October 25, 2017
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE. BY USING ANY OF THE SERVICES, YOU CONFIRM YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN YOU MAY NOT USE THE SERVICES
TERMS AND CONDITIONS
- Provision of Product. InsightSquared will provide Customer with access to its Data Intelligence product in accordance with terms and conditions of this Agreement and the specific product offering set forth on the Order Form executed by the parties in connection with this Agreement (the “Product”). In order to use the Product, Customer is responsible at Customer’s own expense for (a) providing InsightSquared with access to the API of the Data Partner (as defined on the Order Form) in order to allow InsightSquared to access Customer’s data; and (b) for providing its own access to the Internet, either directly or through devices that access Web-based content, and for paying any fees associated with such access.
- License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the Order Form, InsightSquared hereby grants to Customer a non-exclusive, non-transferable license for Customer’s Users (as defined below) to access and use the Product with respect to the number of Users for which Customer has paid fees, solely for Customer’s internal business purposes and solely for the specific Product offering indicated on the Order Form. A “User” shall mean an employee, or independent contractor of Customer. This license is restricted to use by Customer (or its applicable Permitted Affiliates, as defined below, subject to the requirements in the next sentence below) and its Users and does not include the right to use InsightSquared Technology (as hereinafter defined) on behalf of any third party or the right to permit any non-User to access or use the Product. Customer may permit its wholly-owned subsidiaries or other affiliates it controls (“Permitted Affiliates”) to exercise its rights or perform its obligations hereunder; provided that (i) such Permitted Affiliates agree to be bound by the terms and conditions of this Agreement as if they were “Customer” herein (and Customer’s execution of the Order Form shall be deemed to be on behalf of itself and such Permitted Affiliates for this purpose); and (ii) all acts and omissions of such Permitted Affiliates (for clarity, including such Permitted Affiliates’ personnel) shall be deemed to be acts and omissions of Customer and Customer shall be responsible therefor. Customer also agrees to be bound by any further restrictions set forth on the Order Form. All rights not expressly granted to Customer are reserved by InsightSquared and its licensors. There are no implied rights.
- InsightSquared Technology. In connection with the delivery of the Product, InsightSquared shall operate and support the hosted environment used by InsightSquared to deliver the Product, including, without limitation, the InsightSquared Technology (as hereinafter defined), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other information developed or provided by InsightSquared or its suppliers under this Agreement. For purposes of this Agreement, “InsightSquared Technology” means all of InsightSquared’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by InsightSquared in providing the Product, but for clarity, excludes Customer Data (provided that, any formats, templates, methodologies, rules, algorithms and software used to create Customer Data shall remain InsightSquared Technology).
- Downtime. Subject to the terms and conditions of this Agreement, InsightSquared shall use commercially reasonable efforts to provide access to the Product for twenty-four (24) hours a day, seven (7) days a week throughout the term of this Agreement. Customer agrees that from time to time the Product may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which InsightSquared may undertake from time to time (“Scheduled Maintenance”); or (iii) causes beyond the control of InsightSquared or which are not reasonably foreseeable by InsightSquared, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). InsightSquared shall use commercially reasonable efforts to provide at least two weeks notice, but in no case shall it provide less than 5 days notice of such Scheduled Maintenance. InsightSquared will exercise reasonable efforts to perform Scheduled Maintenance in the windows described below:
Order of Preference Maintenance Window 1st Sat or Sun (US Eastern Time) at least three days before the end of a calendar month 2nd (to be used when 1st Maintenance Window not reasonably available) Monday through Friday (US Eastern Time) at least three days before the end of a calendar month, beginning no earlier than 9pm and ending no later than 5am
InsightSquared shall have no obligation during performance of such operations to mirror Customer Data on any other server or to transfer Customer Data to any other server. InsightSquared shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Product in connection with Downtime, whether scheduled or not.
- Restrictions. Unauthorized use (including any resale or commercial exploitation) of the Product or any InsightSquared Technology in any way is expressly prohibited. Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of any InsightSquared Technology, or access the Product in order to build a competitive product or service or copy any ideas, features or functions of the Product. Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign the Product or any InsightSquared Technology to any third-party. Customer shall take all measures necessary to ensure compliance by all of its Users with all terms and conditions of this Agreement, and Customer shall be responsible for all acts and omissions of such Users in connection with this Agreement. Customer shall keep all passwords safe and secure, and shall be responsible for all use of the Product using passwords issued to Customer and its Users. In addition to InsightSquared’s other remedies hereunder, InsightSquared reserves the right upon ten (10) days prior written notice to Customer to terminate any User’s right to access the Product if InsightSquared can reasonably demonstrate to Customer that such User has materially violated the restrictions contained in this Agreement.
