TERMS AND CONDITIONS CAREFULLY.


THESE TERMS AND CONDITIONS AND THE ASSOCIATED SENSE360 ORDER FORM THAT REFERS TO THESE TERMS AND CONDITIONS (THE “ORDER FORM”) TOGETHER ARE AN AGREEMENT BETWEEN THE INDIVIDUAL OR BUSINESS IDENTIFIED AS THE APPLICATION DEVELOPER ON THE ORDER FORM (“APPLICATION DEVELOPER”) AND SENSE360. ACCORDINGLY, THESE TERMS AND CONDITIONS AND THE ORDER FORM SHALL BE READ AS A SINGLE, INTEGRATED DOCUMENT THAT SETS FORTH THE AGREEMENT BETWEEN SENSE360 AND APPLICATION DEVELOPER (COLLECTIVELY, THIS “AGREEMENT”). IF APPLCIATION DEVELOPER ACCEPTS THIS AGREEMENT BY CLICKING WHERE INDICATED ON THE ORDER FORM OR OTHERWISE OBTAINS OR USES THE SDK, THIS AGREEMENT WILL BECOME A LEGALLY BINDING AGREEMENT BETWEEN APPLICATION DEVELOPER AND SENSE360.

THIS AGREEMENT REQUIRES THE BINDING ARBITRATION OF ANY AND ALL DISPUTES (OTHER THAN CERTAIN SPECIFIED INTELLECTUAL PROPERTY CLAIMS), AS STATED IN THE “RESOLUTION OF DISPUTES” SECTION (SECTION 14) BELOW, WHICH YOU SHOULD READ IN ITS ENTIRETY. YOU UNDERSTAND THAT THIS IS A LEGALLY BINDING INSTRUMENT AND AGREE TO ABIDE BY ITS TERMS.

Any capitalized terms used in these Terms and Conditions that are not defined in these Terms and Conditions shall have the meaning provided in the Order Form.


  1. Background

    1. Application Developer is the developer and/or publisher of one or more mobile applications that are distributed for use on mobile devices, including the mobile application(s) designated as the Developer Apps on the Order Form (including any subsequently released versions thereof, the “Developer Apps”). The SDK enables mobile applications to cause the devices on which those mobile applications are installed to gather data from the GPS receivers, accelerometers, gyroscopes and other sensors on such mobile devices (the “Raw Sensor Data”) and to transmit such Raw Sensor Data to Sense360 or its vendors. Sense360 stores the Raw Sensor Data along with associated device identification on its systems. Using its proprietary algorithms, Sense360 may be able to draw inferences from the Raw Sensor Data about the location of users of such applications (“Users”) or about activities in which such Users are then engaged (collectively, “Contextual Inferences”).
    2. The SDK enables Application Developer to select Trigger Events of which it desires to be notified. A “Trigger Event” with respect to each User shall be deemed to occur when Sense360 has drawn a Contextual Inference that such User is at a specified location (or type of location, such as a grocery store or restaurant) designated as a Trigger Event by Application Developer or is engaging in a specified activity designated as a Trigger Event. (Such notices from Sense360 to Application Developer of Trigger Events shall be referred to herein as “Trigger Event Notices.”)

