Terms of Service

Last Updated September 2021

PLEASE READ BEFORE PROCEEDING FURTHER

HYPERSENSE AI’s COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES OFFERED BY HYPERSENSE AI (AS DEFINED HEREIN), EXCEPT WITH PRIOR WRITTEN CONSENT. THE TERM “COMPETITORS” OR “COMPETITION” SHALL MEAN ANY ENTITY, BODY CORPORATE, FIRM, ASSOCIATION, INDEPENDENT CONTRACTOR, CONSULTANT WHO ARE ACCESSING SERVICES WITH THE INTENT OF: – (I) DEVELOPING THEIR OWN SERVICES, SIMILAR TO SERVICES OFFERED BY HYPERSENSE AI AND/OR (II) IMPROVING EXISTING SERVICES, AND/OR (III) ADDING FUNCTIONALITY TO THEIR EXISTING SERVICES. IF YOU ARE UNSURE WHETHER YOU ARE COMPETITOR, PLEASE DO NOT USE THE SERVICES AND CONTACT US

CUSTOMERS DOMICILED OR HAVING BUSINESS TRANSACTIONS IN U.S EMBARGO NATIONS LISTED UNDER U.S. EXPORT REGULATIONS, ARE PROHIBITED FROM ACCESSING & USING THE SERVICES.

ACCEPTANCE OF THESE TERMS IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS AND USE OF THE SERVICES. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MUST NOT USE OR ACCESS THE SERVICES. IF YOU ARE ENTERING INTO THESE TERMS FOR AN ENTITY, SUCH AS THE COMPANY YOU WORK FOR, YOU REPRESENT THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY.

1. TERMS AND CONDITIONS OF SERVICES

These Terms of Service (“Terms”) are a legal contract between you, either as a customer or an entity or organization on whose behalf you have authority to bind that business or entity to these Terms, and that business accepts these Terms (“You”) and HyperSense AI which is part of Subex Assurance LLP a company registered in India (“We,” “Us” or “Our” or “HyperSense AI”) , operates and provides to its customers a collaborative, graphical cloud platform and related services for developing, managing and deploying analytics at scale. These Terms of Service (the “Terms”) and any Subscription Form shall govern Your access to, and use of, the Services (collectively, “the Services”). ANY USE OF THE SERVICES, CREATION OF A SUBSCRIPTION FORM, OR REGISTRATION WILL MEAN THAT YOU ACCEPT THESE TERMS AND WILL COMPLY WITH THEM.

2. DEFINITIONS

a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
b) “Content” means any data that You have uploaded to the Services, including machine images, text, audio, graphics, photo, video and/or audio material or combination thereof.
c) “Corporation” the company or any other legal entity (not being a Competitor for which an individual is accepting this Terms together with its Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Subscription Forms.
d) “Services” (or the “Platform”) means the collaborative, graphical cloud platform and related services for developing, managing and deploying machine learning systems at scale.
e) “Service Level Agreement” or “SLA” means the processes, deliverables, key performance indicators and performance standards relating to the Service provided by Us.
f) “Subscription Form” means an ordering document or email or online order specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto.

3. THE SERVICES

Subject to Your compliance with the Terms, we will provide You with access to the Services per the Subscription Form where details of the Services are provided.

4. ACCOUNTS

a) In order to access and use the Services, You must register the Subscription Form on the website. By registering for the Services, You represent and warrant that all registration information that You submit is accurate and truthful, valid and You agree to update and maintain the accuracy of such information at all times. Each registration is solely for Your use and access to the Services should not be made available to any others. HyperSense AI does not permit anyone other than You to access the Services based on such registration.
b) The registration process may require You to provide information regarding, but not limited to, Your full name, e-mail address and/or any other information we deem necessary.
c) You are responsible for ensuring the confidentiality of Your account, password(s) and other token(s) and for restricting access to Your account.