- InsightSquared Ownership. Customer acknowledges and agrees that (i) as between InsightSquared and Customer, all right, title and interest in and to the InsightSquared Technology and the Product and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain InsightSquared’s or its licensors’, and this Agreement in no way conveys any right or interest in the InsightSquared Technology or the Product other than a limited license to use the Product in accordance herewith, and (ii) the InsightSquared Technology and the Product are works protected by copyright, trade secret, and other proprietary rights and laws. The InsightSquared name, the InsightSquared logo, and the product names associated with the Product are trademarks of InsightSquared or third parties, and no right or license is granted to use them. Customer shall not remove any InsightSquared trademark or logo from the Product.
- Fees; Taxes. Customer shall pay to InsightSquared the fees specified and in accordance with the schedule set forth on the applicable Order Form. If Customer pays fees by credit card, InsightSquared will charge the credit card the applicable fee in advance, at the frequency set forth in the Order Form. Customer remains liable for any fees which are rejected by the card issuer or charged back to InsightSquared. If fees are invoiced, payment is due thirty days from date of invoice (unless otherwise specified on the Order Form). Customer agrees to pay a late charge of one and half percent (1 1/2%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid when due. Amounts set forth on the Order Form exclude taxes. Customer will be solely responsible for, and will promptly pay, all taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement, the Products, or Customer’s and its Users access to the Product, except for taxes based on InsightSquared’s net income or payroll.
- Travel Expenses. Customer shall reimburse InsightSquared for out-of-pocket travel and living expenses, to the extent requested or approved by Customer, within thirty days after invoice by InsightSquared.
- Customer Data. All data and content which the Customer makes available to InsightSquared in connection with this Agreement, including data provided via use of the Data Partner’s API (the “Customer Data”) is stored in a private and secure fashion, and will not be used by InsightSquared except as necessary to provide the Product. As between InsightSquared and Customer, Customer retains ownership of all Customer Data, including all right, title and interest therein. Customer hereby grants to InsightSquared a limited, non-exclusive, non-transferable right to use, display, transmit and distribute the Customer Data solely in connection with providing the Product to Customer. In addition, InsightSquared may use Customer Data to create aggregated data (e.g. with other customers) and statistics, and InsightSquared may during and after the term hereof, use and disclose such data and statistics in its discretion so long as any disclosed data does not identify Customer or any individual (collectively “Benchmarking”). Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. InsightSquared shall operate the Product in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections. Customer acknowledges that Customer Data obtained by InsightSquared using the Data Partner’s API will be transmitted outside Data Partner’s system, and to such extent the Data Partner is not responsible for the privacy, security or integrity of such data (for clarity, the Data Partner is not InsightSquared; Data Partner is defined on the Order Form). Within 30 days of receiving written request, InsightSquared shall undertake commercial best efforts to ensure all Customer Data is deleted or otherwise destroyed.
- Customer Responsibilities. Customer is solely responsible for all Customer Data. InsightSquared does not guarantee the accuracy, integrity or quality of such Customer Data. Customer shall not: (a) upload or otherwise make available to InsightSquared any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to InsightSquared any Customer Data that Customer does not have a right to transmit under any law or under contractual relationships; (c) use, upload or otherwise transmit any Customer Data or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (d) knowingly upload or otherwise make available to InsightSquared any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Product or Servers or networks connected to the Product; (f) upload or otherwise make available to InsightSquared any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder; or (g) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the Federal Trade Commission, any rules of any securities exchange, and laws regarding the export of technical data.