  2. License of SDK

    1. Subject to the terms and conditions of this Agreement, Sense360 grants to Application Developer a non-exclusive license to (i) use the SDK in accordance with any documentation or other instructions or information provided therewith to incorporate the Runtime Module (as hereinafter the defined) into the Developer App, (ii) Distribute the Runtime Module solely as part of and as incorporated into the Developer App, (iii) use and distribute to Users the Trigger Event Notices as part of any services provided by or on behalf of Application Developer to Users in connection with the Sensor Enabled Apps (as hereinafter defined), (iv) copy the Runtime Module and Trigger Event Notices solely for the purpose of exercising the foregoing rights granted in this Section 2.a and (v) grant Users a nonexclusive license to install and use the Runtime Module solely as part of the Developer App and to use, copy and distribute the Trigger Event Notices provided to such Users.
    2. “Runtime Module” means the portion of the SDK that is intended to be incorporated into mobile applications in accordance with any documentation or instructions provided to Application Developer in connection with the SDK for the purpose of enabling such mobile applications (“Sensor Enabled Apps”) to gather Raw Sensor Data and transmit such Raw Sensor Data to Sense360 or its vendors. For clarity, any reference herein to the SDK shall be deemed to include reference to the Runtime Module.
    3. The SDK is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Application Developer is hereby licensing the SDK, not buying it. Sense360 retains ownership of all copies of the SDK (including all copy(ies) thereof provided to or made by Application Developer) and of all intellectual property rights in the SDK.
    4. The license granted to Application Developer in this Section 2 (the “License”) is personal to Application Developer and may not be sold, assigned, hypothecated or otherwise transferred in whole or in part. (For purposes of this Section 2.d, a change of control of Application Developer shall be deemed to be an assignment of the License.) Application Developer is not authorized to and shall not purport to grant any sublicenses under the License, except as expressly provided in Section 2.a. Any purported sale, assignment, hypothecation or other transfer of the License and any sublicense that Application Developer purports to grant under the License (other than sublicenses expressly permitted under Section 2.a) shall be null and void ab initio and of no force or effect.
    5. Application Developer acknowledges and agrees that it shall not receive or have any right to use any Raw Sensor Data or Contextual Inferences, except to the extent of Contextual Inferences that are incorporated into Trigger Event Notices.
    6. Developer agrees not to collect Raw Sensor Data in anyway while running in the background while using Sense360.
    7. Application Developer shall only use the SDK exclusively as authorized under this Agreement and for legal purposes, consistent with all applicable laws, regulations and the rights of others.
    8. Except as specifically permitted in this Agreement, Application Developer may not (i) copy the SDK or any part thereof or the Trigger Event Notices, (ii) modify or translate the SDK or separate out any of its components for use with other software, (iii) use the SDK to provide time sharing, service bureau, application service provider or similar services, (iv) decompile, disassemble, or otherwise reverse engineer or discover or reveal the source code for the SDK or any part thereof, or (v) use or attempt to use the SDK to obtain information that identifies, relates or describes or is capable of being associated with a particular individual (including without limitation, name, address, telephone number, social security number, credit card account numbers, user IDs and passwords). Further, Application Developer may not allow, encourage, motivate or assist anyone to do anything that this Agreement prohibits Application Developer from doing. Application Developer’s only rights that relate to the SDK or the Trigger Event Notices are the rights clearly granted in this Agreement. Sense360 retains all other rights that relate to the SDK or the Trigger Events Notices. Without limiting the generality of the foregoing, Sense360 retains and shall have the perpetual, irrevocable right to use the Raw Sensor Data and Contextual Inferences for any purpose whatsoever, except that Sense360 shall not communicate with any User(s) and shall not disclose any Raw Sensor Data or Contextual Inferences to any third party in a manner that would allow such Raw Sensor Data or Contextual Inferences to be associated with any uniquely identified User(s).

  3. Payment

    1. Except as otherwise provided in the Order Form, Sense360 shall charge Application Developer a fee for the license granted herein based upon the number of Trigger Event Notices provided in the amount and as set forth in the Order Form. Concurrently with Application Developer’s acceptance of this Agreement and subject to the Order Form, Application Developer shall pay Sense360 a license fee advance in the amount specified in the Order Form (the “Advance”). Sense360 shall credit any fees charged by Sense360 to Application Developer as provided in this Section 3 against the Advance. Whenever, as a result of such credits, the amount of the Advance that remains available for future charges is less than the Replenishment Threshold set forth on the Order Form, Application Developer shall replenish the Advance by paying the Advance amount set forth in the Order Form, unless the Order Form specifies another replenishment amount, in which event Application Developer shall replenish the Advance by paying such other amount.
    2. Application Developer shall pay Sense360 as provided in Section 3.a using a major credit card or other payment method accepted by Sense360 as provided on the Order Form (the “Payment Method”). Sense360 may change the payment methods that it accepts at any time and from time to time, without notice. Application Developer authorizes Sense360 to charge Application Developer using the Payment Method for any amounts that Application Developer is obligated to pay hereunder, including, but not limited to, any Advance payment or Advance replenishment due under Section 3.a.
    3. Application Developer shall pay (or, at Sense360’s option, reimburse Sense360 for) any federal, state or local sales, use, value added or other tax, tariff, duty or assessment and any associated interest or penalties arising out of or related to any of the transactions contemplated under this Agreement (other than taxes based on Sense360’s net income).
    4. Application Developer shall under no circumstances be entitled to any refund of any amounts paid hereunder. Notwithstanding the foregoing, within thirty (30) days after any termination of this Agreement (other than termination for Application Developer’s breach of this Agreement), Sense360 shall refund to Application Developer the amount by which the Advances paid hereunder (including any replenishments thereof) exceed the aggregate fees accrued hereunder; provided that Sense360 may retain amounts sufficient, in Sense360’s reasonable judgment, to cover any obligations of Application Developer to Sense360, including, without limitation, any claim pending by Sense360 against Application Developer or of which Sense360 shall have notified Application Developer.

