Terms of Service

INFLUITIVE CORPORATION TERMS OF SERVICE

Updated May 31, 2017

This service agreement (the “Agreement“) is an agreement between the person or entity accessing or using the Website or the Services (“Customer“) and Influitive Corporation  (“Influitive”) (Influitive, together with Customer, the “Parties” and each, a “Party“), and is entered into as of the earlier of: (A) the date Customer uses the Services; and (B) the date Customer agrees to be bound by the terms and conditions set out herein pursuant to an Order Form (the “Effective Date“).

BY USING THE SERVICES (INCLUDING THE ADVOCATE-HUB PLATFORM), CUSTOMER ACKNOWLEDGES THAT IT HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 12.7. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE OFFERING, INCLUDING USE OF ANY ELEMENT THEREOF.

1. DEFINITIONS

“Advocate” means an individual who is authorized by Customer to use the Services on behalf of the Customer.

“Advocate-Hub Platform” means collectively, the Website and all systems of Influitive and Influitive’s third-party suppliers that are used in the provision of the Services.

“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.

“Challenge” means a task or activity such as answering questions, commenting, social sharing insights, or participating in a designated online discussion on the Advocate-Hub Platform.

“Contributing Hub Advocate” means an Advocate who has completed a Challenge, Referral or contributed to a Discussion within a rolling 90 day time period.

“Customer Data” means all data or information submitted or posted by Customer or an Advocate using the Services.

“Discussion” means participation within the Advocate-Hub Platform in a threaded conversation forum for which the Advocate may be awarded points.

“Intellectual Property Rights” means: any and all proprietary rights provided under: (i) patent law; (ii) copyright law; (iii) trade-mark law; (iv) design patent or industrial design law; (v) semi-conductor chip or mask work law; or (vi) any other applicable statutory provision or common law principle, including trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, systems, methods, improvements, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, systems, methods, improvements, inventions or know-how; and any and all applications, registrations, licenses, sublicenses, agreements or any other evidence of a right in any of the foregoing.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“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).

“Referral” means, depending on the context in which it is used: (i) a third party that is introduced by an Advocate as a potential customer to sign up for a product and/or service provided by Influitive or Influitive’s customer; or (ii) the process of such introduction of a third party by an Advocate.

“Renewal Term” means each subsequent renewal period beginning on the expiration of the Initial Term.

“Services” means the products and services that are ordered or used by Customer.

“Website” means, collectively, the Influitive websites, including the website located at: http://www.influitive.com

2. INFLUITIVE SERVICES

2.1. Order Process. Customer shall order Influitive Services by completing and signing an Order Form. In the event that Customer requires a purchase order number issued prior to payment of any Influitive invoices issued pursuant to the applicable Order Form, then such purchase order number must be provided to Influitive prior to the Effective Date.   Customer’s execution and return of the applicable Order Form to Influitive without designating a purchase order number is deemed an acknowledgment that no purchase order is required for payment of invoices hereunder.  Terms, provisions or conditions on any purchase order, if any, together with any acknowledgments or other business processes, forms or writing that Customer may use or require in connection with the provision of the Services from Influitive are of no force and effect and will have no effect on the rights, duties and obligations of the Parties hereunder, regardless of any failure of Influitive to object to such matters.  If Influitive performs Services before the Effective Date, all Services provided by Influitive before that date will be considered to have been provided under all of the terms and conditions of this Agreement. In the event that Services are provided after the expiration or termination of an Order Form, such Order Form will be automatically extended for successive thirty (30) day renewal terms until terminated by either party with at least thirty (30) days’ written notice prior to the end of any renewal term.

2.2. Influitive Responsibilities. Influitive shall provide to Customer support in accordance with its policies for the Services (other than premium services which Influitive may charge additional fees for), at no additional charge, and/or upgraded support if purchased.

