Insituware Platform Agreement
IF YOU ACCESS OR USE ANY PART OF THE PLATFORM, YOU INDICATE YOUR ACCEPTANCE OF THE AGREEMENT. IF YOU HAVE NOT READ THE AGREEMENT OR DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THE AGREEMENT, DO NOT USE THE PLATFORM. EACH INDIVIDUAL USER THAT ACCESSES OR USES ANY PART OF THE PLATFORM ON BEHALF OF AN ENTITY USER REPRESENTS AND WARRANTS THAT THE INDIVIDUAL USER IS AUTHORIZED (A) TO ACCEPT THIS AGREEMENT ON BEHALF OF THE ENTITY USER AND (B) TO BIND SUCH ENTITY USER TO THE AGREEMENT.
**PLEASE NOTE THAT BY USING THE PLATFORM AND ACCEPTING THIS AGREEMENT, YOU AGREE THAT DISPUTES ABOUT THE PLATFORM AND THIS AGREEMENT MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY, AS FURTHER DETAILED BELOW.**
1. License Rights and Restrictions.
Orders submitted by you and accepted by Insituware may include additional terms and conditions applicable to your access to and use of the Platform. Orders may address, e.g., your purchase, lease, or rental of certain Hardware from Insituware; specific license rights and restrictions regarding certain Software provided by Insituware, and Insituware’s provision of support, consulting, or other professional Services. Once an Order submitted by you is accepted by Insituware, it becomes a binding part of the Agreement between you and Insituware. In the event of any conflict or ambiguity between the specific terms of an Order and the more general terms of this Insituware Platform Agreement, the Order shall control to the extent of such conflict or ambiguity.
1.2 License Grant.
For purposes of the Agreement, the term “Software” shall include: (i) software provided by Insituware, including Insituware and third party applications and other software, including, without limitation, code, scripts, interfaces, graphics, displays, text, and other software components, (ii) software and firmware installed on any Hardware provided by Insituware that is not the subject of another written agreement between you and Insituware or between you and a third-party manufacturer of such Hardware, (iii) software you gain access to by using Hardware, Websites, and Services that is not the subject of another written agreement between you and Insituware or between you and a third-party manufacturer of such Hardware, (iv) any related documentation, and (v) any updates, modifications, or enhancements to the foregoing that are not distributed with a separate license agreement that expressly supersedes this Agreement.
Subject to the terms and conditions of the Agreement and until the Agreement is terminated by its terms, Insituware grants you a limited, revocable, non-exclusive, non-assignable, non-transferable, and non-sublicensable right to use the Software provided by Insituware to access and use the Platform strictly in accordance with the terms and conditions of this Agreement and any third party agreements applicable to your access to the Platform, including wireless telecommunications service agreements and Internet service agreements (collectively, “Related Agreements”).
1.3 Hardware, Devices, and Telecommunications Services.
In order to access and use the Platform from a device not supplied by Insituware (such as, e.g., to access the Website from a computer, tablet, or wireless device), the device may need to meet certain minimum system and compatibility requirements, which may change from time to time. Such minimum system and compatibility requirements for such devices not provided by Insituware are your responsibility. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS THE PLATFORM FROM SUCH DEVICES. Insituware does not guarantee that the Platform can be accessed on all wireless devices or wireless service plans, or through all telecommunications connections. Insituware does not guarantee that the Platform is available in all geographic locations. You acknowledge that when you use the Platform from such a device, your wireless carrier or telecommunications service provider may charge you fees for data, messaging, and/or wireless access incurred when you use the Platform.