  4. Feedback

    1. Application Developer grants Sense360 a worldwide, nonexclusive, perpetual, irrevocable, fully-paid-up, royalty-free, transferable license, with the right to sublicense, under any and all intellectual property or other rights in or relating to any information or material provided by Application Developer to Sense360 relating to the SDK, the Trigger Event Notices or the Application Developer’s or any Users’ use thereof or experience therewith, whether oral or written (collectively, “Feedback”), to (i) modify or create derivative works based upon the Feedback, (ii) use Feedback and any such modifications or derivative works in any way in connection with the design, development, marketing and other exploitation of the SDK or any other product or service of Sense360 or any of its affiliates, (iii) debug, display, perform, prepare derivative works, copy, make, have made, use, disclose, sell, otherwise dispose of, support, and otherwise exploit the SDK and such other products and services in any way and in any media, whether currently known or unknown, and (iv) copy, display, perform, distribute, display, use, sell, disclose or otherwise exploit the Feedback and any modifications thereto or derivative works based thereon for any purpose and in any way.
    2. Application Developer may gather and, to the extent that the parties mutually agree, provide to Sense360 information gathered from or provided by Users about their locations and activities in order to facilitate Sense360’s evaluation of the accuracy of its Contextual Inferences and Trigger Event Notices and to optimize, enhance and develop algorithms for drawing Contextual Inferences and for other purposes. Any such information shall be deemed to be part of the Feedback. Application Developer shall clearly notify Users (i) of any such information that it collects or otherwise obtains, (ii) that such information may be disclosed to Sense360 and (iii) of any use thereof that Sense360 is authorized to make.

  5. Term; Termination

    The term of this Agreement shall commence when Application Developer accepts this Agreement and downloads the SDK and shall continue until terminated as provided herein. Either party shall have the right to terminate this Agreement for any reason, or no reason, by giving thirty (30) days’ notice of termination to the other party. Additionally, either party may terminate this Agreement immediately upon notice if the other party breaches this Agreement. Any notice of termination may be provided by email or any other reasonable means as provided in Section 16.a. Except as otherwise provided in this Agreement, neither party shall, by reason or upon termination of this Agreement, be liable to the other for compensation or damages on account of the loss of present or prospective profits or commissions on sales or anticipated sales, or expenditures, costs, investments or commitments made in connection with this Agreement or with the establishment, development or maintenance of the SDK or the Sensor Enabled Apps.

  6. Effect of Termination

    Upon any termination of this Agreement, the licenses granted herein shall terminate and Application Developer shall immediately cease all (i) use of the SDK and any related documentation and (ii) all duplication, distribution or use of the Runtime Module as part of any Sensor Enabled Apps. Upon termination, Application Developer shall promptly delete from its systems and destroy all copies of the SDK and all parts thereof and all related documentation and materials in Application Developer’s possession or control. Sections 2.c, 2.e, 2.f, 3, 4, 6, 8, 9, 10, 12, 14, 15 and 16 shall survive any expiration or termination of this Agreement and shall remain fully effective, valid and enforceable thereafter.

