GENERAL

This Terms of Use Agreement (“Agreement” and/or “Terms”) is entered into between Fieldscale P.C (“Fieldscale”) and You as the Customer or End User (defined below), as applicable. This Agreement governs the use of Fieldscale’s SENSE Cloud software (the “Platform”), whether entered by execution of order forms or other order documents by Fieldscale and End User, by using the software or by the completion of any click-through or other online process that provides access to the software.

You are the “Customer” under this Agreement if you are (a) an individual ordering Platform; or (b) an organization ordering Platform on behalf of one or more individuals. If you are an organization ordering Platform, the individual who agrees to this Agreement on your behalf must have the authority to bind the organization and its End Users to this Agreement. If you are an educator ordering Platform to be used by students in an educational environment, the individual who agrees to this Agreement must (1) have authority to bind the educational institution of which you are a part on its behalf, (2) agree to be bound by the Agreement on behalf of your students, (3) acknowledge that you are responsible for such students’ use of the Platform, and (4) affirm that you are authorized by the jurisdiction in which you operate to consent to the Agreement on behalf of such students.

You are the “End User” under this Agreement if you are using the Service in your capacity as an end user, including as an individual Customer or an individual authorized to use the Service by an organization who is a Customer.

 If we do not specify whether certain language applies to an End User or Customer, then our use of “you” applies to both End Users and Customers.

 You acknowledge and agree that:

1. You have read this Agreement.
2. You understand it.
3. You agree with and are bound to its terms.
4. You have the authority to enter this Agreement personally or on behalf of the organization named as the Customer and to bind such customer into this Agreement, and
5. You may receive without further notice or prompting, updated versions of the software.

 If You don’t agree to the foregoing, you may not access or use the Platform.

These Terms shall apply exclusively. Any terms and conditions that deviate from, conflict with or supplement these Terms shall only become part of the Agreement upon explicit prior written confirmation of Fieldscale.

USER ACCOUNT

In order to be able to use the Platform in accordance with these Terms, End User shall create a dedicated user account to access the Platform whether it is created by You, or provided to You by your organization or on behalf of Fieldscale in connection with your use of the Platform.
When You choose to provide information to the services, You agree that all information You provide to register with the services and to create your account shall be truthful and accurate, and You agree to update Your information as necessary to ensure that it remains truthful and accurate. Any account containing false information will be removed upon detection. You understand and agree that you are responsible for maintaining the confidentiality and security of your Login Credentials, and that You are solely responsible for all activities that occur on or through your User Account. You agree to notify us immediately if You suspect any unauthorized use of your User Account or access to your password. You agree that You will not solicit, collect or use the login credentials of other users. You also acknowledge that the Internet may be subject to breaches of security and that the submission of data or other information (“User Submission”) may not be secure.
We reserve the right, at any time, in our sole discretion, to disable any user Login Credentials, whether chosen by you or provided by us, and to suspend or terminate your User Account or otherwise deny you access, without notice and without liability, and with or without cause, including if we believe you are in breach of these Terms and Conditions. Fieldscale will not necessarily provide advance warning of such termination or suspension. We reserve the right to refuse provision of or access to the Platform to anyone for any reason and at any time. Any termination or suspension of the Service may result in the deactivation or deletion of your User Account or access to your account and may also result in the forfeiture and relinquishment of all content in your account, as determined by us in our sole discretion.

LICENSE

Subject to these Terms, Fieldscale hereby grants to End User, during the Subscription Term, a non-exclusive, non-transferable, non-sublicensable right and licence to use the software as a service version of the Platform on its end devices for private and/or internal business purposes only.