1.5 Restrictions on Use.
The licenses granted in this Section 1 are conditioned on your compliance with the following restrictions on use. Except as expressly permitted under an Order, or otherwise by Insituware in writing, you shall not:
(a) copy, license, sublicense, sell, resell, distribute, rent, or lease the Platform, permit third parties to do so, or transfer or assign your rights under this Agreement;
(b) install, use, or permit the Software to exist on any device that is not authorized and owned or controlled by you;
(c) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Software, except and only to the extent permitted by applicable law notwithstanding this restriction;
(d)make any modification, adaptation, improvement, enhancement, translation or derivative work of the Platform;
(e)access or use any password-protected, secure, or non-public areas of the Platform, or access, copy, modify, erase, or damage any data on the Platform not intended for you, except as specifically authorized by Insituware;
(f) violate any applicable laws, rules, or regulations in connection with your access to or use of the Platform;
(g) use the Platform to violate any legal right of any third party, including any publicity or privacy right, copyright, or other intellectual property right;
(h) remove, alter, or obscure any watermarks, labels, or proprietary notices (including any notice of copyright or trademark) of Insituware or its affiliates, partners, suppliers, or licensors that appear in the Platform or any output of the Platform;
(i) use the Platform for any purpose for which it is not designed or intended;
(j) use the Platform for creating a product or service that is, directly or indirectly, competitive with or in any way a substitute for any product or service offered by Insituware;
(k) use the Platform to send automated queries to any website or to send any unsolicited commercial e-mail;
(l) use any automated means to access or use the Platform, including scripts, bots, scrapers, data miners, or similar software, or display the Platform, or portions thereof, in things (e.g., framing, scraping, etc.), without Insituware’s express written permission;
(m) attempt to probe, scan, or test the vulnerability of the Platform or breach any implemented security or authentication measures, regardless of your motives or intent;
(n) attempt to interfere with or disrupt access to or use of the Platform by any user, processor, host, or network, including, without limitation, by submitting a virus, worm, Trojan horse, or other malicious code;
(o) impersonate or misrepresent your affiliation with any person or entity; or
(p) post any content to the Platform that: (i) includes any profane, obscene, defamatory, discriminatory, threatening, menacing, harassing, or violent content; (ii) depicts or suggests nudity or sexual acts; (iii) promotes hatred, including against members of a protected group under federal, state, or local law (such as, for example, a group defined by race, gender, or national origin); (iv) is objectively shocking or disgusting; (v) depicts or suggests presently occurring illegal activity; (vi) includes unlicensed proprietary content of a third party, including, e.g., third party content protected by copyright or trademark for which you do not have a license; (vii) breaches any duty of confidentiality you may have to a third party (e.g., discloses private information about a third party without consent); or (viii) is contrary to the Agreement, including Insituware’s rules and policies.
Insituware may suspend or terminate your account and your access to and use of the Platform at any time in its sole discretion and for any reason, including any breach of the foregoing restrictions.
2.2 Separate Non-Disclosure Agreements.
2.3 Your Confidential Information.
2.4 Insituware Confidential Information.
In the course of your use of the Platform and Insituware’s provision of the Platform, you may be given access to information (in tangible form, or which is demonstrated, displayed, or disclosed orally) identified by Insituware as confidential information at the time of disclosure or which you should reasonably understand to be confidential under the circumstances (“Insituware Confidential Information”). You shall not use or disclose Insituware Confidential Information except as needed to perform your obligations or exercise your express rights under this Agreement, and you shall take all reasonable precautions to prevent such Insituware Confidential Information from being disclosed to third parties. You shall not disclose Insituware Confidential Information to any person or entity other than your employees and agents who have a reasonable need to know such Insituware Confidential Information in connection with their activities relating directly to your access to and use of the Platform. You shall be responsible for advising your employees and agents of the confidential nature of the Insituware Confidential Information and for ensuring compliance by your employees and agents with your obligations under this Agreement. You shall use the same measures to protect the confidentiality of the Insituware Confidential Information that you use to protect the confidentiality of your own proprietary and confidential information and materials of like kind, but in no event less than a reasonable standard of care. You shall take (and shall cause your employees and agents to take) any steps required to avoid inadvertent disclosure of Insituware Confidential Information in your possession. Insituware Confidential Information disclosed by Insituware to you shall at all times remain the property of Insituware and its licensors.
The following information shall not be considered Confidential Information: (a) information which is publicly known as of the date of this Agreement; (b) information which hereafter becomes publicly known, unless as a result of a breach of an obligation of confidentiality by the party receiving Confidential Information; (c) information which a disclosing party agrees in writing is not confidential; and (d) information which is required to be produced by law or judicial process (however, upon receipt of a demand for production of Confidential Information pursuant to law or judicial process, the receiving party shall use reasonable efforts to notify the disclosing party of such demand in sufficient time to allow the disclosing party to move to prevent or limit such disclosure).
Your and Insituware’s obligations of confidentiality under this Agreement shall continue in full force and effect during the term of the Agreement and for three (3) years following termination of the Agreement; provided that obligations of confidentiality with respect to any confidential information that you or Insituware reasonably and in writing identify to the other as a trade secret prior to three (3) years following termination of this Agreement shall survive for as long as such confidential information is reasonably maintained by the disclosing party as a trade secret.
2.7 Equitable Remedies.
You and Insituware recognize that serious injury could result to the other and its business in the event of a breach of the obligations of confidentiality under this Agreement. Therefore, you and Insituware agree that each party will be entitled to a restraining order, injunction, or other equitable relief if the other party breaches its obligations of confidentiality under this Agreement, in addition to any other remedies and damages that would be available at law or in equity.
3. Operation and Fees.
3.1 Changes to Features and Functionality.
The specific features and functionality of the Platform are dynamic and may change from time to time. Insituware reserves complete discretion with respect to the operation of the Platform. Insituware also reserves the right to limit, withdraw, suspend, or discontinue any functionality or feature of the Platform at any time.