5. LICENSE

a) Subject to and conditioned on Your compliance with these Terms, HyperSense AI hereby grants You a non-exclusive, non-transferable, non-sublicensable, fully revocable and limited license per the Subscription Form to access and use the Services.
b) You shall, and shall ensure that anyone on Your behalf shall not:
i. sell, lease, transfer, assign, sublicense or distribute the Services, or any part thereof;
ii. reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the Services or any part thereof;
iii. modify, revise, enhance, or alter the Services or any part thereof;
iv. use the Services to advertise malicious content, spyware, cause of security breached, trojans or the like; (e) copy, emulate or make derivative works, or allow copies, emulations or derivative works of the Services or any part of any of the foregoing to be made;
v. indirectly use, access, launch or activate the Services and any program, code or any other technology, content, software, materials and/or documentation belonging to HyperSense AI, through or from, or otherwise incorporate them in, any software, application, site or other means;
vi. create or attempt to create a substitute or similar service or platform to the Services, through use of, or reference or access to, the Services or any of HyperSense AI’s intellectual property rights.
c) You grant to Us a non-exclusive, sub-licensable, royalty free, worldwide, perpetual and irrevocable license to use the Content and any method used by You in relation to the training, development, creation and/or deployment of a model and Your use of the Services, solely as necessary:
i. to provide the Services and to allow HyperSense AI to perform under, and in accordance with the Terms and any Subscription Form;
ii. to develop and improve the existing Services and any additional service offerings, features and functionalities with respect to the Services and
iii. to use the Content to compile aggregated statistics and reports for internal business purposes and/or marketing use.

6. AVAILABILITY

We will use commercially reasonable efforts to ensure the Services’ availability. We will not be liable for: (a) scheduled downtime; or (b) any unavailability caused directly or indirectly by circumstances beyond our reasonable control, including without limitation, (i) force majeure events; (ii) Internet service provider or public telecommunications network failures or delays, or denial of service attacks; (iii) a fault or failure of Your or a user’s computer systems or networks; or (iv) any breach by You, or by any user in any deployment of the Services of the Terms.

7. TECHNICAL SUPPORT

If the Subscription Form includes an SLA, You are entitled to technical support by Us as specified in the applicable SLA. Without derogating from any provision herein, any support services provided to You by Us are provided “as is” and on an “as available basis” and any implementation thereof by You shall be made at your own risk and responsibility.

8. PAYMENT OBLIGATIONS

For the grant of the license and the provision of the Services, You shall pay HyperSense AI the fees set forth in any applicable Subscription Form. Each Subscription Form is non-cancellable, and fees are non-refundable.
Except as expressly set forth in the applicable Subscription Form, subscription fees are paid in advance via HyperSense AI’s website or platform. Any additional gateway charges may be applicable to the Services apart from the fee mentioned above.
When You provide payment information to HyperSense AI or to one of Our payment processors, You represent to HyperSense AI that you are the authorized user of the card, PIN, key or account associated with that payment, and You are authorized to make charges to your credit card or to process your payment with the chosen third-party payment processor for any HyperSense AI fees incurred by You. For Subscriptions purchased based on an agreed usage period, where recurring payments are made in exchange for continued use (“Recurring Payment Subscriptions”), by continuing to use the Recurring Payment Subscription you agree and reaffirm that HyperSense AI is authorized to charge Your credit card, or to process your payment with any other applicable third-party payment processor, for any applicable recurring payment amounts. You agree that you will not use IP proxying or other methods to disguise the place of your residence, whether to circumvent geographical restrictions on content or for any purpose. If you do this, HyperSense AI may terminate your access to the Services.
You are responsible for paying all taxes associated with Services procured hereunder. If HyperSense AI has the legal obligation to pay or collect taxes for which You are responsible under this section, we will invoice You and You will pay that amount.

9. SUSPENSION

Without prejudice to any other rights, any use of the Services in violation of these Terms may result in, among other things, termination or suspension of your rights to access and use the Services. Furthermore, HyperSense AI reserves the right to terminate or suspend Your rights to use of the Services for any reason. HyperSense AI also reserves the right to bring legal action against You for any loss or damage that it may suffer as a result of your violation of these Terms. During such suspension You remain responsible for all fees and charges, as set out in the Subscription Form, that You incur during the period of suspension.

