Master Subscription Agreement
AUS Terms of Service
Thank you for visiting Involvio! These Terms of Use govern your use of the website located at www.involvio.com and our service offered through the Involvio app available for the Android and iOS operating systems (collectively, the "Site"). The Site is brought to you by Involvio LLC ("Involvio" or "us" or "we"). Please read these Terms of Use carefully before using the Site. By accessing the Site in any manner (whether automated or otherwise), you agree to be bound by these Terms of Use and any additional terms and conditions that are referenced below or otherwise may apply to specific areas of this Site.
We reserve the right to change these Terms of Use at any time. Such changes will be effective when posted, provided that we may only amend the alternative dispute, venue and time limit of claims provisions to the extent allowed by applicable law. By continuing to use the Site after we post any such changes, you accept the Terms of Use as modified.
Rules of Conduct
There are a few rules of conduct that you are required to follow when you use this Site:
- Do not "harvest" (or collect) information from the Site using an automated software tool or manually on a mass basis (unless we have given you separate written permission to do so). This includes, for example, information about other users of the Site or information about the offerings, products, services and promotions available on the Site.
- Do not use automated means to access the Site, or gain unauthorized access to the Site or to any account or computer system connected to the Site.
- Do not obtain, or attempt to obtain, access to areas of the Site or our systems that are not intended for access by you.
- Do not "flood" the Site with requests or otherwise overburden, disrupt or harm the Site or its systems.
- Do not circumvent or reverse engineer the Site or its systems.
- Do not restrict or inhibit another user or users from using and enjoying this Site.
- If you post something to this Site, such as comments or other content, do not post anything that:
- infringes any third party intellectual property right (such as copyrights),
- is defamatory (i.e., something that is negative and untrue about another person or entity),
- divulges another person's or entity's confidential or private information or trade secret,
- is fraudulent, hateful, unlawful, threatening, harassing, abusive, obscene, or discriminatory,
- encourages criminal conduct,
- advertises or solicits business for products or services other than those that are offered and promoted on this Site,
- harasses, harms or bullies another person,
- involves the transmission of "junk mail" or "SPAM" or other unsolicited mass mailings,
- impersonates another person, or
- contains any virus, malware, spyware or other harmful content or code.
You also must comply with all applicable laws and contractual obligations when you use this Site.
Ownership of Site Content and Submissions
We or our licensors or partners own the intellectual property rights in the content and materials displayed on this Site (collectively, "Involvio Content"). You may use this Site (including such Involvio Content) for your own personal, non-commercial use, but you may not use it for commercial purposes. You may not modify, copy, reproduce, republish, upload, post, transmit, translate, sell, create derivative works, exploit, or distribute in any manner or medium (including by email or other electronic means) any material from this Site unless explicitly authorized in these Terms of Use or by the owner of the materials. You may, however, from time to time, download and/or print one copy of individual pages of the Site for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices.
If you submit or post any materials or content to this Site, you grant us and our affiliates a royalty free, perpetual, irrevocable, transferrable, assignable, sub-licensable, worldwide licence to use such materials and content, including alterations thereof, for our business purposes, in any form, in any media, and via any technology we choose, whether it exists now or is created in the future. You represent that any materials and content posted or otherwise submitted by you to the Site is original to you and that you have the right to grant us these rights.
Responsibility for Public Postings and Content
Responsibility for what is posted in public areas of our Site lies with each user - you alone are responsible for the material you post or otherwise make available in public areas of our Site. You alone are responsible for assessing the credibility of other user postings. We do not control the material that you or others may post or otherwise make available in such areas, and you understand that we have no obligation to monitor any such material or to edit or delete it. However, we reserve the right do so, and may delete or modify any post or content you submit to the Site. We are not a publisher of user posts, and we are not responsible for their accuracy or legality.
You also understand and agree that any action or inaction by us or any of our directors, officers, stockholders, employees, consultants, agents or representatives (collectively, "Our Representatives") to prevent, restrict, redress or regulate content, or to implement other enforcement measures against any content, conduct or potential Terms of Use violation is undertaken voluntarily and in good faith, and you expressly agree that neither we nor any of Our Representatives shall be liable to you or anyone else for any action or inaction to prevent, restrict, redress, or regulate content, or to implement other enforcement measures against any content, conduct or potential violation of these Terms of Use.