Any fees specific to your access to and use of the Platform, if any, shall be detailed in an Order. Insituware will make commercially reasonable efforts to prominently display and explain any and all applicable fees and payments related to the Platform. If your access to and use of the Platform incurs any recurring fees and you provide a payment card or account to pay such recurring fees, you authorize Insituware to charge such payment card or account for such recurring fees as they become due, including with respect to recurring fees due in advance of any renewal of your access to and use of the Platform following an initial term set out in an applicable Order. Unless Insituware provides reasonable advance notice otherwise, fees due for any such renewal term shall be at the same rate as applicable to the initial term. Insituware may contract with one or more third parties to facilitate the processing of fees and payments. Unless expressly stated otherwise, all fees and payments are non-refundable. Insituware may make promotional offers with different features and different rates for products and services offered through the Platform. These promotional offers, unless made to you, shall have no bearing whatsoever on your access to and use of the Platform.
4. Intellectual Property Rights.
4.1 Rights to Platform.
You acknowledge and agree that the Platform and all copyrights, patents, trademarks, trade secrets, and other intellectual property rights associated therewith are, and shall remain, the property of Insituware and its affiliates, licensors, and suppliers. Furthermore, you acknowledge and agree that the source and object code of the Software and the format, directories, queries, algorithms, structure, and organization of the Platform are the intellectual property and proprietary and confidential information of Insituware and its affiliates, licensors, and suppliers. Except as expressly provided in an Order (such as, e.g., with respect to Hardware purchased by you from Insituware), this Agreement does not effect a “sale” of the any portion of the Platform and confers no title or ownership in any portion of the Platform, any intellectual property rights in the Platform, or any copies, modifications, enhancements, or derivative works of the Platform. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Platform by implication, estoppel, or other legal theory, and all rights in and to the Platform not expressly granted in the Agreement are hereby reserved and retained by Insituware.
4.2 Third Party Software.
The Platform may utilize or include third party software that is subject to open source or third party license terms (“Third Party Software”). You acknowledge and agree that your right to use such Third Party Software as part of the Platform is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms, and disclaimers contained therein. In the event of a conflict between the terms of this Agreement and the terms of such open source or third party licenses, the terms of the open source or third party licenses shall control with regard to your use of the relevant Third Party Software.
4.3 Insituware’s Marks.
You are not authorized to use any Insituware trademarks, service marks, trade names, logos, tag lines, domain names, or social media handles (collectively, “Marks”) in any advertising, publicity, or in any other commercial manner without the prior written consent of Insituware, which may be withheld for any or no reason.
4.4 License to User Data.
4.5 Intellectual Property Infringement.
Insituware respects, and expects Users to respect, the intellectual property rights of others. Insituware may remove material from the Platform that appears in its sole discretion to infringe upon the intellectual property rights of others. If you believe a work protected by a copyright you own has been posted on the Platform without authorization, you may notify Insituware and provide the following information:
(a) a physical or electronic signature of the person authorized to act on behalf of the copyright owner;
(b) identification of the copyrighted work or works claimed to have been infringed;
(c) a detailed description of the material you claim is infringing, together with information sufficient to enable Insituware to locate it, including the URL or other description of where the infringing material appears;
(d) your name, mailing address, telephone number, and e-mail address;
(e) a statement by you that you believe in good faith that the copyrighted material identified is being used in a manner that is not authorized by the copyright owner, its agent or the law; and
(f) a statement by you that the above information is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright allegedly infringed.
To notify Insituware of a claimed copyright infringement, please contact email@example.com.
5. Third Party Properties and Services.
You acknowledge that the Platform may refer you to physical venues, geographical sites, products, services, websites, advertisements, promotions, recommendations, advice, information, and materials created, provided, owned, under the control of, or maintained by third parties, including advertisers, publishers, content partners, marketing agents, and vendors, including of Third Party Software (“Third Party Properties and Services”).
You acknowledge that references to Third Party Properties and Services on the Platform are provided solely as a convenience to you, your access to and use of the Third Party Properties and Services is at your sole discretion and risk, and Insituware and its affiliates, partners, suppliers, and licensors (as applicable) shall have no liability to you arising out of or in connection with your access to and use of the Third Party Properties and Services. INSITUWARE HEREBY DISCLAIMS ANY REPRESENTATION, WARRANTY, OR GUARANTY REGARDING THE THIRD PARTY PROPERTIES AND SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY REPRESENTATION, WARRANTY, OR GUARANTY REGARDING THE AVAILABILITY, QUALITY, RELIABILITY, FEATURES, APPROPRIATENESS, ACCURACY, COMPLETENESS, OR LEGALITY OF THE THIRD PARTY PROPERTIES AND SERVICES.
5.3 Third Party Terms and Conditions.
You acknowledge and agree that your access to and use of Third Party Properties and Services and any correspondence or business dealings between you and any third party referred to you by using the Platform may be governed by and require your acceptance of applicable terms and conditions of such third party, including, without limitation, any general terms, privacy policies, representations, warranties, or disclaimers contained therein. Furthermore, you acknowledge and agree that the Third Party Properties and Services and any related third party terms and conditions are subject to change by the applicable third party at its sole discretion and without any notice. You assume all risks arising out of or resulting from your transaction of business over the Internet and with any third party, and you agree that Insituware and its affiliates, partners, suppliers, and licensors are not responsible or liable for any loss or result of the presence of information about or links to such third parties.