10. INTELLECTUAL PROPERTY RIGHTS

Subject to the limited rights expressly granted hereunder, HyperSense AI, its Affiliates, its licensors and content providers reserve all their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. Any intellectual property rights subsisting in the Services and all information made available to You under these Terms, including but not limited to patent, trademarks, copyright, know-how, shall, at all times, be retained by HyperSense AI, its Affiliates or its licensors and the Services or website shall not be copied, reproduced or used for any purpose other than that contemplated under these Terms. None of the provisions of these Terms shall be deemed or construed to be a transfer, assignment or waiver of such intellectual property rights. You shall follow all instructions of HyperSense AI with regards to the use of the intellectual property rights or other indications of the proprietary rights of HyperSense AI its Affiliates or its licensors in the Services. Except as expressly provided in these Terms, any reproduction, display or other dissemination of information or content contained in the Services is strictly prohibited and constitutes copyright infringement.

11. WARRANTIES AND DISCLAIMER OF WARRANTIES

Each party represents and warrants to the other that (a) it has full power and authority to enter into these Terms, (b) the acceptance of these Terms and the execution and delivery of the Subscription Form has been duly authorised and (c) that it will, in all material respects, comply with applicable laws in the performance of the Terms and the usage of the Services.
HyperSense AI represents and warrants that the Services will be rendered using sound, professional practices and in a competent and professional manner.
By accessing the Services, You represent and warrant:
i. You are legally entitled to enter into these Terms.
ii. You understand that this is not an enterprise-wide license
iii. You shall not allow any other person or entity to access or use your account.
iv. You shall comply with all applicable laws whether national, international or local, when You access and use the Services.
v. You shall not use the Services for any illegal or unauthorized purpose.
vi. All information that You submit or post in order to use the Services is accurate (including without limitation, any registration information), and You will maintain the accuracy of such information at all times.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO COMMITMENT TO ANY FUTURE FUNCTIONALITY OR FEATURES. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Your sole remedy in the event of any deficiency, error, or inaccuracy in the Services shall be to request that HyperSense AI correct the matter or, if HyperSense AI fails to do so, to discontinue your use of the Services. Any content downloaded or otherwise obtained through the use of the Services is downloaded at your own risk and You will be solely responsible for any damage to your computer or device, or for loss of data that results from such download.

HyperSense AI does not warrant, endorse, guarantee, or assume responsibility for any product or service by a third party through the Services, or any hyperlinked platform or service, or featured in any banner or other advertising, and HyperSense AI will not be a party to and is not responsible in any way for monitoring any transaction between You and third-party providers of products or services, including any independent contractor providing the services.

12. HYPERSENSE AI USE RESTRICTIONS AND CONDITIONS

a) You will comply with the terms and conditions of the AWS public cloud provided at https://aws.amazon.com/service-terms/.
b) If You are acting on behalf of a Corporation, the Services may only be used by one authorised user and You shall be fully liable and responsible under the Terms for any act or omission of use. For clarity, the Services are offered on a one-subscription-per- customer model. In the eventuality that one license is being used for multiple Corporations, HyperSense AI has the right to terminate the license.
c) You shall use up-to-date, generally accepted virus detection devices and procedures to ensure that any Content you use on HyperSense AI will not contain a virus or other harmful components;
d) You are solely responsible for Content and the consequences of using, advertising, publishing, promoting, and/or distributing it via the Services, except if such consequences are a direct result of a wrongful or intentional act or omission by HyperSense AI;
e) Content is (and will continue to be throughout the term of the Terms) true, accurate, complete, and non-infringing upon any third party rights, including intellectual property rights and privacy rights;
f) You have obtained, and be deemed to have hereby granted to HyperSense AI, all rights necessary to authorize HyperSense AI to store, audit, optimize and serve Content and otherwise provide the Services to You hereunder; and
g) You shall not knowingly or purposely use, merge or otherwise make available to the Services any personal data of either You or other third party in a manner which violates applicable data protection laws, or any legal right of the end-user or third party regarding the use and/or disclosure of their personal data