2.3. Customer Responsibilities.

2.3.1. Each Advocate shall select a unique user identification name (“Userid”) and password.  This enables Advocates to access the Services at any time during the Term, by use of their Internet browser. Unless otherwise specified in an Order Form, neither Customer nor its Advocates need to install any software to use the Services. Influitive will only store Advocate’s passwords in encrypted form; they will not be readable by Influitive personnel. Advocates must protect their Userid’s and passwords, and not make them available to persons or entities not authorized to use the Services on behalf of Customer.

2.3.2. Customer is responsible for all activities that occur in Advocates accounts and for Advocate’s compliance with this Agreement including privacy policy located at http://influitive.com/privacy.  Customer acknowledges and understands that Influitive may suspend an Advocate’s access to any particular feature or Service if Influitive has reason to believe that such Advocate has violated this Agreement.

2.3.3. Customer shall: (i) prevent unauthorized access to, or use of, the Services, and notify Influitive promptly of any such unauthorized access or use; (ii) comply with all applicable local, provincial, federal and foreign laws in using the Services; and (iii) use the Services only for purposes that are permitted by this Agreement.

2.3.4. Customer understand that all Customer Data, whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Customer Data originated. This means that Customer, and not Influitive, are entirely responsible for all Customer Data uploaded, posted, emailed, transmitted, or otherwise made available via the Service. Influitive does not control or monitor the Customer Data posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Customer Data. Customer understands that by using the Service, they may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will Influitive be liable in any way for any content, including, but not limited to, any errors or omissions in any Customer Data, or for any loss or damage of any kind incurred as a result of the use of or reliance upon any content posted, emailed, transmitted, or otherwise made available via the Service.

3. FEES

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 thirty (30) days from the date of Influitive’s annual invoice, without offsets or deductions of any kind, and payment is due in US dollars.

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.

4. 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 thirty (30) days. If Customer believes Customer’s bill is incorrect, Customer must contact Influitive in writing within thirty (30) 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.

5. 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 Term”). 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 Term of any Order Form, such Order Forms will renew automatically for a subsequent Renewal Term of twelve (12) months (subject to any Fee adjustment for increased 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 Term. Initial Term and any Renewal Term shall be collectively defined as the “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. If the Customer terminates the Agreement for cause, Influitive shall refund Customer any paid but unused Fees.  The provisions of this Agreement, which by their nature or express terms would survive termination or expiration of this Agreement, shall survive any termination or expiration including Sections 6, 7, 8.3, 9, 10, and 12.

6. 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 access and use the  Services provided hereunder solely for Customer’s own business purposes and only for the specific number of Contributing 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 the 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 the Services. Influitive reserves the right to make changes, modifications and enhancements to the Services from time to time.

6.3. Restrictions. Customer shall not, and shall not allow third parties to: (i) license, sublicense, lease, rent, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way provided however that the Customer may permit use of Services, strictly in accordance with this Agreement, by third parties working on behalf of the Customer; (ii) access (or attempt to access) any of the Services by any means (including automated means) other than through the Userid that is provided by Influitive; (iii) reverse engineer, adapt, translate, decompile, or otherwise derive the source code for the Services; or access the Services in order to copy or imitate any ideas or features; or build a product or service similar to the Services; or use similar features, software, functions or graphics as those of the Services, whether or not intended to compete with the Services; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit Malicious Code or material in violation of third-party privacy rights, or (v) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose.

6.4. Customer Data. All right, title and interest in and to the Customer Data and all related Intellectual Property Rights, modifications and additions thereto shall at all times remain with Customer.  Customer grants Influitive a limited license, during the Term, to use and display Customer Data within the Services. Influitive shall use commercially reasonable efforts to maintain the security and integrity of Customer Data

6.5. Suggestions. Influitive shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer (including Advocates) relating to the operation of the Services.

7. CONFIDENTIALITY

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. Customer Confidential Information shall include Customer Data; Our Confidential Information shall include the 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 Customer 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.