You acknowledge and agree that the provision of access to any Third Party Properties and Services, without more, shall not constitute or imply an endorsement by Insituware or its affiliates of such Third Party Properties and Services. Insituware reserves the right to restrict or deny access to any Third Party Properties and Services otherwise accessible through the Platform, although Insituware has no obligation to restrict or deny access even if requested by you.
5.5 Inappropriate Materials.
You understand that by accessing and using the Third Party Properties and Services, you may encounter information, materials, and subject matter (i) that you or others may deem offensive, indecent, or objectionable; (ii) which may or may not be identified as having explicit language, and (iii) that may automatically and unintentionally appear in search results, as a link or reference to objectionable material. Notwithstanding the foregoing, you agree to use the Third Party Properties and Services at your sole risk and that Insituware and its affiliates, partners, suppliers, and licensors shall have no liability to you for information, material, or subject matter that is found to be offensive, indecent, or objectionable.
6. Term and Termination.
Except as provided in an Order, including with respect to any minimum term commitment, the Agreement shall be effective from the time you first access or use the Platform until terminated by either you or Insituware pursuant to the following terms or as expressly provided in an Order.
(a) Except as provided in an Order, you may terminate the Agreement at any time, for any reason or for no reason, by cancelling all User accounts and providing written notice to Insituware of termination.
(b) Either party may terminate this Agreement if, following notice of a material breach caused by the other party, such other party has not commenced a cure of such material breach within seven (7) days or such material breach is not cured within fourteen (14) days.
(c) Either party may terminate this Agreement if the other party files a petition for bankruptcy or receivership, makes an assignment for the benefit of creditors, or should a receiver be appointed or applied for.
(d) Upon the termination of the Agreement for any reason, you shall cease all use of the Platform other than Hardware purchased by you, uninstall and delete all copies of client application Software in your possession, custody, or control, and return all leased Hardware provided to you, if any. YOU ACKNOWLEDGE AND ACCEPT THAT CERTAIN HARDWARE PURCHASED BY YOU FROM INSITUWARE MAY NOT FUNCTION FULLY, OR AT ALL, IF ACCESS TO OTHER COMPONENTS OF THE PLATFORM ARE TERMINATED. You shall return or delete (at Insituware’s discretion and subject to Insituware’s reasonable direction) all Insituware Confidential Information in your possession, custody, or control and, upon request of Insituware, promptly certify to Insituware that you have done so. To the extent that you cannot return or delete certain Insituware Confidential Information, you shall inform Insituware of the circumstances and your confidentiality obligations applicable to such Insituware Confidential Information shall survive termination of the Agreement. All rights and licenses to the Platform granted under the Agreement shall terminate immediately upon termination of the Agreement. Insituware may disable or terminate all your Individual User accounts. You authorize Insituware to charge any payment card or account on file for any leased Hardware that is returned to Insituware and is not working or damaged (beyond normal wear and tear) or not returned to Insituware within thirty (30) days of termination of this Agreement.
(e) Upon the termination of the Agreement (i) by you for your convenience (under Section 6.2(a)) or (ii) by Insituware for your uncured material breach (under Section 6.2(b)) or for your insolvency (under Section 6.2(c)), Insituware may elect (A) to charge you as its liquidated damages for such termination either fifty percent (50%) of the unpaid balance of all recurring fees for any minimum term set out in an applicable Order, or (B) to forgo liquidated damages in favor of any other claims and remedies available to it at law or in equity. If Insituware elects liquidated damages under this paragraph, you authorize Insituware to charge any payment card or account on file for such liquidated damages.
7. Warranties and Disclaimer of Warranties.
7.1 Software and Services Performance Warranty.
During the Term of this Agreement, Insituware warrants solely to you as a User that the Software and Services that are developed and provided by Insituware as part of the Platform, excluding third-party software and services, shall perform without material defect for their intended and authorized use. Without cost to User, Insituware shall use commercially reasonable efforts to promptly correct any failure of such Software and Services provided by Insituware to perform in accordance with the foregoing warranty. If Insituware is unable, after using commercially reasonable efforts, to correct the failure of such Software and Services to perform in accordance with the foregoing warranty, User’s sole and exclusive remedy shall be to terminate this Agreement and receive a refund of the payments actually received by Insituware from User attributable to such Software and Services that are the subject of the warranty claim. Notwithstanding the foregoing, Insituware shall have no obligation to make corrections, repairs, or replacements required as a result of (i) catastrophe, fault, or gross negligence of User, (ii) use of the Platform in a manner not specified in applicable documentation, or (iii) force majeure events (as provided in Section 11) and causes external to the Platform such as, but not limited to, power failure, electric power surges, and loss or degradation of telecommunications services.