  7. User Agreements/ Privacy Policy

    1. Application Developer shall ensure that the Sensor Enabled App is distributed or otherwise provided to Users subject to, and that all Users shall, before installing, receiving access to or providing any payment or other consideration for or in connection with any Sensor Enabled App, have the opportunity to review and shall be required to agree to be bound by an end user license, terms of use or similar agreement (“User Agreement”) that (i) clearly discloses to the User that (x) the mobile device on which the Sensor Enabled App is installed may gather and transmit Raw Sensor Data to a third party for purposes enabling such third party to draw Contextual Inferences, (x) such third party shall have the perpetual, irrevocable right to use the Raw Sensor Data and Contextual Inferences for any purpose whatsoever, except that it shall not use the Raw Sensor Data or Contextual Inferences to target advertising to or otherwise communicate with any User(s) and shall not disclose any Raw Sensor Data or Contextual Inferences to any third party in a manner that would allow such Raw Sensor Data or Contextual Inferences to be associated specifically with the User, (y) the Raw Sensor Data collected, and Contextual Inferences drawn, by Sense360 shall be Sense360 confidential information and shall not be provided or available to User, except to the extent that Contextual Inferences are included or reflected in Trigger Event Notices provided to User, and (z) such third party shall have no obligation or liability to the User, (ii) prohibits the User from (x) separating the Runtime Module from or using the Runtime Module except as a part of the Sensor Enabled App, (y) distributing or providing access to the Runtime Module to any person or entity or (z) decompiling, disassembling, or otherwise reverse engineering or discovering or revealing the source code for the Runtime Module or any part thereof, (iii) includes reasonable and customary exclusions of warranties and limits of liability for the benefit of Application Developer and its licensors, and (iv) imposes reasonable criteria that Users must satisfy in order to be authorized to use the Runtime Module as part of the Sensor Enabled App, including that User be at least eighteen years of age. Additionally, Application Developer shall notify Users that Application Developer will receive Trigger Event Notices and of all uses and disclosures that Application Developer may make or authorize others to make of any Trigger Event Notices. Application Developer shall enforce the User Agreement, including, without limitation, by terminating Users that violate it. Application Developer acknowledges, and shall disclose to Users, that Sense360 may terminate Runtime Module functionality and Trigger Event Notices with respect to any User that violates the User Agreement or otherwise at any time, without notice.
    2. At all times during the term of this Agreement, Application Developer shall post and display to Users of the Sensor Enabled Apps a conspicuously posted privacy policy (“Application Privacy Policy”) that is in compliance with applicable law and the requirements of this Agreement, and that discloses the types of information being collected from Users of the Sensor Enabled Apps, how such information will be used by Application Developer, and that Application Developer will share User’s Raw Sensor Data with third parties. Application Developer will comply with the terms of such Application Privacy Policy at all times.

  8. Indemnification

    1. Application Developer shall indemnify Sense360 and Sense360’s employees, contractors, vendors, service providers, advisors, owners and directors, and shall hold them harmless from and with respect to, any loss, damage, cost, expense (including, without limitation, reasonably attorneys’ fees) or claim by any User arising out of or in connection with (i) the Sensor Enabled App, the Trigger Event Notices, or the use, license or disclosure thereof or (ii) any breach by Application Developer of this agreement or of any User Agreement, including, without limitation, any act or omission of Application Developer or any affiliate thereof that violates or is contrary to any notice or disclosure that Application Developer or its affiliates make to any User; provided that Application Developer shall not be responsible for any loss, damage, cost, expense or claim to the extent that it arises out of and is based on Sense360’s breach of this Agreement or its gross negligence or willful misconduct or any Infringement Claim (as hereinafter defined).
    2. “Infringement Claim” means any claim that the SDK infringes any United States copyright or United States patent, other than any claim based in whole or part upon (i) the combination or interaction of the SDK or any part thereof with any Developer App or any other product or software not supplied by Sense360 or (ii) any use or commercialization of the SDK or any part thereof in violation of, or that is not specifically authorized under, this Agreement. Sense360 shall, at its expense, defend any Infringement Claim that is brought against Application Developer and shall pay any final judgment awarded against Application Developer or any settlement of such Infringement Claim, in each case to the extent attributable to such Infringement Claim; provided that Application Developer shall promptly notify Sense360 of such Infringement Claim, shall tender sole control of the defense and settlement of such Infringement Claim to Sense360 and shall reasonably cooperate with Sense360 in such defense. In the event of any Infringement Claim, Sense360 shall have the right to terminate this Agreement upon notice to Application Developer. Application Developer acknowledges that Sense360 may, in its sole and absolute discretion, issue Updates (as hereinafter defined) to address any Infringement Claims, including, without limitation, to eliminate any infringement or alleged infringement or otherwise to facilitate settlement of any Infringement Claim. If Sense360 issues any Update for any such purpose, Application Developer shall promptly adopt such Update and cease use, distribution or other commercialization of any versions of the SDK theretofore received by Application Developer.