8. REPRESENTATIONS, WARRANTIES AND DISCLAIMER

8.1 Influitive Representations and Warranties. Influitive represents and warrants to Customer on an ongoing basis as follows: (i) the Services will be performed using reasonable care and skill and in accordance with this Agreement; and (ii) that the functionality of the Services will not be materially decreased during the initial term of an Order Form.

8.2 Customer Representations and Warranties. Customer represents and warrants to Influitive that Customer has the capacity to enter into this legally binding Agreement. If Customer is using the Influitive Services on behalf of another person or entity, Customer hereby represents and warrants to Influitive that Customer has the authority to bind such person or entity to this Agreement.

8.3 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.

9. LIMITATION OF LIABILITY

9.1 Consequential Damages. Neither Influitive nor its affiliates shall be liable in any way for indirect, incidental, consequential, special or exemplary damages, punitive damages or penalties (even if Influitive has been advised of the possibility of such damages or penalties), arising out of this Agreement, including but not limited to, loss of revenue, change in share price, loss of anticipated profits or lost business.  This limitation of liability applies to any damages or penalties, including without limitation those caused by any failure of performance, error, omission, interruption, delay in operation or transmission, whether for breach of contract, tortious conduct, acts or omissions, negligence, or under any other claim or cause of action.

9.2. Liability. IN NO EVENT SHALL INFLUITIVE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE SIX MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT APPLY TO A BREACH OF CONFIDENTIALITY OBLIGATIONS CONTAINED LIST SECTION 7.

10. INDEMNIFICATION

10.1. Influitive Indemnification. Influitive agrees to defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party under the laws of the United States or Canada (an “Infringement Claim”), and shall indemnify Customer for any damages and attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, an Infringement Claim; provided that Customer (i) promptly gives Influitive written notice of the Infringement Claim; (ii) gives Influitive sole control of the defense and settlement of the Infringement Claim (provided that Influitive may not settle any Infringement Claim unless the settlement unconditionally releases Customer of all liability); and (iii) provides to Influitive all reasonable assistance, at Influitive’ expense.  In the event of an Infringement Claim, or if Influitive reasonably believes the Services may infringe or misappropriate, Influitive may in its discretion and at no cost to Customer (a) modify the Services so that they no longer infringe or misappropriate, (b) obtain a license for Customer’s continued use of the Services in accordance with this Agreement, or (c) terminate the applicable Order Form for such Services upon written notice and refund to Customer any prepaid Fees covering the remainder of the term of such Order Forms after the effective date of termination.  For greater clarity, this indemnity does not apply to Infringement Claims resulting from or arising out of Customer Data or any third party content. This section 10.1 states Influitive’ sole liability to, and Customer’s exclusive remedy, in respect of any Infringement Claim.

10.2 Customer Indemnity. Customer agrees to defend Influitive and its affiliates against any claim, demand, suit, or proceeding made or brought against Influitive or any Influitive affiliate by a third party arising out of or in connection with Customer Data or any use of the Services in violation of this Agreement, and shall indemnify Influitive and its affiliates for any damages, attorney fees and costs finally awarded against Influitive or any of its affiliates as a result of, and for amounts paid by Influitive or any affiliate under a court-approved settlement of, such claim, demand, suit or proceeding; provided that Influitive (i) promptly gives Customer written notice of the claim, demand, suit or proceeding; (ii) gives Customer sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that Customer may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases Influitive and its affiliates of all liability); and (c) provides to Customer  all reasonable assistance, at Customer’s expense.

11. MARKETING

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. GENERAL

12.1 Notice. All legal notices required to be provided under this Agreement must be delivered in writing (i) in person, (ii) by email, (iii) by a nationally recognized overnight delivery service or, (iv) 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.

12.7 Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, INFLUITIVE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT“), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY INFLUITIVE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE NOTICE THEREOF IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS EARLIER).