Terms and Conditions

Opensense Terms of Service

Opensense, Inc. (“Opensense,” “Company” or “we” )welcomes you to its website at www.opensense.com (the “Site”). Please read these Terms & Conditions (“Terms”) carefully, as they are a binding agreement between you, whether personally or on behalf of an entity (“you”) and Opensense. These Terms govern your use of the Site and the services offered on and through the Site. By accessing or using the Site, you agree to these Terms and to our Privacy Policy. If you do not agree to all of these Terms, you are prohibited from using the Site and must not access it.

Modifications to the Terms

We may modify these Terms at any time, so please check this page regularly for the most recent version. We will alert you about any changes by updating the "Last revised" date above. You waive any right to receive specific notice of each such change. Continuing to use the Site indicates your agreement to the revised Terms.

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Description of the Platform

The Site is available to both registered and unregistered users. It contains information and services that enable you to design and customize your emails with email applications (the “Service”) as well as software products, including Opensense’s proprietary software enhancing emails (the “Software”).Together, the Software and the Service shall be referred to herein as the “Platform.”

Opensense shall make the Platform available in its sole discretion and subject to the Master Services Agreement. You hereby acknowledge that we make no representations or warranties about the availability of the Platform.

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Account Registration

To open an account and register as a user of the Platform, you must provide certain information to us, directly or via third party authentication such as Facebook. The account information we may require and how we treat it is detailed in our Privacy Policy. You are responsible for all use of your account and password, and agree to keep your password confidential at all times. We reserve the right to remove reclaim, or change your username if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.

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Privacy Policy & Confidentiality

We respect your privacy and are committed to protecting the information you share with us. We believe that you have a right to know our practices regarding the information we collect when you access the Site and/or use the Platform. Our privacy policy and practices are described in detail here.

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User Representations and Undertakings

In using this Site, you hereby represent and warrant that:

• 1. You possess the legal authority to enter into these Terms on behalf of yourself or another entity and to form a binding agreement under any applicable law;
• 2. You will use the Site and/or Platform in accordance with these Terms, and will fully perform your obligations hereunder;
• 3. Agreeing to these Terms does not and will not violate any other agreement to which you are bound, or any law, rule, regulation, order or judgment to which you are subject;
• 4.You will not infringe or violate any of the Terms; and
• 5. You are completely responsible for the security and use of your user account.

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Prohibited Uses

Certain conduct is strictly prohibited on this Site. Your failure to comply with any of the following may result in the termination of your account and may expose you to civil and/or criminal liability.

You may NOT:

• 1. Use the Platform in any type of spam or unsolicited mail. You must comply with your local electronic mail laws, including the CAN-SPAM act. Unsolicited emails are not allowed.
• 2. Copy, modify, alter, adapt, make available, translate, port, reverse-engineer, decompile, or disassemble any portion of the Site and/or Platform.
• 3. Create a browser, frame, border environment or GUI around the Site or Platform.
• 4. Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (i.e., continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site; or that modifies, impairs, disrupts, alters or interferes with the use, features, functions, operation or maintenance of the Site.
• 5. Interfere with or disrupt the operation of the Site or our hosting servers or networks, or disobey any laws or regulations or requirements, procedures, policies, or regulations of such servers or networks.
• 6. Without their express consent, interfere with or violate any users’ rights to privacy or other rights, or harvest or collect information (whether manually or with a robot, spider, crawler, site search or retrieval application, or other automatic device, process or method to access the Site, retrieve,  index and/or data-mine information) about Site users.
• 7. Impersonate any person or entity or provide false information.
• 8. Falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that Opensense endorses you, your website, your business or any statement you make; or present false information about the Site.
• 9. Transmit, distribute, display or otherwise make available through or in connection with the Site and/or Platform, including User Generated Contributions, content that infringes any third party rights (including intellectual property and privacy rights), or which may contain any unlawful content.
• 10. Use the Site and/or Platform for any illegal, unlawful or unauthorized purpose.
• 11. Do anything that imposes or may impose an unreasonable or disproportionately large load on our Platform infrastructure (including, without limitation, by placing content generated through the Platform in any other software or service).
• 12. Bypass, circumvent, disable, or otherwise interfere with security-related features of the Platform or Site.
• 13. Disparage, tarnish, or otherwise harm, in our opinion, us, our brand, the Site, Services, or Platform.
• 14. Delete attributions, copyright or other proprietary rights from any content or Software.
• 15. Improperly use our Support services or submit false reports of abuse or misconduct.
• 16. Use the Site as part of any effort to compete with us.
• 17. Harass, annoy, intimidate or threaten any Opensense employees or agents who provide any portion of the Site to you.

We reserve the right to discontinue your use of the Platform in our sole discretion, with or without reason.