  9. Limitation of Liability

    1. Neither Sense360 nor its affiliates nor its licensors, service providers or other vendors will be liable for any special, incidental, consequential or exemplary damages, including, without limitation, damages for loss of use or lost profits, arising out of or in connection with this Agreement, the SDK, the Trigger Event Notices, the Raw Sensor Data, the Contextual Inferences, or any use, distribution or other exploitation or commercialization of any of the foregoing, even if Sense360 or its affiliates, licensors, service providers or other vendors have been advised of the possibility of such damages.
    2. In no event will Sense360’s or its affiliates’, licensors’, service providers’ or other vendors’ aggregate liability for any claim(s) under this Agreement or relating to the SDK, the Trigger Event Notices, the Raw Sensor Data, the Contextual Inferences, or any use, distribution or other exploitation or commercialization of any of the foregoing, whether arising in contract, tort or any other theory of liability, exceed the greater of (i) the fees charged to Application Developer by Sense360 during the one hundred eighty (180) day period ending when such liability first accrues and (ii) Five Hundred Dollars ($500).
    3. If Sense360 breaches this Agreement in any way, or if Sense360 otherwise violates any rights of Application Developer, Sense360’s sole liability and Application Developer’s sole and exclusive remedy therefor shall be direct damages, subject to Section 9(b). Application Developer shall not seek and hereby irrevocably waives any right to receive injunctive or other equitable relief of any type or nature against Sense360.

  10. Disclaimer of Warranties

    1. Application Developer acknowledges and agrees that use and other exploitation or commercialization of the SDK and the Trigger Event Notices is at Application Developer’s sole risk. To the maximum extent allowed under applicable law, the SDK (including all documentation and other information provided in connection therewith), the Trigger Event Notices and all maintenance, support or other services that relate in any way to the foregoing are provided “AS IS,” without warranty of any kind, and Sense360, its affiliates and their respective licensors, suppliers and service providers expressly disclaim all warranties, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.
    2. Without limiting the disclaimer provided in Section 10.a, Sense360 does not warrant that (i) the Trigger Event Notices or the functions contained in the SDK will meet Application Developer’s requirements, (ii) the operation of the SDK or of the Sense360 service of collecting Raw Sensor Data, generating Contextual Inferences or providing Trigger Event Notices will be uninterrupted or error-free or that errors or specification non-conformities with respect to any of the foregoing will be corrected, (iii) the Runtime Module and the collection and transmission of Raw Sensor Data or Trigger Event Notices will not impair or otherwise affect the performance, stability, function or operation of the Sensor Enabled Apps or any mobile device on which any of the foregoing are installed or used or (iv) the Trigger Event Notices will be complete or correct. No oral or written information or advice given before or after the date of this Agreement by Sense360, any authorized representative of Sense360, or any other person will create or be deemed to be any warranty with respect to the SDK, the Trigger Event Notices or any maintenance, support or other services that relate in any way to the foregoing. If the Runtime Module malfunctions or its operation causes the Sensor Enabled Apps or any mobile device on which any Sensor Enabled Apps are installed or used to malfunction in any way, Application Developer (and not Sense360) assumes the entire cost and risk of all necessary servicing, repair, replacement or correction.

  11. Updates

    After Application Developer first downloads the SDK or incorporates the Runtime Module into the Sensor Enabled App, Sense360 may from time to time provide (i) Application Developer with (or make available to Application Developer) updates, patches, error corrections, components or new or modified versions for or of the SDK and (ii) Users with (or make available to Users) updates, patches, error corrections, components or new or modified versions for or of the Runtime Module (collectively, “Updates”). If Sense360 provides Application Developer or any Users with any Update or makes any Update available to Application Developer or any Users, then such Update will be deemed part of the SDK subject to this Agreement. Updates may be transmitted over the Internet or other network and installed on Application Developer’s or Users’ computers, with or without notice or consent. Application Developer will accept and install any Updates and will reasonably cooperate with Sense360 to cause Users to accept and install all applicable Updates. Nothing in this Agreement obligates Sense360 to create any Updates. Further, even if Sense360 does create any Updates, nothing in this Agreement obligates Sense360 to provide or make available to Application Developer or any User any of those Updates.