Although Our Representatives may moderate content, conduct and Terms of Use compliance on our Site at our discretion, Our Representatives have no authority to make binding commitments, promises or representations to anyone that they or anyone else on our behalf will "take care" of any alleged problem or complaint, or that they or anyone else on our behalf will otherwise stop, cure or prevent any problem, content, conduct or purported Terms of Use violation from occurring or recurring. Accordingly, you further agree that any representation (written or verbal) by any of Our Representatives (or by anyone else acting on our behalf or by anyone purportedly acting on our behalf) that we (including but not limited to any of Our Representatives, anyone else acting on our behalf, or anyone purportedly acting on our behalf) would or would not prevent, restrict, redress or regulate content (including, without limitation, screen, block, moderate, review, remove, terminate, delete, edit or otherwise stop, cure or exclude any content), or to implement other enforcement measures against any content, conduct or potential or purported Terms of Use violation is superseded by this provision and is nonbinding and unenforceable. Specifically, you agree that we, Our Representatives and anyone else authorized to act on our behalf shall in no circumstance be liable as a result of any representation that we, Our Representative or anyone else on our behalf would or would not restrict or redress any content, conduct or potential or purported Terms of Use violation. This paragraph may not be modified, waived or released except by a written agreement, dated and signed by our Chief Executive Officer and dated and signed by the individual or entity to whom the modification, waiver or release is granted.
Site Registration and Log In
To access certain features or areas of this Site, you may be required to provide personal and/or demographic information as part of a Site registration or log-in process. In addition, certain features of our Site are only available to our registered users, and to access those areas of the Site you will be required to log in using your username and email password.
You agree to provide true, accurate, current and complete information about yourself as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up-to-date (this includes your contact information, so that we can reliably contact you). The information you submit must describe you (you may not impersonate another person or entity), and you may not sell, share or otherwise transfer your account information.
You are responsible for all activity occurring when this Site is accessed through your account, whether authorized by you or not. Therefore, if you create an account, be sure to protect the confidentiality of your account password. We are not liable for any loss or damage arising from your failure to protect your password or account information.
Electronic Communications
The communications between you and us via this Site use electronic means, whether you visit this Site or send us an email, or whether we post notices on this Site or communicate with you via email. For contractual purposes, you consent to receive communications from us in an electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights.
Copyright Infringement Notices
If you are a copyright owner who believes in good faith that your copyright material has been reproduced, posted or distributed on this Site in a manner that constitutes copyright infringement, please inform our designated copyright agent by sending written notice to Ari Winkleman, Involvio LLC, 261 Madison Ave, 9th Floor, New York, NY 10016, by fax to 917-793-0393, or by email to copyrightagent@involvio.com. Please include the following information in your written notice: (1) a detailed description of the copyright work that is allegedly infringed upon; (2) a description of the location of the allegedly infringing material on the Site; (3) your contact information, including your address, telephone number, and, if available, email address; (4) a statement by you indicating that you have a good-faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent, or the law; (5) a statement by you, made under penalty of perjury, affirming that the information in your notice is accurate and that you are authorized to act on the copyright owner's behalf; and (6) an electronic or physical signature of the copyright owner or someone authorized on the owner's behalf to assert infringement of copyright and to submit the statement. Please note that the contact information provided in this paragraph is for suspected copyright infringement only. Contact information for other matters is provided elsewhere in these Terms of Use or on the Site.
Changes to This Site
We reserve the right to make changes to, or to suspend or discontinue (temporarily or permanently), this Site or any portion of this Site. You agree that we will not be liable to you or to any third party for any such modification, suspension or discontinuance.
Suspension or Termination of Access
We have the right to deny access to, and to suspend or terminate your access to, the Site, or to any features or portions of the Site, and to remove and discard any content or materials you have submitted to the Site, at any time and for any reason, including for any violation by you of these Terms of Use. In addition, we have a policy of terminating the Site usage permissions of users who are repeat infringers of intellectual property rights. In the event that we suspend or terminate your access to and/or use of the Site, you will continue to be bound by the Terms of Use that were in effect as of the date of your suspension or termination.
Linking Policies
This Site may contain links to other websites or to third party sellers of products and services. Such links are provided for your convenience only, and you access them at your own risk. We are not responsible for, and do not endorse, the content of any such Sites, or the products and services sold on them, nor do we take responsibility for the accuracy of any such Sites. When you visit a linked Site you should read the terms of use and privacy policy that govern that particular linked Site.
Indemnification
You agree to indemnify, defend and hold us and our affiliates, and our respective directors, officers, employees and agents, harmless from and against any claims, liabilities, losses, damages, costs and expenses, including reasonable legal fees, arising from your use of this Site, your submissions to this Site, or any violation of these Terms of Use, or applicable law, by you or by someone accessing the Site via your account. We reserve the right, at our own expense, to assume the exclusive defence and control of any matter subject to indemnification by you, in which event you agree to cooperate with us in defending such claims. This indemnification, defence and hold harmless obligation will survive these Terms of Use and the termination of your use of this Site.