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User Generated Contributions

The Platform allows you to upload, post, publish and make available your own copyrightable or proprietary materials and personal information (“Contributions”). Contributions may be viewable by other Site users. Therefore, any Contributions may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you understand, agree, represent and warrant that:

• 1. You are solely responsible for your Contributions and the consequences of publishing them.
• 2. You have (and will maintain) all necessary licenses, rights, consents, and permissions required to use and to authorize us, the Platform, and other Site users to use your Contributions.
• 3. The creation, distribution, transmission, public display or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights, of any third party.
• 4. Your Contributions do not violate the privacy or publicity rights of any third party.
• 5. Your Contributions are not false, inaccurate, or misleading.
• 6. Your Contributions will not contain any content that is unlawful to possess, post or upload in your country of residence, or that would be unlawful for Opensense to use or possess in connection with our Site or Platform.
• 7. Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings or other forms of solicitation.
• 8. Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous or otherwise objectionable (as determined by us).
• 9. Your Contributions do not ridicule, mock, disparage, intimidate or abuse anyone.
• 10. Your Contributions do not advocate the violent overthrow of any government or incite, encourage or threaten physical harm against another.
• 11. Your Contributions do not violate any applicable law, regulation or rule.
• 12. Your Contributions do not contain any material that solicits personal information from anyone under the age of 18.
• 13. Your Contributions do not violate any federal or state law concerning child pornography or otherwise intended to protect the health or well-being of minors.
• 14. Your Contributions do not include any offensive comments connected to race, national origin, gender, sexual preference or physical handicap.
• 15. Your Contributions do not otherwise violate or link to material that violates any provision of these Terms, or any applicable law or regulation.

Any use of the Site in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Site.

By uploading, posting, publishing or making available Contributions on the Site or via the Platform, you grant Opensense an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, sublicensable and worldwide license to use, reproduce, distribute, transmit, prepare derivative works of, display, make available to the public by use of databases (such as User Suggestions Databases) and perform that Contribution in connection with the Site and/or Platform, whether through the Internet, mobile application or otherwise, in any media and through any channel now known or developed in the future, for any purpose—commercial, advertising, or otherwise. This license includes our use of your name, company name, and franchise name, as applicable; and any of the trademarks, service marks, trade names, logos, and personal and commercial images you provide. You waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions.

We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Site. You are solely responsible for your Contributions to the Site. You expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.  

We have no obligation to monitor Contributions. We reserve the right to remove Contributions without prior notice, at our sole discretion, for any or no reason.

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Intellectual Property Rights

Except for Contributions or as otherwise indicated, the Site, Platform, and all source and object code, databases, methods, procedures, algorithms, data, technical data, interactive features, functionality, software, website designs, audio, video, text, photographs, graphics, files, interface, GUI, inventions, and patents and patent applications on the Site (the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. Opensense.com, Opensense, Opensense Email Apps, Opensense’s logo and all other proprietary identifiers used by the Company in connection with the Site and Service, whether or not registered, are the property of the Company (“Company Marks”). Collectively, the Content, Marks, and Company Marks are our “Intellectual Property,” and are fully owned or licensed to Opensense. We reserve all rights not expressly granted to you in and to the Site, the Content and the Marks.

Certain third party content may be available or displayed on the Platform. The Software and/or Site may be owned by third parties. Except as provided herein, you are not granted, expressly or by implication, estoppel or otherwise, any license or right to use any of the Intellectual Property pertaining to the Site or the Portal.

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Third Party Websites and Content

The Site and/or Platform may contain links to third party websites, email applications and/or services (“Third Party Content”). Third Party Content is not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us. We do not endorse and are not responsible for any Third Party Content accessed through the Site or posted on, available through or installed from the Site; including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third-Party Websites or the Third-Party Content.

You acknowledge that Opensense has no control over Third Party sites or Content. If you decide to leave the Site and access or use Third Party Content, you do so at your own risk; be aware that these Terms and Conditions no longer govern. You further acknowledge and agree to hold Opensense harmless from or for any damage or loss caused or alleged by or in connection with any services, content, products or other materials available on or through any Third Party sites.

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Termination

You may be able to terminate your subscription under the Master Services Agreement, which governs the use of Opensense Platform and related services by contacting your account manager or Opensense directly (or if contracting with a reseller, by contacting such reseller). There are no refunds for any fees paid, and any payments remaining for the current subscription period will remain due and must be paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT. OPENSENSE IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT. Opensense may terminate this Agreement or the Products, or disable or make inactive your account, at any time, with or without cause and with or without notice. Opensense disclaims all liability to you or any third party related to such termination or action. Opensense will delete all of your archived data within sixty(60) days after the date of termination. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, intellectual property rights, warranty disclaimers, confidentiality obligations and limitations of liability. All payment obligations accrued prior to the effective date of termination shall survive termination. If your account is classified (at Opensense’s sole discretion) as inactive for over One Hundred and Twenty (120) days, Opensense has the right to permanently delete your subscriber data.