7.2 Software and Services Non-infringement Warranty.
During the Term of this Agreement, Insituware warrants solely to you as a User that User’s intended and authorized use of the Software and Services that are developed and provided by Insituware as part of the Platform, excluding third-party software and services, for their intended purpose shall not infringe (or misappropriate) any United States patent, copyright, or trade secret. As User’s sole and exclusive remedy for Insituware’s breach of the foregoing warranty, Insituware shall, in its reasonable judgment, and at its option and expense: (i) obtain for User the right to continue using such Software and Services without infringement, (ii) replace or modify such Software and Services so that they become non-infringing, or (iii) if, in Insituware’s opinion, obtaining the remedies in (i) or (ii) is not commercially reasonable, as Insituware’s sole obligation, terminate User’s license to the infringing Software and cease providing the Services. If User is prevented from accessing or using such Software or Services due to such an infringement claim, User shall have no obligation to pay Insituware any fees for such access to or use of the Software or Services during any period during which User was so prevented from accessing or using the Software or Services and Insituware shall provide User a refund of fees actually paid by User to Insituware for any period during which User was so prevented from accessing or using the Software or Services. Notwithstanding the foregoing, Insituware shall have no obligation to User to the extent that any infringement or claim thereof is based upon (i) use of the Platform in combination with equipment or software not supplied by Insituware where such use would not itself be infringing, (ii) use of the Platform outside the scope of the rights and licenses granted to User under this Agreement, (iii) use of the Platform with an application which was not specified or contemplated by applicable documentation, (iv) use of a non-current version or release of any implicated Software, when a claim could have been avoided or the risk of a claim reduced by using the current release or version unless failure to use the current release or version is attributable to Insituware’s failure to make the current release or version available to User or notify User of the availability of such release or version, (v) modifications of the Platform not made or authorized by Insituware, or (vi) Insituware’s compliance with User’s designs, specifications, or instructions.
7.3 Insituware Hardware Performance Warranty.
Except as otherwise provided in an applicable Order, for one (1) year after delivery to you per an applicable Order, Insituware warrants solely to you as a User that Insituware Hardware, excluding third-party hardware, shall perform for its intended and authorized use without material defect and in substantial conformance with its applicable documentation. Without cost to User, Insituware shall use commercially reasonable efforts to promptly correct any failure of such Insituware Hardware or replace such Insituware Hardware that fails to perform in accordance with the foregoing warranty. Insituware may elect, in its sole discretion, to replace such Insituware Hardware with non-identical replacement Hardware that is new, used, or refurbished, provided that such replacement Hardware has substantially the same or enhanced functionality as compared to the replaced Insituware Hardware. After a repair or replacement, the balance of the duration of the foregoing warranty shall apply to the repaired or replaced Hardware. If Insituware is unable, after using commercially reasonable efforts, to correct the failure of such Insituware Hardware to perform in accordance with the foregoing warranty by repairing or replacing the Insituware Hardware, User’s sole and exclusive remedy shall be to receive a refund of the payments actually received by Insituware from User attributable to such Insituware Hardware that is the subject of the warranty claim upon return of such Insituware Hardware to Insituware. Notwithstanding the foregoing, Insituware shall have no obligation to make corrections, repairs, or replacements required as a result of (i) catastrophe, fault, or gross negligence of User, (ii) use of the Insituware Hardware or any part of the Platform in a manner not specified in applicable documentation, or (iii) force majeure events (as provided in Section 11) and causes external to the Insituware Hardware or Platform such as, but not limited to, power failure, electric power surges, and loss or degradation of telecommunications services.
7.4 Insituware Hardware Non-infringement Warranty.
Except as otherwise provided in an applicable Order, for one (1) year after delivery to you per an applicable Order, Insituware warrants solely to you as a User that User’s authorized use of Insituware Hardware, excluding third-party hardware, for its intended purpose shall not infringe (or misappropriate) any United States patent, copyright, or trade secret. As User’s sole and exclusive remedy for Insituware’s breach of the foregoing warranty, Insituware shall, in its reasonable judgment, and at its option and expense: (i) obtain for User the right to continue using such Insituware Hardware without infringement, or (ii) replace or modify such Insituware Hardware so that it becomes non-infringing. Insituware may elect, in its sole discretion, to replace such Insituware Hardware with non-identical replacement Hardware that is new, used, or refurbished provided that such replacement Hardware has substantially the same or enhanced non-infringing functionality as compared to the replaced Insituware Hardware. If User is prevented from using such Insituware Hardware due to such an infringement claim, Insituware shall provide User with a partial refund of the payments actually received by Insituware from User attributable to any sale of such Insituware Hardware by Insituware to User that is the subject of the warranty claim upon return of such Insituware Hardware to Insituware according to the following scale: (A) seventy-five percent (75%) of the payments received if User was so prevented from using such Insituware Hardware during the first six (6) months following delivery; (B) fifty percent (50%) of the payments received if User was so prevented from using such Insituware Hardware after the first six (6) months and before the first nine (9) months following delivery; and (C) twenty-five percent (25%) of the payments received if User was so prevented from using such Insituware Hardware after the first nine (9) months and before the end of the year following delivery. Notwithstanding the foregoing, Insituware shall have no obligation to User to the extent that any infringement or claim thereof is based upon (i) use of the Platform in combination with equipment or software not supplied by Insituware where the use of the Platform would not itself be infringing, (ii) use of the Platform outside the scope of the rights and licenses granted to User under this Agreement, (iii) use of the Platform with an application which was not specified or contemplated by applicable documentation, (iv) use of a non-current version or release of any implicated Software, when a claim could have been avoided or the risk of a claim reduced by using the current release or version unless failure to use the current release or version is attributable to Insituware’s failure to make the current release or version available to User or notify User of the availability of such release or version, (v) modifications of the Platform not made or authorized by Insituware, or (vi) Insituware’s compliance with User’s designs, specifications, or instructions.