  12. Export

    You acknowledge that the SDK is subject to United States and other export control laws, including the export administration regulations. You will not export, re-export or divert the SDK or any part thereof in contravention of those laws.

  13. Amendments

    1. Sense360 may amend this Agreement by providing notice thereof to Application Developer by email at the email address provided by Application Developer in the Order Form, by prominently posting such notice at the site located at Sense360.com or by any means via which such notice is actually received by Application Developer.
    2. Such amendments shall be effective forty-five (45) days after notice; provided that any amendment that Sense360 shall implement as a result of a material change in circumstances beyond its reasonable control, including but not limited to a change in applicable law or requirements imposed by any Sense360 vendor or licensor, may at Sense360’s option be effective immediately upon notice.
    3. Except as otherwise provided in this Section 13, this Agreement shall not be amended except in a writing signed by Sense360 and Application Developer.

  14. Resolution of Disputes: Binding Arbitration; No Class or Representative Actions or Arbitrations

    1. The parties shall arbitrate any and all Disputes (other than certain specified intellectual property claims), as follows:
      1. “Dispute” as used in this Section 14 means any dispute arising out of or in any way related to this Agreement, any amendments or addenda to this Agreement, or the subject matter of this Agreement, including but not limited to any contract, tort, statutory or equity claims that relate in any way to (1) this Agreement, any User Agreement, the SDK, the Raw Sensor Data, the Contextual Inferences, the Trigger Event Notices or any Sensor Enabled App (collectively, the “Contract Subject Matter”), (2) maintenance, support or other services that relate in any way to any of the Contract Subject Matter, (3) the use, operation, licensing, distribution, sale, advertising, promotion, transmission, provision or marketing of any of the Contract Subject Matter, (4) any transaction that relates in any way to any of the Contract Subject Matter, or (5) any claims, statements, promises, descriptions, representations or warranties made in connection with the Contract Subject Matter or any such transaction; provided, however, that any claims specifically described in Section 14.c will not be included in the definition of Dispute.
      2. This Section 14 shall apply to the resolution of Disputes. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
      3. Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute between Sense360, on the one hand, and Application Developer, on the other hand, will be subject to binding arbitration.
      4. The parties expressly agree that there shall be no jury trial or right to a jury trial, or right to any other proceeding, to resolve any Dispute in any court. In the event of any Dispute, both parties agree that this Agreement will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 (“FAA”) to the maximum extent permitted by applicable law.
      5. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief in an appropriate court of law. v. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief in an appropriate court of law.
      6. The parties expressly agree that any Dispute is personal to them, and any such Dispute shall only be resolved by an individual arbitration. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding.
      7. The arbitration of the Dispute will be administered by the American Arbitration Association (“AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that Sense360 and Application Developer shall mutually agree upon. If, after making a reasonable effort, Sense360 and Application Developer are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules or the appropriate rules of any alternative arbitration forum selected by Sense360 and Application Developer or appointed by a court, subject to the following modifications:
        1. The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes.
        2. As limited by the FAA, the terms of this Agreement, and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by the terms of this Agreement as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
        3. The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary, with the caveat that each party shall have the right to take the deposition of at least one person for at least one day.
        4. In making any award, the arbitrator will be restricted by the Limitation of Liability provisions in this Agreement (Section 9), and will not have jurisdiction to make an award to any party to the arbitration contrary to the Limitation of Liability provisions; provided however that if the enforceability of any of these restrictions is limited by the applicable substantive law or by the AAA rules, that restriction will only be enforced to the extent permitted by such law or rules.
        5. The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) will be entitled to recover its reasonable attorneys’ fees and costs incurred: (i) a motion which any party is required to make in the courts to compel arbitration of a Dispute; (ii) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (iii) any action to enforce the confidentiality provisions stated in this Section 14.
        6. Sense360 will pay the amount of any arbitration costs and fees charged by the AAA, subject to the right of Sense360 to request that the arbitrator allocate the ultimate responsibility for that fee in a fair and reasonable manner. Unless the arbitrator finds that Application Developer is economically unable to pay a share of the arbitrator’s fee or that it is otherwise inappropriate for Application Developer to do so, the arbitrator ultimately may decide that Application Developer is responsible for some portion of that fee in the arbitrator’s discretion.
      8. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
    2. The AAA rules are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at www.adr.org.
    3. The following claims by Sense360 or Application Developer shall not be subject to binding arbitration and shall not be submitted to arbitration: (1) claims of infringement or misappropriation of any United States or foreign copyright, patent, trade secret, trademark, service mark or trade dress and (2) claims alleging violations of Title 17 of the United States Code, Sections 1201 and/or 1202, or of any similar foreign law. For any claims not subject to binding arbitration, neither Sense360 nor Application Developer will be bound by any decision or award of any arbitrator in connection with the resolution or decision of any question of fact or law required to resolve such claim, including, but not limited to, questions required to decide or rule with respect to the infringement, misappropriation, validity, enforceability or ownership of any copyright, patent, trade secret, trademark, service mark or trade dress or with respect to any remedy or relief at law or in equity for any such infringement or misappropriation or for any violation of such Sections 1201 and/or 1202.
    4. With the exception of the provision above that the enforceability of this Section 14 is governed both procedurally and substantively by the FAA to the maximum extent permitted by applicable law, this Agreement otherwise will be construed and enforced in accordance with the laws of the State of California and of the United States of America applicable to contracts entered into and performed in California by residents thereof to the maximum extent permitted by law.