13. INDEMNIFICATION

a) You will indemnify, defend and hold HyperSense AI, its Affiliates, partners, employees, directors and shareholders ( as applicable) harmless from any damages, losses, expenses including reasonable attorney’s fees, in connection with any third party claim demand or action, brought against it (a) resulting from Your breach of these Terms or any acts of omission (b) claims that Content violates any third party rights, including without limitation, infringement or violation of the intellectual property rights or privacy rights of such third party; (c) that You failed to obtain any necessary permit, license or consent with regard to the Content.
b) HyperSense AI shall defend, indemnify and hold harmless You from and against all direct costs, damages, losses and expenses, including reasonable attorneys’ fees and other legal expenses, arising from (a) any third-party claim that the platform violates any third-party intellectual property rights; or (b) that HyperSense AI failed to obtain any necessary permit, license or consent in connection with the Terms.
c) As a condition to the defence and indemnity set forth above, the party to be indemnified (“Indemnified Party”) shall give the other party (“Indemnifying Party”) prompt notice of any such claim made against it and the Indemnifying Party shall be entitled, by written notice to such Indemnified Party, to assume sole control of the defence of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof, at its own expense, provided that
i. no settlement, consent order or consent judgment which involves any placement of a financial burden or admission of any liability or wrongdoing, act or omission on the part of Indemnified Party may be agreed to by Indemnifying Party without Indemnified Party’s prior written consent; and
ii. Indemnifying Party shall keep Indemnified Party informed of the status and progress of such claim, the defence thereof and/or settlement negotiations with respect thereto. Indemnified Party shall give Indemnifying Party all reasonable assistance, at Indemnifying Party’s cost and expense, necessary in connection with such defence.

14. SECURITY AND DATA PROTECTION

a. If and to the extent that You are acting on behalf of a Corporation and Content that You provide to us contains personal data of an individual the Data Processing Agreement (provided below) shall be invoked automatically and shall apply to HyperSense AI processing of such Content. You will remain liable and responsible to ensure that you notify HyperSense AI in writing in advance of providing any Personal Data as part of the Content. HyperSense AI will have no method of identifying any Personal Data you include as Content when you use the Services.
b. If You are a natural person, the Data Processing Agreement will not apply to our processing. In such case HyperSense AI’s processing of any personal data contained in Content will instead be performed in accordance with our Privacy Policy for Content provided at https://www.hypersenseai.com/privacy-policy/.
c. Upon any termination or expiration of the Terms or a Subscription Form You are solely responsible for retrieving Content from the Services. Upon such termination and expiration we will delete Your account, Content within 90 days. After such period the information cannot be recovered or recreated.

15. LIMITATION OF LIABILITY

a) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (a) IN NO EVENT SHALL HYERSENSE, ITS AFFILIATES, EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THESE TERMS; AND (b) IN NO EVENT SHALL HYERSENSENSE’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THESE TERMS SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
b) Further, We will not be responsible for any compensation or damages arising in connection with Your inability to use the Services as a result of any termination or suspension of the Terms or Your use of or access to the Services.
c) You accept full and sole responsibility for developing and implementing a satisfactory full data backup and a disaster recovery capability facilitating complete data recovery of all Your data used while availing the Services.
d) YOU ACKNOWLEDGE THAT THE SERVICES ARE PERFORMED VIA THE HYPERSENSE AI PLATFORM AUTOMATICALLY, BASED, INTER ALIA, ON THE SPECIFICATIONS AND CRITERIA PROVIDED BY YOU. AS SUCH, YOU SHALL HAVE NO CLAIM AGAINST HYPERSENSE AI IN CONNECTION WITH THE RESULT OF THE SERVICES.

16. CONFIDENTIALITY

a) Neither party shall disclose any Confidential Information to any third party other than employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed, in writing, to keep such information confidential in the same or a substantially similar manner as provided for in the Terms. Neither party will use any Confidential Information except as expressly permitted by, or as required to achieve the purposes of the Terms. Each party will take reasonable security precautions to protect and safeguard the Confidential Information of the disclosing party against any unauthorized use, disclosure, transfer or publication, with at least the same degree of care and precaution as it uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care.
b) A party shall notify the other party upon discovery of any unauthorized use or disclosure of Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or breach of the Terms.
c) The provisions of this section ‎ shall continue in force for a period of one (1) year, following the termination or expiration of Your use of the Services or indefinitely, with respect to any Confidential Information which constitutes a trade secret.
d) Confidential Information shall mean information, not generally publicly known, whether or not originated by the disclosing party, which is
i. confidential to, about or created by the disclosing party;
ii. gives the disclosing party some competitive business advantage or the opportunity of obtaining such advantage;
iii. is designated as confidential or some similar designation by the disclosing party; or
iv. from all the relevant circumstances should reasonably be assumed by the receiving party to be confidential to the disclosing party. Such Confidential Information includes by way of example, but is not limited to, computer software, documentation, test data and results, information related to research and development efforts, contracts, financial information including price and cost data, employee, customer and vendor names and contact information, and marketing and development plans. However, Confidential Information does not include information which the receiving party demonstrates, through competent evidence:
• is or becomes part of the public domain through no fault of the receiving party,
• was in the possession of the receiving party, without restriction, prior to disclosure by the disclosing party,
• is disclosed to the receiving party, without obligation of confidentiality by another person with the legal authority to do so,
• is independently developed by the receiving party without use of or reference to the Confidential Information.