7.5 Third-Party Hardware.
Third-Party Hardware is warranted only to the extent warranted to User by the third party manufacturer, as provided in an applicable Order or in a separate agreement between User and such third party manufacturer; provided, however, that Insituware will use commercially reasonable efforts to provide technical support for Third-Party Hardware for up to ninety (90) days after such Third-Party Hardware was first received by Insituware from such third party manufacturer and thereafter Insituware will use commercially reasonable efforts in Insituware’s discretion to facilitate resolution of Third-Party Hardware warranty and technical issue between User and such third party manufacturer.
7.6 Third Party Properties and Services.
Consistent with Sections 5.2 and 5.3, Third Party Properties and Services are warranted only to the extent warranted to User by the third party provider, as provided in an applicable Order.
7.7 Disclaimer of Warranties.
EXCEPT FOR ANY EXPRESS WARRANTIES PROVIDED UNDER THE AGREEMENT (INCLUDING IN AN ORDER), YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE PLATFORM AND ANY THIRD PARTY PROPERTIES AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. INSITUWARE AND ITS AFFILIATES, PARTNERS, SUPPLIERS, AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND GUARANTIES REGARDING THE PLATFORM AND THIRD PARTY PROPERTIES AND SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. INSITUWARE AND ITS AFFILIATES, PARTNERS, SUPPLIERS, AND LICENSORS MAKE NO WARRANTY THAT (I) THE PLATFORM OR THIRD PARTY PROPERTIES AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE PLATFORM OR THIRD PARTY PROPERTIES AND SERVICES WILL BE OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE PLATFORM OR THIRD PARTY PROPERTIES AND SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM INSITUWARE OR FROM THE PLATFORM SHALL CREATE ANY REPRESENTATION, WARRANTY, OR GUARANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
7.8 Disclaimer Regarding High Risk Use.
THE PLATFORM IS NOT ONE HUNDRED PERCENT (100%) FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN ANY SITUATION WHERE FAILURE OR FAULT OF ANY KIND OF THE PLATFORM, OR ANY PART OF THE PLATFORM, COULD LEAD TO DEATH OR SERIOUS BODILY INJURY OF ANY PERSON OR TO SEVERE PHYSICAL INJURY, SEVERE PROPERTY DAMAGE, OR SEVERE ENVIRONMENTAL HARM, INCLUDING WITHOUT LIMITATION, USE IN CONNECTION WITH CRITICAL TRACKING OF PERSONNEL, AIRCRAFT NAVIGATION OR AIR TRAFFIC CONTROL, NUCLEAR OR CHEMICAL ASSETS OR FACILITIES, WEAPONS SYSTEMS, LIFE SUPPORT DEVICES AND SYSTEMS, AND CLASS III MEDICAL DEVICES (“HIGH RISK USE”). HIGH RISK USE IS STRICTLY PROHIBITED. END USERS ARE NOT LICENSED TO USE THE PLATFORM IN, OR IN CONJUNCTION WITH, ANY HIGH RISK USE; YOU AGREE NOT TO USE THE PLATFORM IN, OR IN CONNECTION WITH, ANY HIGH RISK USE; AND INSITUWARE DISCLAIMS—AND YOU RELEASE INSITUWARE FROM—ANY AND ALL LIABILITY ASSOCIATED WITH HIGH RISK USE.