  15. Limitation of Time Period to Commence any Complaint or Action

    Regardless of any statute of limitations or law to the contrary, and to maximum extent permitted by applicable law, any claim or cause of action that constitutes a Dispute as defined in Section 14.a must be filed within one (1) year after the date on which the incident giving rise to the Dispute occurred; provided that, if the substantive law applicable to the arbitration prohibits the parties from agreeing to this limitations period, then the limitations period under the applicable substantive law shall control. The failure of a party to file an arbitration claim within the applicable limitations period shall constitute a waiver by that party of its right to bring such a claim in any form or forum and a complete bar to any claim based on any Dispute, and the arbitrator shall not have jurisdiction to make a determination for a party that has not brought its claim within such applicable limitations period.

  16. Miscellaneous

    1. Notices and other communications from Sense360 to Application Developer may be made by electronic means, including, without limitation, by posting on Sense360.com or by email.
    2. This Agreement, including the Order Form, together constitute the entire agreement between Sense360 and Application Developer with respect to the subject matter of this Agreement and supersede any and all prior or contemporaneous oral or written communications relating to such subject matter. There being no expectations to the contrary between the parties hereto, no usage of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement or alter in any manner any express terms of this Agreement. Except as otherwise provided herein, this Agreement shall not be amended except by a writing executed by both parties. No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party or parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
    3. If all or part of any provision of this Agreement shall be deemed invalid or unenforceable under applicable law, such provision, or the invalid or unenforceable part thereof, shall be deemed stricken from this Agreement, and the remainder of this Agreement shall continue in full force and effect.
    4. Nothing in this Agreement shall be deemed to confer upon any person or entity other than the parties hereto and their respective assigns or other successors in interest a right of action either under this Agreement or in any manner whatsoever.
    5. Application Developer shall not do anything that circumvents or undermines the purpose or intent of any provision of this Agreement.
    6. The parties acknowledge and agree that the provisions hereof that limit liability, disclaim warranties, or exclude consequential damages or other damages or remedies are essential terms of this Agreement that are fundamental to the parties’ understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach or other occurrence hereunder. Without limiting the generality of the foregoing, Application Developer agrees that all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause any exclusive remedy under this Agreement to fail of its essential purpose.

Questions or Comments?

Should you have any questions concerning this Agreement, you may contact Sense360 in writing at:

3710 S. Robertson Blvd. Suite 214. Culver City, CA. 90232