Except as otherwise expressly provided in these Terms, End User shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, or otherwise generate income from the Software; (b) copy the Software onto any public or distributed network; (c) decompile, reverse engineer or disassemble any portion of the Software, or attempt to discover any source code or other operational mechanisms of the Software; (d) modify, adapt, translate or create derivative works based on all or any part of the Software; (e) use any components of the Software other than together with the Software; (f) modify any proprietary rights notices that appear in the Software or components thereof; (g) use the Software in violation of any applicable laws and regulations or outside of the licence scope set forth herein; (h) configure the Software to collect (aa) any data that falls within the definition of ‘special categories of data’ within the meaning of the EU General Data Protection Regulation or a similar concept; (bb) passwords or other authentication credentials; (cc) any payment or other financial data, biometric data or genetic data; or (dd) any data relating to a person under the age of sixteen (16) years old (collectively, “Prohibited Data”); or (i) use the Software to (aa) store, download or transmit infringing, libellous, or otherwise unlawful or tortious material, or malicious code or malware, or (bb) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity; (cc) interfere with or disrupt the integrity or performance of third-party systems, or the Software or data contained therein; (dd) attempt to gain unauthorized access to the Software or Fieldscale’s systems or networks; or (ee) perform, or engage any third party to perform, authenticated or unauthenticated penetration testing, vulnerability assessments or other security assessments on the Software.
End User shall not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof in breach of any applicable laws and regulations. End User shall, at its own expense, obtain all necessary customs, import, or other governmental authorisations and approvals.
End User is also responsible for the security of Your account and all activity associated with Your account. This means (among other things) that You will secure and not share user IDs or passwords. If You suspect unauthorized use of Your account, please contact support@

RESTRICTIONS AND RESPONSIBILITIES

End User will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms related to the Platform; modify, translate, or create derivative works based on the Platform; or, use the Platform for time sharing or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

End User hereby agree to indemnify, defend and release Fieldscale against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action (“Claims”) that arises from Your acts or omissions, Your violation of these Terms of Use, any injury to persons or property, including any Equipment as defined below, as a result of your usage of the Platform, any activity performed on Your account, or any alleged violation of any laws by You.

End User shall be responsible for obtaining and maintaining a stable internet connection for accessing the Platform as well as any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, devices, tablets, hardware, servers, software, operating systems, networking, or servers (collectively, “Equipment”).

CONTENT

Ownership of and responsibility for all designs, analyses, simulations, models, estimations, data and other results uploaded by End User within the Platform or generated by End User through End User’s use of the Platform (collectively, the “Content”) shall fully remain with End User or its respective owner.

End User acknowledges that Content uploaded or generated by End User shall not be accessible by other users of the Software and visitors of Fieldscale’s websites unless End User uses functionality of the Software to share Content with such other users and visitors or a special agreement takes place between the Customer and Fieldscale to allow Content to be visible to other users.

End User grants to Fieldscale the non-exclusive, unlimited (in terms of time and territory), sublicensable, transferable, royalty-free and irrevocable right to use the Content for the sole purpose of performing Fieldscale’s obligations under the Agreement and of improving and optimizing the Software and specific functionalities thereof, including for bug fixing, testing and rectifying defects as well as for statistical analyses.

End User represents and warrants that (a) it has sufficient rights to upload and generate the Content, (b) it has sufficient rights to grant to Fieldscale and any other users of the Software the rights specified in clauses 5.2 and 5.3, (c) there are no third-party rights, including privacy rights and intellectual property rights which restrict the uploading or generation of the Content by End User and the use of the Content by Fieldscale and any other user of the Software pursuant to clauses 5.2 and 5.3, (d) the Content does not contain any viruses, worms, Trojan horses, malicious code or other harmful or destructive content, and (e) the Content does not contain any infringing, libellous, or otherwise unlawful or tortious content.

Proprietary Information shall not include any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law provided the Receiving Party promptly notifies the Disclosing Party of such requirement in order for the Disclosing Party to obtain a protective order.

CONFIDENTIALITY

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of the Disclosing Party includes any non-public information, regardless of whether or not marked as “confidential” regarding any technical information, features, source code, object code, functionality and performance of the Platform. Your proprietary Information includes non-public data provided by You to Fieldscale to enable the provision of the Platform (“Your Data”); provided however, to the extent Your Data is aggregated in anonymous form, such data shall not be considered Proprietary Information and may be disclosed or be used by Fieldscale for internal business purposes or disclosed to third parties. The Receiving Party agrees: (i) not to use or divulge to any third person any such Proprietary Information except to contractors or agents performing services under this Agreement; and, (ii) the Receiving Party agrees to take reasonable precautions, including industry standard security measures, to protect Proprietary Information from the Disclosing Party.