8. Limitation of Liability.
8.1 Limitation on Type of Damages.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL INSITUWARE NOR ITS AFFILIATES, PARTNERS, SUPPLIERS, AND LICENSORS, NOR EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES BE LIABLE TO YOU (OR TO ANY OTHER THIRD PARTY PERMITTED ACCESS TO OR USE OF ANY PLATFORM PROVIDED UNDER THIS AGREEMENT) FOR PERSONAL INJURY OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHETHER ARISING IN CONTRACT, EQUITY, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT), NOR FOR DAMAGES ARISING FROM DELAY; LOSS OF GOODWILL; LOSS OF OR DAMAGE TO DATA; WORK STOPPAGE; THE FAILURE OR MALFUNCTION OF HARDWARE NOT PROVIDED BY INSITUWARE; LOST PROFITS, LOST REVENUE, OR LOST SAVINGS (ACTUAL OR ANTICIPATED); OR ANY ECONOMIC LOSS IN CONNECTION WITH OR ENSUING FROM USE OF, OR INABILITY TO USE, THE PLATFORM PROVIDED BY INSITUWARE UNDER THIS AGREEMENT OR ANY THIRD PARTY PROPERTIES AND SERVICES, EVEN IF INSITUWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Limitation on Amount of Damages.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL INSITUWARE’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT EXCEED FIFTY U.S. DOLLARS ($50.00). THIS LIMITATION ON THE AMOUNT OF LIABILITY SHALL APPLY WHETHER A CLAIM ARISES IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, INCLUDING BREACH OF WARRANTY OR NEGLIGENCE AND EVEN IF INSITUWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL SPECIFICALLY SURVIVE A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS AGREEMENT.
8.3 General Release.
YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
8.4 Limitation on Time of Action.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO ACTION ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
8.5 Inapplicability of Limitations in Some Jurisdictions.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You shall indemnify, defend, and hold harmless Insituware and its affiliates, partners, suppliers, and licensors, and each of their respective officers, directors, agents, and employees (the “Indemnified Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest, and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) your access to or use of the Platform or Third Party Properties and Services; (ii) your breach of this Agreement or Related Agreements; (iii) your violation of law; (iv) your negligence or willful misconduct; or (v) your violation of the rights of a third party, including the infringement by you of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the Agreement.
Insituware does not warrant that the Platform will be compatible or interoperable with your device or any hardware, software, or equipment installed on or used in connection with your device that is not provided by Insituware. Furthermore, you acknowledge that compatibility and interoperability problems can cause the performance of your device to diminish or fail completely, and may result in permanent the damage to your device, loss of the data located on your device, and corruption of the Software and files located on your device. You acknowledge and agree that Insituware and its affiliates, partners, suppliers, and licensors shall have no liability to you for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
11. Availability and Force Majeure.
It is not possible to operate the Platform with 100% guaranteed uptime. Insituware will make reasonable efforts to keep the Platform operational. However, certain technical difficulties, routine site and software maintenance and upgrades, and other events may, from time to time, result in interruptions to or outages of the Platform. In addition, Insituware reserves the right at any time, and from time to time, to modify or discontinue (on a temporary or permanent basis) certain functions of the Platform, with or without notice. You agree that Insituware shall not be liable to you or to any third party for any direct or indirect consequence of any modification or temporary suspension, discontinuance of, or interruption to the Platform. In the event Insituware’s performance of this Agreement, or any obligation hereunder, is prevented, restricted, or interfered with by reason of acts of God or of the public enemy, acts of the Government in its sovereign capacity, fires, floods, epidemic, strikes, picketing or boycotts, or any other circumstances caused by natural occurrences or third party actions beyond the reasonable control and without the fault or negligence of Insituware, Insituware shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction, or interference.
12.1 Governing Law.
This Agreement shall be deemed to take place in the State of New Jersey and shall be governed by and construed in accordance with the laws of the State of New Jersey, excluding conflicts of law principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
12.2 Dispute Resolution.
(a) Informal Dispute Resolution. Insituware intends to resolve any and all disputes that may arise between it and its Users in a cost-effective and non-disruptive manner, preferably without the time and expense of formal dispute resolution. Toward this end, you agree to the following dispute resolution procedure. If you are unable to resolve any dispute in the ordinary course of business, you shall send a written notice to Insituware in which you outline the issues in dispute, enclose any relevant documents, and state the requested relief. Insituware shall respond within ten (10) business days with identical information from its perspective. You and a representative of Insituware shall meet or communicate electronically within ten (10) business days of the delivery of the response, and as often as you and Insituware mutually deem necessary or desirable thereafter, in an attempt to resolve the matter. If, within sixty (60) days of the first communication, you and Insituware fail to resolve the matter, you may then proceed to arbitration as described below.
(b) Arbitration. After failing to mutually resolve any disputes by the informal dispute resolution provided above and except for equitable claims, small claims court, and claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s intellectual property rights, any controversy or claim arising out of or relating to this Agreement or the Platform shall be submitted to and settled through binding arbitration. By agreeing to arbitrate, the parties hereby waive their rights to a jury trial.
(i) The arbitration will be conducted in accordance with this Agreement, the Federal Arbitration Act and the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA Rules”). In the event of a conflict, the provisions of the AAA Rules will control, except where those Rules conflict with this Agreement, in which case this Agreement will control.
