TERMS OF SERVICE (V.02/20/2020)
February 20, 2020
BEFORE USING INFLUITIVE’S SERVICES (AS DEFINED BELOW), PLEASE READ THESE END USER TERMS OF SERVICE (THIS “AGREEMENT”). THIS AGREEMENT IS INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”) AND INFLUITIVE CORPORATION (“INFLUITIVE”). PURSUANT TO THIS AGREEMENT, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE INFLUITIVE’S ENGAGEMENT PLATFORMS; AND/OR RECEIVE OTHER SERVICES FROM INFLUITIVE. THIS AGREEMENT AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND INFLUITIVE, EFFECTIVE AS OF THE EARLIEST OF THE DATE OF MUTUAL EXECUTION OF THE ORDER FORM OR THE DATE IN WHICH THE CUSTOMER USES THE SERVICES.
“Advocate” means individuals who have been invited by Customer to join Customer’s Advocate community by using 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. “Customer Content” means all data or information uploaded, submitted or posted by Customer and its Users during the Service Term. “Documentation” means Influitive’s online knowledge base, documentation, and/or help and training materials, as updated from time to time, accessible via Influitive.com or login to the applicable Service. “Services” or “Subscription” means the online, Web-based SaaS application provided by Influitive on a Subscription basis, including but not limited to AdvocateHub, AdvocateAnywhere; and Upshot; associated offline components; third party applications; and professional services that are ordered by Customer under an Order Form or a Statement of Work. “User” means an individual who is authorized by Customer to use the Services on behalf of the Customer, including but not limited to employees, consultants, contractors, and agents of Customer.
2. INFLUITIVE SERVICES
2.1 Provision of Services. Influitive shall make the Services available to Customer and its Users on a subscription basis pursuant to this Agreement and the applicable Order Forms during the Service Term (the “Subscription”).
2.2 Subscriptions. Unless otherwise specified in the applicable Order Form or the Statement of Work, (i) Services are purchased as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the same pricing as that for the pre-existing Subscriptions, prorated for the remainder of the Term in effect at the time the additional Services are added; and (iii) the added Subscriptions shall terminate on the same date as the pre-existing Subscriptions. Professional Services may be purchased by Customer at Influitive’s then current rates and shall be detailed in the corresponding Statement of Work.
2.3 Influitive Responsibilities. Influitive shall: (i) provide to Customer basic support for the Services at no additional charge, and/or upgraded support, if purchased, provided that the terms of such upgraded support are described in the Order Form; (ii) make the Services available in accordance with Influitive’s policies; and (iii) provide the Services in accordance with applicable laws and government regulations.
2. 4 Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and of the means by which it acquired Customer Content, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Influitive promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with Influitive’s instructions and applicable laws and government regulations. Customer shall not (a) make the Services available to any third party other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, as such term is defined in Section 8.3, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
3.1 Fees. Customer shall pay Influitive all the fees specified in the Order Forms (the “Fees”). Except as otherwise provided in the Order Form, all Fees are quoted in United States currency; Fees are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and Fees are non-refundable. Fees for the Services will be invoiced in advanced in accordance with the terms of the Order Form.
3.2 Payment Terms. Unless otherwise stated in the Order Form, payment is due within thirty (30) days of the invoice date. Any payment not received from Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Influitive reserves the right to suspend the Services without liability to Influitive, until such account is paid in full.
3.3 Taxes. 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. TERM AND TERMINATION
4.1 Term of the Agreement. This Agreement commences on the last date of execution of the Order Form and continues until all Services expire or this Agreement is mutually terminated by the parties.
4.2 Term of the Services. The Services are offered for the initial term of service specified in the Order Form (the “Initial Term”). The Initial Term shall begin on the Contract Start Date stated in the Order Form. Following the Initial Service Term, Services may or may not renew depending on the terms of the Order Form ( “Renewal Term”). If, during the Initial Term or any Renewal Term, Customer adds any additional Subscriptions to its use of the Service, the amount of Customer’s Fees shall increase the sum set forth in the Order Form and, the Service Term for any such additional Services shall be coterminous with the Initial Term or any Renewal Term in effect at the time.
4.3 Termination of the Agreement. This Agreement and any Services may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.4 Early Termination. If Customer wishes to terminate the Services under this Agreement prior to the expiration of the current Term and such termination is not due to Influitive’s breach, all Fees which would otherwise be due through the end of the Term in effect at the time, including any applicable taxes shall be due and payable within thirty (30) days of the effective date of termination and no refunds for pre-paid Services will be provided. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.
5. PROPRIETARY RIGHTS
5.1 Grant of License. Subject to the terms herein, Influitive grants Customer a non-exclusive, non-transferable, non-assignable, worldwide limited license to access and use the Services solely for Customer’s own business purposes.
5.2 Reservation of Rights. 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.
5.3 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 User ID 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.
5.5 Excluded Customer Content. Customer acknowledges that the Services are not intended to be a repository of personal identifiable information (“PII”) or personal data that may be considered sensitive or privileged, such as financial information, non-public personally identifiable information that could be legally considered private or sensitive, including without limitation, social security numbers, driver’s license numbers, birth dates, personal bank account numbers, and credit card numbers (the “Excluded Customer Content”). Notwithstanding the above, in the event that Customer or any of its Users uploads Excluded Customer Content to the Services in violation of this Agreement, Customer agrees to remove such information immediately, or at its reasonable discretion and upon prior written notice, Influitive may purge such data from its systems.