- Warranties. (a) Customer represents and warrants that: (i) Customer Data and its use by InsightSquared as permitted by this Agreement will not infringe on the copyrights, trademarks, service marks, patents, or other intellectual property or personal rights held by any third party; (ii) Customer has all corporate (or other organization type) power and authority to enter into this Agreement and has duly and validly authorized this Agreement; and (iii) Customer shall comply with all laws, regulations and rules applicable to Customer and its use of the Product. (b) Customer shall not, and shall not knowingly permit others to, (i) remove any proprietary notices or labels on the Products (including without limitation, any copyright, trademark notices), or (ii) use the Product other than as expressly permitted hereunder. (c) InsightSquared represents and warrants that (i) it will provide the Product in a competent and workmanlike manner; (ii) it has all corporate power and authority to enter into this Agreement and has duly and validly authorized this Agreement, and (iii) it shall comply with all laws, regulations and rules applicable to it in providing the Product hereunder. InsightSquared does not warrant that it will be able to correct all reported defects or that use of the Product will be uninterrupted or error free. InsightSquared makes no warranty regarding features or products provided by Data Partner or any other third parties. InsightSquared retains the right to modify its products and services at its discretion provided that doing so does not have a material adverse impact on the Product hereunder. Customer’s sole remedy for InsightSquared’s breach of the warranty in clause (c)(i) above shall be that InsightSquared shall remedy the applicable error, or if InsightSquared is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Product for the period during which the breach of warranty occurred. (d) Customer acknowledges and agrees that except for the express warranties provided above in this Section 10, all warranties, whether express, implied or statutory, and all obligations and representations as to performance, including all warranties which might arise from course of dealing or custom of trade and including all implied warranties of merchantability or fitness for a particular purpose, are hereby expressly excluded and disclaimed by InsightSquared. No Data Partner makes any representations or warranties with respect to InsightSquared’s performance under this agreement.
- Limitation of Liability. (A) EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS HEREUNDER (SECTION 12), CUSTOMER’S BREACH OF SECTION 5 (RESTRICTIONS), GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER:
(I) TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EACH PARTY’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO INSIGHTSQUARED UNDER THIS AGREEMENT DURING THE PRIOR SIX (6) MONTHS; AND
(II) IN NO EVENT SHALL EITHER PARTY (OR FOR INSIGHTSQSUARED, ITS LICENSORS OR OTHER PROVIDERS) BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (WHICH MAY INCLUDE THE LOSS OF ANTICIPATED PROFITS OR REVENUES) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
(B) THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT INSIGHTSQUARED HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY LIMITED REMEDY OR THIS AGREEMENT SHALL FAIL ITS ESSENTIAL PURPOSE.
- Indemnification. (a) InsightSquared shall defend, indemnify and hold harmless Customer, its affiliates, and their respective directors, officers, employees and agents (collectively, “Related Persons”) from and against any liabilities, losses, damages, costs or expenses, including reasonable attorneys’ fees, experts’ fees and court costs (collectively, “Losses”) to the extent resulting from any third party claim, demand, suit or proceeding (each, a “Claim”) based on any allegation that the Product, as provided by InsightSquared hereunder, infringes or misappropriates any copyright or trade secret of such third party. If a claim of infringement or misappropriation occurs, or if InsightSquared determines that a claim is likely to occur, InsightSquared shall have the right, in its sole discretion, to either: (i) procure for Customer the right or license to continue to use the Product free of the infringement claim; or (ii) replace or modify the Product to make it non-infringing. If these remedies are not reasonably available to InsightSquared, InsightSquared may, at its option, terminate this Agreement and return to Customer any pre-paid unused fees for the Product. Despite the provisions of this Section, InsightSquared has no obligation with respect to any claim of infringement or misappropriation that is based upon or arises out of (x) Customer’s use of the Product other than in accordance with the applicable documentation or InsightSquared’s written directions or policies; or (y) any third party software, other technology, data or content, or any Customer Data. FOR ANY INFRINGEMENT BY THE PRODUCT, THIS SECTION STATES THE ENTIRE LIABILITY OF INSIGHTSQUARED AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES.
(b) Customer shall defend, indemnify and hold harmless InsightSquared and its Related Persons from and against any Losses to the extent resulting from any Claim based on (i) any allegation that the Customer Data infringes, violates or misappropriates such third party’s intellectual property or proprietary rights, or (ii) Customer’s breach of Section 9(d) (Customer Responsibilities).
(c) As conditions to the indemnification obligations in paragraphs a and b above, the indemnified party shall (i) promptly notify the indemnifying party in writing of any Claim for which indemnity is claimed, provided that failure to so notify will not relieve the indemnifying party’s indemnification obligation except to the extent it is prejudiced thereby; (ii) allow the indemnifying party sole control, at its expense, of the defense and settlement of the Claim, provided that (A) the indemnified party may participate in such defense and settlement via counsel of its own choosing, at its sole expense, and (B) any settlement shall be subject to the prior written consent of the indemnified party, not unreasonably withheld; and (iii) reasonably cooperate with the indemnifying party with respect to such defense and settlement.