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Disclaimer and Warranties

THE SITE, THE SERVICES AND THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY RELATED CONTENT, DATA AND INFORMATION, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE EXTENT PERMITTED BY LAW, WE MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESSOR IMPLIED, ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THAT OF ANY LINKED WEBSITES OR SERVICES. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS; PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE; ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL USER INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; ANY INTERRUPTION TO THE SITE OR PLATFORM; ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY; AND/OR ANY ERRORS OR COMMISSIONS IN ANY CONTENT OR MATERIALS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE.

WE DO NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY LINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ADVERTISING. WE WILL NOT BE A PARTY TO OR IN ANY WAY RESPONSIBLE FOR MONITORING TRANSACTIONS BETWEEN YOU AND ANY THIRD PARTY PROVIDER OF PRODUCTS OR SERVICES.

OPENSENSE RESERVES THE RIGHT TO CORRECT, MODIFY, AMEND, IMPROVE OR MAKE ANY OTHER CHANGES TO THE SITE AND/OR PLATFORM AT ANY TIME, OR TO DISCONTINUE CERTAIN WEBPAGES AND CONTENT, WITHOUT NOTICE TO YOU. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OF THE SITE, PLATFORM OR THE CONTENT PROVIDED THROUGH THE SITE, SERVICE OR PLATFORM FOR ANY PURPOSE. OPENSENSE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE USE OF THE SITE AND/OR PLATFORM, INCLUDING, BUT NOT LIMITED TO, AVAILABILITY,RELIABILITY OR QUALITY.

OPENSENSE DOES NOT ENDORSE, AND DISCLAIMS ALL RESPONSIBILITY FOR, ANY ENTITY, SERVICE, WEBSITE OR PRODUCT MENTIONED IN ANY USER GENERATED CONTRIBUTION.

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Limitation of Liability

YOUR USE OF THE SITE AND PLATFORM IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL OPENSENSE BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO: INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS RESULTING FROM OR ARISING OUT OF THE SITE AND/OR PLATFORM, OR THE USE ORINABILITY TO USE THE SITE AND/OR PLATFORM, REGARDLESS OF WHETHER THE COMPANY OR AN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WHERE LIABILITY IS REQUIRED BY LAW, IN WHICH EVENT LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE PREVIOUS SIX (6) MONTHS OF REVENUE PAID TO OPENSENSE. OPENSENSE FURTHER DISCLAIMS ALL WARRANTIES WITH REGARD TO ANY THIRD PARTY USE OF ANY INFORMATION YOU HAVE MADE PUBLICLY AVAILABLE ON OR THROUGH THE SITE OR PLATFORM.

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Indemnification

You agree to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of the Site and/or Platform in violation of any term of these Terms; (ii)your violation of any third party rights, including without limitation any intellectual property rights or privacy right of such third party; and (iii)any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party with relation to the Site and/or Platform. It is hereby clarified that these defense and indemnification obligations will survive these Terms.

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Digital Millennium Copyright Act (DMCA) Notice and Policy

The Company respects the intellectual property rights of others. If you believe that any material on or available through the Site infringes upon a copyright you own or control, please immediately notify our designated Copyright Agent using the contact information below (“Notification”).

Per DMCA 17 U.S.C. § 512(c)(3), your Notification should include the following information: (1) The physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Site are covered by the Notification, a representative list of such works on the Site; (3)identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (4) information reasonably sufficient for us to contact the complaining party (such as an address, telephone number, and, an email address at which the complaining party may be contacted); (5) a statement of your good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed upon.

The Company’s Copyright Agent can be reached at 8 The Green, STE A, Dover, DE 19901.

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General

• These Terms do not and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship.
• Any claim relating to the Site and/or Platform or the use there of will be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to its conflict-of-laws principles and subject the superseding MSA and applicable Order Form.
• Unresolved disputes will be commenced and/or prosecuted in the competent courts of the State of Delaware. You agree to waive all defenses of lack of personal jurisdiction and forum non-conveniens with respect to venue and jurisdiction in such state and federal courts, and agree that process may be served in a manner authorized by applicable law or court rule.
• If any provision of these Terms is found to be unlawful or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
• The waiver by either party of any breach or default hereunder will not be deemed a waiver of any other breach or default.
• Headings, captions, and section titles in these Terms are inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
• These Terms along with the superseding MSA constitute the entire agreement between you and the Company relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and the Company.

For information or questions about these Terms, please contact legal@opensense.com.  Report any suspicious, unethical, or unusual behavior related to Opensense to security@opensense.com or call us at 833-417-0020.

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