5.6 User Passwords.Customer shall ensure that its Advocate and Users protect their unique user identification name and not make them available to persons or entities not authorized to use the Services. Influitive will only store User’s passwords in encrypted form. Influitive personnel will not be able to read User’s passwords.
5.7 Destruction of Customer Content. Upon written request by Customer made within 30 days after the effective date of termination, Influitive will provide Customer with temporary access to the Services so that Customer can retrieve its Customer Content. After such 30-day period, Influitive shall have no obligation to maintain or provide any Customer Content and shall reasonably thereafter, unless legally prohibited, delete all Customer Content in Influitive’s systems or otherwise in its possession or control.
6.1 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“), 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, including but not limited to Customer Content, the terms and conditions of this Agreement and any Order Form, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by either party. However, Confidential Information (other than Customer Content) 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.
6.2 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.
6.3. 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.
7. REPRESENTATIONS AND WARRANTIES
7.1 Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into these Terms, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
7.2 Functionality Warranty. Influitive warrants that the Services will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of the applicable Documentation.
7.3 Data Security and Warranty. Influitive has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Services at reputable third-party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that the Customer Content will be maintained accurately and safeguarded as well as technical and physical controls to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Influitive, whether by accident or otherwise. If Customer’s use of the Services involves processing personal data pursuant to Regulation 2016/679 (the “GDPR”) and/or transferring personal data outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the data processing addendum shall apply to such personal data and be incorporated into the Agreement upon the execution and submission of the Data Processing Addendum to Influitive in accordance with its terms. The Data Processing Addendum is available upon written request. Influitive warrants that it is considered a “service provider” according to the meaning given to that term in Section 1798.140(v) of the California Civil Code and the California Consumer Privacy Act (“CCPA”). Influitive also certifies that it shall not sell a California consumer’s Personal Information for any reason. Customer shall display all privacy notices, have at all times all appropriate legal bases, and comply at all times with all applicable privacy and data protection laws and regulations regarding Influitive’s sub-processing of personal data (if any).
7.4 Additional Warranties. Influitive represents and warrants that: (i) the Services will be provided in a professional, timely and workman like manner by persons with the proper skill, training and background, and consistent with generally accepted industry standards; (ii) the Services will comply with all written specifications; (iii) the Services will be free of material defects; (iv) the Influitive technology shall not deliver any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate the contents of any databases and/or the normal operation of any computer systems (“Malicious Code”); (v) at the time of delivery, all Documentation required hereunder (if any) shall be complete so as to enable Customer personnel with ordinary skills and experience to utilize the Services for the purposes for which they are being acquired by Customer, (vi) it will at all times utilize reasonable and appropriate practices and technologies common and prevalent in Influitive’s industry to avoid causing damage to Customer’s computer systems or other technology.
7.5 Disclaimer. Except as expressly provided herein, Customer acknowledges and agrees that the Services are provided on an “As Is”, as available basis. Other than as expressly provided herein, INFLUITIVE DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. INFLUITIVE DOES NOT WARRANT THAT THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, INFLUITIVE DOES NOT WARRANT THAT ALL ERRORS IN THE SERVICES CAN BE CORRECTED.
9. LIMITATION OF LIABILITY
EXCEPT FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, (1) IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, (2) WITH RESPECT TO ANY SINGLE INCIDENT GIVING RISE TO LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.1 Influitive Indemnification. Influitive shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Services, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if Influitive reasonably believes that the Customer’s use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Influitive may, at its expense: (i) procure for the Customer the right to continue using the Services; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the Services as set out herein. Influitive shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Services with other equipment or software not supplied by Influitive or in a manner not consistent with Influitive’s instructions. THIS SECTION SETS FORTH INFLUITIVE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Customer Indemnification. Customer agrees to indemnify and hold Influitive harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Influitive by a third party arising from or relating to Customer’s use of the Customer Content or the Services in violation of this Agreement.
9.3 Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
10. GENERAL PROVISIONS
10.1 Publicity. Upon prior written consent from Customer, Influitive may use Customer’s name and logo on Influitive’s website, and as a part of a general list of customers for use and reference in corporate, promotional and marketing literature.
10.2 Assignment. Neither party shall assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of the other party, except to a party that acquires all or substantially all of the assigning party’s assets as part of a corporate reorganization, merger or acquisition provided that the assignee agrees to be bound by the terms of this Agreement and it is not a competitor of the non-assigning party. The Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
10.4 Amendments. No amendment, supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the Parties to be bound thereby.
10.5 Governing Law. 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.
10.6 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.
10.7 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.
10.8 Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement, due to any cause beyond its reasonable control provided that the delayed party (a) gives the other party prompt notice of such cause, and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
10.9 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. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall prevail.
10.20 Surviving Provisions. The sections titled “Fees” “Payment Terms,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” Surviving Provisions,” and “General Provisions” shall survive any termination or expiration of this Agreement.