Fieldscale’s Platform is a highly secure workspace that constantly protect Company’s Proprietary Information. Content is encrypted while is between transmitted between the Platform and the End User’s browser. Content is encrypted when stored by the Platform using data encryption at rest. Access to End User’s Content is strictly restricted. Fieldscale employees are not allowed to access End User’s Content stored on Platform.

The foregoing obligation to maintain the confidentiality of the Proprietary Information shall survive any termination or expiration of this Agreement.

SUBSCRIPTION TERM

Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Proforma Invoice document provided to Customer by Fieldscale. To avoid unwanted charges, the Agreement is not automatically renewed for additional periods after the end of the specified duration.

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days. You will pay in full for the Platform up to and including the last day on which the Platform is provided. All sections of this Agreement which by their nature are intended to survive will remain in full force and effect following termination, including but not limited to accrued rights to payment, confidentiality obligations, indemnification, warranty disclaimers, and limitations of liability.

TRIAL EVALUATION PERIOD

Trial and free versions of the Service are made available by Fieldscale. The duration of the Trial Evaluation Period is seven (7) days (unless is agreed otherwise) and during this period You can use the Platform for evaluation purposes, and not for commercial purposes. If the End User uses the Platform outside a trial context to create and/or edit intellectual property for commercial purposes (including but not limited to developing designs that are intended to be commercialized and/or used in support of a commercial business), then the End User agrees to upgrade to a paid subscription to the Platform.

FEES

If You are the Customer, You will pay Fieldscale the applicable fees described in the Proforma Invoice document in accordance with the terms therein (the “Fees”). Fieldscale reserves the right to change the Fees or applicable charges and to institute new charges and Fees at any time, upon sixty (60) days prior notice to Customer (which may be sent by email). If You do not accept any increase in the Fees initiated solely by Fieldscale, You may terminate this Agreement with thirty (30) days’ notice. If You believe that Fieldscale has billed You incorrectly, You must contact Fieldscale no later than thirty (30) days from the date of the invoice in order to receive an adjustment or credit. After such time, the invoice shall be deemed correct, and You will have waived any right to dispute such invoice.

If You are the Customer, full payment for an invoice is due in accordance with the terms of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower and may result in immediate termination of Service. You shall be responsible for all taxes associated with Platform other than taxes based on Your net income.

WARRANTY AND DISCLAIMER

Fieldscale represents and warrants that Fieldscale has all rights, title and interest in the Platform. You represent that you are in compliance with all applicable laws, and You have authority to enter into these Terms of Use and use the Platform. EXCEPT AS PROVIDED HEREIN, FIELDSCALE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT THE SERVICES WILL BE COMPATIBLE ON ANY FORM OF EQUIPMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND FIELDSCALE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.

INDEMNITY

Fieldscale shall hold You harmless from liability for third parties resulting from infringement by the Service of any copyright or trademark, provided Fieldscale is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defence and settlement. Fieldscale will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Fieldscale, (ii) made in whole or in part in accordance with Your specifications, (iii) that are modified after delivery by Fieldscale, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where You continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Your use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Platform are held by a court of competent jurisdiction to be or are believed by Fieldscale to be infringing, Fieldscale may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for You a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Your rights here under and provide Customer a refund of any prepaid, unused fees for the Service.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT AS OTHERWISE PROHIBITED BY LAW, FIELDSCALE AND ITS OFFICERS, AFFILIATED ENTITIES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR EQUIPMENT, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND FIELDSCALE’S REASONABLE CONTROL; OR, (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO FIELDSCALE FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FIELDSCALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

FORCE MAJEURE

Except for any payment obligations, neither party shall be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, server failure, loss of internet connectivity, power surges or failure, inclement weather, acts of God, acts of government, flood, fire, civil unrest, or strikes. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay caused by such force majeure event.