(ii) The arbitration shall be conducted before a single arbitrator selected as provided in the AAA Rules and who shall have at least five (5) years of relevant experience. The arbitration shall be commenced and held in the State of New Jersey, unless otherwise mutually agreed to by the parties. No potential arbitrator may be appointed unless the potential arbitrator has agreed in writing to be bound by these procedures.
(iii) To the extent state law is applicable, the arbitrator shall apply the substantive law of the State of New Jersey. The U.N. Convention on Contracts for the International Sale of Goods shall not apply. Any issue concerning the location of the arbitration, the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, and any discovery disputes, shall be resolved by the arbitrator.
(iv) Each party will be entitled to reasonable discovery in preparation for the arbitration, including the production of relevant documents and the deposition of witnesses. Any disputes involving discovery shall be heard and resolved by the arbitrator. All objections are reserved for the arbitration hearing, except for objections based on privilege and proprietary or confidential information.
(v) All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrator may disclose the existence, content, or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a party shall give written notice to all other parties and shall afford such parties a reasonable opportunity to protect their interests.
(vi) The decision of the arbitrator shall be reduced to writing, shall be final and binding on the parties except for fraud, misconduct, or errors of law, and judgment upon the decision rendered may be entered in any court having jurisdiction thereof. The arbitrator may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this Agreement. The arbitrator shall make a finding as to which party is the substantially prevailing party in any final decision issued by the arbitrator for determination of the payment of fees and costs, as provided below.
(c) Fees and Costs Paid to Substantially Prevailing Party. The parties agree that the substantially prevailing party in any arbitration or litigation regarding a dispute arising out of this Agreement shall have its reasonable attorneys’ fees and costs incurred in connection with the arbitration or litigation paid by the other party.
(d) Jury and Class Action Waiver. YOU AGREE THAT ANY PROCEEDINGS TO RESOLVE ANY DISPUTE SHALL BE SOLELY CONDUCTED BY YOU ON AN INDIVIDUAL BASIS. YOU AGREE THAT YOU WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, REPRESENTATIVE ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR SIMILAR ACTION. YOU AGREE THAT YOU HEREBY WAIVE YOUR RIGHT TO A JURY TRIAL IN ANY PROCEEDINGS TO RESOLVE ANY DISPUTE.
If any provision of this Agreement is held to be invalid or unenforceable with respect to a party, the remainder of this Agreement, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Except as provided herein, the failure to exercise a right or require performance of an obligation under this Agreement shall not effect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach.
12.5 Export Control.
You may not use or otherwise export or re-export any portion of the Platform except as authorized by United States law. You represent and warrant that you are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. You also agree that you will not use the Platform for any purposes prohibited by United States law.
12.6 Access and Use Where Prohibited.
Access to and use of the Platform are unauthorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation this Section.
12.7 Operation of the Platform from the United States of America.
By accessing and using the Platform, you acknowledge and agree that Insituware controls and operates all parts of the Platform from its offices in the United States of America and that the Platform is intended for use by Users while located in the United States of America. Unless expressly stated to the contrary, Insituware makes no representation that the Platform is appropriate or will be available for use in other locations. Unless otherwise explicitly stated, all marketing or promotional materials found on or accessible through the Platform are solely directed to individuals, companies, or other entities while located in the United States of America. Insituware reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or service to any person or geographic area. Any offer for any feature, product, or service made on or through the Platform is void where prohibited. If you access or use the Platform from outside the United States of America, you are entirely responsible for compliance with applicable local laws and other applicable laws. You may not use any portion of the Platform in violation of applicable export laws and regulations.
12.8 Modification or Amendment.
Insituware may modify or amend the terms of this Agreement at any time and will use commercially reasonable efforts to notify you of such modification or amendment by, e.g., posting a copy of the modified or amended Agreement on the Insituware website and/or providing a link to the modified or amended Agreement within the Platform. You will be deemed to have agreed to any such modification or amendment by your decision to continue using the Platform following the date in which the modified or amended Agreement is posted on the Insituware website.
The following sections of this Agreement and any other provisions of this Agreement which by their express language or by their context are intended to survive the termination of this Agreement shall survive such termination: 2 (as provided in Section 2.6) 4, 5, 6, 7, 8, 9, and 12.
You shall not assign this Agreement or any rights or obligations herein without the prior written consent of Insituware. Insituware may assign, transfer, or novate this Agreement, or assign any right or delegate any duty under this Agreement, to any third party. Insituware will use reasonable commercial efforts to notify you of any such assignment, transfer, novation, or delegation by Insituware. Any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
12.11 Entire Agreement.
This Agreement including the documents incorporated herein by reference constitute the entire agreement with respect to the use of the Platform licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.
The headings used in this Agreement are included solely for the purpose of convenience, and shall not be used in any way to construe, modify, explain, enlarge or restrict any of the provisions hereof.