- Assignment. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Neither party shall, without the prior written consent of the other party, assign or transfer this Agreement, in whole or in part, provided that either party may assign this Agreement in its entirety, without consent, to any successor to its business, including in connection with any merger, consolidation, and any sale of all or substantially all of its assets or any other transaction in which more than fifty percent (50%) of the party’s voting securities are transferred, provided that such successor agrees in writing to be bound by the terms of this Agreement.
- Entire Agreement. This Agreement, including the Order Form, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written (including confidentiality agreements), relating to the subject matter herein. Notwithstanding any course of dealings between the parties at any time, no purchase order, invoice or similar document shall be construed to modify any of the terms of this Agreement, unless the document is (a) signed by both parties and (b) expressly refers to all provisions of this Agreement that the parties intend to modify by such document. This Agreement may be executed electronically or in multiple counterparts, all of which, taken together, shall constitute one and the same instrument. Delivery of an executed signature page by facsimile or email shall be deemed effective as delivery of a manually-executed counterpart. Any conflict between the terms set forth on an Order Form and this Agreement shall be controlled by the terms and conditions set forth in this Agreement.
- Termination and Suspension. This Agreement takes effect on the Order Effective Date and shall continue until completion for the period of performance set forth in the Order Form. Unless otherwise set forth on the Order Form, upon the initial contract end date this Agreement will automatically renew for successive terms of 24 months, unless either party gives written notice of non-renewal at least 30 days before the renewal date. Notwithstanding the foregoing, each party will have the right to terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. In addition to the foregoing, InsightSquared also reserves the right, in its sole and absolute discretion, to suspend providing the Product and Customer agrees that InsightSquared may shut off and suspend Customer’s access to the Product at any time, without having to terminate this Agreement, if Customer is more than thirty (30) days late with respect to any undisputed payments due hereunder, subject to being provided written notice of such payment delinquency by InsightSquared. InsightSquared will not be obligated to restore access to the Product until Customer has paid all fees owed to InsightSquared.
- After Termination. Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder shall terminate and InsightSquared shall no longer provide access to the Product to Customer and (ii) Customer shall cease and cause its Users to cease using the Product. Upon termination of this Agreement by InsightSquared due to Customer’s uncured breach, in addition to any other remedies InsightSquared may have for such breach, Customer shall pay InsightSquared for all fees that had accrued prior to the termination date. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Sections 5, 6, 10(d), and 11-20, and all accrued payment obligations, will survive termination or expiration of this Agreement.
- Confidentiality. Each Party agrees that during the term of this Agreement, information that is confidential may be disclosed to the other Party, including, but not limited to InsightSquared Technology, Customer Data, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving Party can demonstrate (a) is generally known to the public at the time of its disclosure, or thereafter becomes generally known to the public through a source other than the receiving Party, (b) was known to the receiving Party as of the time of its disclosure, (c) is independently developed by the receiving Party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the other Party’s Confidential Information to anyone other than its employees, contractors or Users who have a need to know in connection with this Agreement. Each Party shall notify its employees, contractors and Users of their confidentiality obligations with respect to the other Party’s Confidential Information and shall require its employees, contractors and Users to comply with these obligations. The confidentiality obligations of each Party and its employees and Users shall survive three years beyond the expiration or termination of this Agreement. InsightSquared shall have the right to publicly use Customer’s name and logo on lists published on InsightSquared’s website and in marketing materials. InsightSquared may announce the customer relationship in a press release provided that InsightSquared obtains Customer’s prior approval of the release and the wording of the release, not unreasonably withheld.
- Notices. Any notice required or permitted hereunder shall be in writing and may be delivered to the contact person listed on the Order Form as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by certified or registered mail, return receipt requested, upon verification of receipt; or (iv) by electronic delivery when receipt is confirmed orally. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section.
- Force Majeure. If either party is prevented from performing any of its obligations under this Agreement (except for Customer’s obligation to pay amounts due to InsightSquared) due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, acts of vandals, acts of hackers, or Denial of Service attacks (DoS) (each, a “Force Majeure Event”), the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence; provided that, if a party suffering a Force Majeure Event is unable to resume performance within thirty (30) days, the other party may terminate this Agreement by written notice thereof.