INFLUITIVE CORPORATION TERMS OF SERVICE
Updated April 1, 2015
THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN THE USE OF INFLUITIVE SERVICES BY YOU THE CUSTOMER (“YOU,” “YOUR” OR “CUSTOMER”).
You may accept this Agreement by signing an Order Form or taking another action that indicates Your acceptance of this Agreement. By accepting this Agreement, You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You”, “Your” or “Customer” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use Influitive Services.
“Advocate” means an individual who is authorized by Customer to use Influitive Services on behalf of the Customer to complete challenges.
“Engaged Advocate” means an Advocate that has completed a Qualifying Challenge administered by You within a 90 day period.
“Affiliate” means any entity which 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.
“Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by Influitive (either alone or jointly with Customer or others) that result from Professional Services included in any Order Form and/or SOW, and provided to Customer hereunder.
“Influitive Services” means the products and services that are ordered by You.
“Order Form(s)” means the form evidencing the initial subscription order for Influitive Services and any subsequent Order Forms specifying, among other things, the Order Effective Date, Influitive Services pricing, the applicable Fees, the billing period, and other charges as agreed to between the parties, each such fully executed Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail);
“Qualifying Challenge” means a challenge other than follow/like on Twitter, Facebook and LinkedIn.
“Renewal Service Term” means each subsequent renewal period beginning on the expiration of the Initial Term.
“Your Data” means all electronic data or information created by You or Your Advocate as a result of using Influitive Services.
- INFLUITIVE SERVICES
2.1. Order Process. Customer shall order Influitive Services by completing and signing an Order Form. Each accepted, fully executed Order Form shall be deemed to become incorporated herein by reference as if attached and made an integral part of this Agreement. If professional services (such as implementation, training, consulting, etc.,) are included in any Order Form (“Professional Services”), in addition to the provisions in any mutually agreed upon Statement of Work (“SOW”) the following provisions shall apply. Influitive shall retain all ownership rights to any and all Deliverables excluding, any pre-existing technology or materials supplied by Customer for incorporation into such Deliverable. Influitive grants Customer a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any Deliverable, to the extent necessary to permit Customer to use the Deliverable in connection with Influitive Services during the Term. Customer acknowledges that nothing in this Agreement shall restrict or limit Influitive from performing similar services for any third party.
2.2. Influitive Responsibilities. Influitive shall provide to Customer support in accordance with its policies for Influitive Services (other than premium services which Influitive may charge additional fees for), at no additional charge, and/or upgraded support if purchased.
3.1 Fees. Customer shall pay all fees or charges as specified on each executed Order Form and SOW (“Fees”). All payment obligations are non-cancelable and all amounts paid are nonrefundable. Except for Termination for Cause set forth in section 5.2, Influitive charges and collects in advance for committed subscription fees and in arrears for usage which exceeds such committed amounts as defined on each Order Form.
3.2 Payment Terms. Unless otherwise set forth in the applicable Order Form, payment terms are net fifteen (15) days from the date of Influitive’s invoice, without offsets or deductions of any kind, and payment is due in US dollars. If payment under an applicable Order Form is to be made via credit card, such payment shall be chargeable upon invoice date. In the event that Customer’s use of Influitive Services exceeds the committed subscription usage (“Overage”), additional Overage fees shall apply as set forth in the applicable Order Form. Such Overage Fees shall be assessed quarterly in arrears.
3.3 Taxes. Influitive ‘s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Influitive’s income. If Influitive has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Influitive with a valid tax exemption certificate authorized by the appropriate taxing authority.
- NON-PAYMENT AND SUSPENSION
In addition to any other rights granted to Influitive herein, Influitive reserves the right to suspend or terminate this Agreement, any related Order Forms, and Customer’s access to Influitive Services if Customer’s account becomes delinquent and is uncured for a period of ninety (90) days. If Customer believes Customer’s bill is incorrect, Customer must contact Influitive in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Customer agrees to provide Influitive with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Customer agrees to update this information within thirty (30) days of any change to it.
- TERM AND TERMINATION
5.1 Term. The term of an applicable Order Form will begin on the Effective Date of the applicable Order Form and shall continue for the initial term specified in such Order Form (“Initial Service Term”). In the event that an Order Form contains Services added to an existing subscription, such added Services shall be billed on a pro-rated basis and will be coterminous with the Initial Service Term or applicable Renewal Service Term of such Order Form. Unless otherwise set forth in an applicable Order Form, or unless this Agreement is terminated as described in Section 5.2, upon expiration of the Initial Service Term of any Order Form, such Order Form/s will renew automatically for a subsequent Renewal Service Term of twelve (12) months (subject to any Fee adjustment for excess Engaged Advocate user volume), unless either party notifies the other party of its intent to terminate at least thirty (30) days prior to the end of the then current Service Term.
5.2 Termination for Cause. Either party may terminate this Agreement (and any Order Forms then in effect) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after delivery of notice of such breach. In the event when Customer terminates the Agreement for cause, Influitive shall refund Customer any paid but unused Fees. Sections 6, 7, 8.2, 9, 10, and 12 shall survive any termination or expiration of this Agreement.
- PROPRIETARY RIGHTS
6.1. Grant of License. Subject to the terms and conditions of this Agreement, Influitive hereby grants Customer a non-exclusive, non-transferable, non-assignable, worldwide limited license to use the Purchased Influitive Services provided hereunder solely for Customer’s own business purposes and only for the specific number of Engaged Advocates and time periods as set forth in each fully executed Order Form.