17. TERM AND TERMINATION

a) The Terms shall enter into force when accepted by You, either by clicking on the “I agree to Terms of Use” or similar button or check box presented in the online sign-up process on HyperSense AI website or platform, or by a executing a Subscription Form. The Terms will continue for the period set forth in the Subscription Form, unless terminated earlier as specified herein.
b) No refunds will be given for cancellation or termination of your subscription to the Services.
c) We may terminate or suspend Your subscription to the Services, for cause, if You breach these Terms and such breach is in Our view incapable of remedy, or, if the breach is capable of remedy and You do not remedy the breach upon notice to remedy such breach.
d) Upon the termination all rights and the license granted herein, and any Subscription Form, shall terminate immediately;
i. each party shall promptly return to the other party, or destroy and certify in writing to the other party of the destruction of all Confidential Information;
ii. You shall immediately cease to use the Services and shall purge from Your systems and websites any traces of the Services;
iii. You shall remit in full all payments due to HyperSense AI according to the Terms and all Subscription Forms (i.e. we will not refund any subscription fees prepaid by You for a period following the Termination Date), and following such final payment, neither party will be entitled to receive any payment from the other party.
e) The sections titled “Fees and Payment,” “Disclaimers,” “Indemnification,” “Limitation on Liability,” “Intellectual Property Rights” and “Miscellaneous” will survive any termination or expiration of these Terms.

18. MISCELLANEOUS

a) Entire agreement
The Terms and the policies incorporated by reference constitute the entire agreement between You and Us regarding the subject matter of the Terms. These Terms supersede all prior or contemporaneous representations, understandings, agreements, or communications between You and Us, whether written or verbal, regarding the Services and these Terms.
b) Changes
Please note that we may update and amend these Terms from time to time and any changes/and or the revised terms will be posted on the website. By continuing to access the Service after any changes become effective, you agree to be bound by the revised Terms.
c) Force Majeure
We will not be liable for any delay or failure to perform any obligation under the Terms where the delay or failure results from any cause beyond our reasonable control, including labour disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war, including if such event(s) applies to a subcontractor to us.
d) Marketing
You grant us the right to use Your company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications.
e) Notices
All notices under these Terms will be in writing and will be delivered to the other party by courier, mail or electronic mail. All notices to You will be sent to the address specified in the Subscription Form. All notices to HyperSense AI will be sent to legal.hypersense@subex.com.
f) Severability, no waiver, and survival
If any provision of the Terms is held invalid or unenforceable, that provision will be construed to reflect the parties’ original intent. The remaining provisions of the Terms will remain in full force and effect. Any failure of HyperSense AI to enforce any provision of the Terms will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time.
g) Governing law and dispute resolution
The law that will apply in any dispute or lawsuit arising out of or in connection with these Terms and the courts that have jurisdiction over any such dispute or lawsuit, depend on where You are domiciled as specified below.

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If Customer is domiciled in	Governing law is:	Courts with exclusive jurisdiction are:
The United States of America, Mexico, Central America, South America, Canada and the Caribbean other than Cuba	Laws of New York	New York, NY
A Country in Europe, Africa, Middle East	Laws of England & Wales	London, England
Australia, New Zealand or a country in Asia (other than North Korea)	Laws of Singapore	Singapore, Singapore
India	Laws of Republic of India	Bangalore, Karnataka, India
Any country not listed	Please contact HyperSense AI

If you have any doubts as to whether your use of the Service complies with these Terms or have a concern with any aspect of the Service, please Contact Us.