6.2. Reservation of Rights in Influitive Services. Subject to the limited rights expressly granted hereunder, Influitive reserves all rights, title and interest in and to Influitive Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer agrees not to challenge the validity or Influitive’s ownership of the intellectual property rights in Influitive Services. Influitive reserves the right to make changes, modifications and enhancements to Influitive Services from time to time.
6.3. Restrictions. You shall not (i) permit any third party to access Influitive Services except as permitted herein, (ii) create derivate works based on Influitive Services, (iii) copy, frame or mirror any part or content of Influitive Services, (iv) reverse engineer Influitive Services, or (v) access Influitive Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of Influitive Services.
6.4. Your Data. Subject to the limited rights granted by You hereunder, Influitive shall acquire no right, title or interest from You under this Agreement in or to Your Data, including any intellectual property rights therein.
6.5. Suggestions. Influitive shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into Influitive Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Advocates relating to the operation of Influitive Services.
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“),whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include Influitive Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party: (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
- WARRANTIES AND DISCLAIMER
8.1 Representations and Warranties. Influitive represents and warrants to Customer as follows: (a) Influitive has the right to furnish Influitive Services and all materials provided under this Agreement free of all liens, claims, encumbrances and other restrictions; (b) No Services or materials provided by Influitive nor the use thereof by Customer, will constitute an infringement, misappropriation, or unlawful use or disclosure of any intellectual property rights or other rights of a third party; (c) Influitive Services will conform in all material respects with all reference, training and marketing materials provided or distributed by Influitive and will be provided in a competent, workmanlike manner in accordance with applicable industry standards; (d) updates to Influitive Services hereunder shall not degrade, impair or otherwise adversely affect the performance or operation of Influitive Services; (e) Influitive has complied with, and will continue to comply with, all applicable domestic, foreign and local laws and regulations and, will obtain all applicable permits and licenses in connection with its obligations under this Agreement; and (f) any Services provided by Influitive do not and will not transfer to Customer’s computing environment any viruses, disabling code, or similar programs or mechanisms that disrupt, modify, delete, harm or otherwise impede the operation of Customer’s systems.
8.2 DISCLAIMER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8.1 , INFLUITIVE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. INFLUITIVE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- LIMITATION OF LIABILITY
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, IN NO EVENT SHALL INFLUITIVE’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE INFLUITIVE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH INFLUITIVE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- MUTUAL INDEMNIFICATION
Each party shall indemnify, defend and hold the other party harmless from any third party claims or damages made against the other party as a result of (a) any gross negligence, misrepresentation, or willful misconduct on the part of the indemnifying party, (b) breach of Section 6.3, 6.4 or 7, (c) failure to abide by all applicable laws, rules, regulations. The indemnified party will: (i) give the indemnifying party prompt written notice of any such claim; (ii) allow the indemnifying party to control the defense and settlement of such claim; (iii) not enter into any settlement or compromise of such claim that does not contain a full release of the indemnifying party without the indemnifying party’s prior written consent (which shall not be unreasonably withheld, delayed or denied); and (iv) provide reasonable assistance requested by the indemnifying party, at indemnifying party’s expense, in the defense or settlement of such claim.
For the purpose of this Agreement, Customer shall grant to Influitive a limited, non-exclusive, non-transferable, royalty-free license to use the trade-marks, logo designs and tradenames provided by Customer (collectively, the “Customer Marks”) subject to the terms of this Agreement. Use of the Customer Marks by Influitive is strictly limited to identifying Customer as a Influitive customer on its website and in Influitive promotional materials – provided any such use has been pre-approved, not be unreasonably withheld, in writing by Customer. Influitive hereby acknowledges that validity of Customer’s ownership of the entire right, title and interest in and to the Customer Marks; that their use by Influitive shall be for the benefit of Customer; and that such use shall not create Influitive any right, title or interest in or to any of the Customer Marks. Without limiting the generality of the foregoing, Customer agrees that “Powered by Influitive” or similar marks may appear in forms, web pages and other outputs of Influitive Services.
12.1 Notice. All legal notices required to be provided under this Agreement must be delivered in writing (a) in person, (b) by email, (c) by a nationally recognized overnight delivery service or, (d) by certified mail to the address as shown on the other party’s record. All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above.
12.2 No Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing either party may assign this Agreement together with all rights and obligations hereunder, without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
12.3 Governing Law. If Customer is a resident of the United States, this Agreement shall be construed in accordance with and governed by the laws of the state of New York and subject to the exclusive jurisdiction of the state of New York. If Customer is not a resident of the United States this Agreement shall be construed in accordance with and governed by the laws of the province of Ontario, Canada and subject to the exclusive jurisdiction of the province of Ontario.
12.4 Relationship. The Parties are independent contractors. This Agreement does not create a joint venture, partnership, employment, franchise, or agency relationship exists between Customer and Influitive.
12.5 Waiver and Severability. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
12.6 Entire Agreement. This Agreement, together with any applicable Order Form(s) (including any other documents referenced therein),comprises the entire agreement between Customer and Influitive regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements. To the maximum extent permitted and enforceable under applicable law, Influitive reserves the right to modify the terms and conditions of this Agreement, effective upon receiving written approval from You.