Applicable Law; No Waiver; Severability
These Terms of Use, and the relationship between you and us, will be governed by the laws of New South Wales, without giving effect to any principles of conflicts of law. Our failure to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, you and we nevertheless agree that the court should endeavor to give effect to intentions as reflected in the provision, and the other provisions of these terms and conditions will remain in full force and effect.
Severability. If any clause within this Section (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section, and the remainder of this Section will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section will be unenforceable, and the Dispute will be decided by a court and you and the entity you have a dispute with each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
Continuation. This Section shall survive any termination of this Terms of Use or the provision of the associated services to you.
Governing Jurisdiction
Disputes will be litigated by either party in a court of competent jurisdiction only in New South Wales. Each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Terms of Use in any other court or forum. Each Party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Terms of Use in a court of competent jurisdiction in New South Wales, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.
Disclaimer of Warranties
THIS SITE AND THE INVOLVIO CONTENT AND SERVICES ARE PROVIDED FOR INFORMATIONAL AND PROMOTIONAL PURPOSES. WE PROVIDE THIS SITE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED, OTHER THAN THOSE IMPLIED BY LAW. THIS MEANS THAT WE MAKE NO PROMISES THAT:
- THE SITE WILL BE AVAILABLE AT ANY PARTICULAR TIME,
- THE SITE WILL MEET ANY PARTICULAR REQUIREMENTS OR PROVIDE ANY PARTICULAR RESULTS,
- THE INFORMATION ON THE SITE WILL BE ACCURATE OR UP-TO-DATE,
- THE SITE OR THE INFORMATION TRANSMITTED TO OR FROM IT OR STORED ON IT WILL BE SECURE FROM UNAUTHORIZED ACCESS,
- INFORMATION AND MATERIALS THAT YOU STORE IN YOUR ACCOUNT OR ON THIS SITE WILL REMAIN RETREIVABLE AND UNCORRUPTED (UNLESS WE PROMISE THIS IN A SEPARATE AGREEMENT WITH YOU), OR
- THE SITE WILL BE UNITERRUPTED OR ERROR-FREE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED.
YOU AGREE THAT USE OF THIS SITE IS AT YOUR OWN RISK. ALTHOUGH WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THIS SITE IS ACCURATE AND UP-TO-DATE, WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION AT ANY TIME. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, TIMELINESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THIS SITE, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THIS SITE. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS, SUPPORT DOCUMENTATION, BY OUR CUSTOMER SERVICE AND SUPPORT AGENTS, AND OTHERWISE ON THE SITE OR IN CORRESPONDENCE WITH US OR OUR AGENTS. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR MATERIALS POSTED TO OUR SITE BY USERS, NOR FOR DISPUTES BETWEEN USERS, OR BETWEEN USERS AND THIRD PARTIES.
THESE DISCLAIMERS APPLY TO US AND OUR AFFILIATED AND RELATED COMPANIES AS WELL AS THIRD PARTIES THAT ARE INVOLVED IN THE CREATION, PRODUCTION OR DISTRIBUTION OF THE SITE, AND ANY OF THEIR EMPLOYEES AND AGENTS.
Limitations of Liability
IF YOU ARE DISSATISFIED WITH THIS SITE, OR ANY MATERIALS, PRODUCTS, OR SERVICES ON THIS SITE, OR WITH ANY OF THE SITE'S TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.
IN NO EVENT WILL WE OR ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES) ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THIS SITE (OR THE CONTENT, MATERIALS AND FUNCTIONS PROVIDED AS PART OF THIS SITE), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR STRICT LIABILITY, EVEN IF WE KNEW, SHOULD HAVE KNOWN OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING AND WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, AND OF ANY OF OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM IN ANY WAY RELATING TO THE USE OF THIS SITE, WILL NOT EXCEED $500. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY AND THE LIABILITY OF OUR AFFILIATES, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTENT OR SERVICE PROVIDERS, IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.)
Other
These Terms of Use, together with any additional terms and conditions that are referenced herein or otherwise may apply to specific areas of this Site, constitute the entire agreement between us and you with respect to this Site. This agreement is personal to you and you may not assign it to anyone.
If any provision of these Terms of Use is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms of Use and will not affect the validity and enforceability of any remaining provisions. These Terms of Use are not intended to benefit any third party, and do not create any third party beneficiaries. Accordingly, these Terms of Use may only be invoked or enforced by you or us.
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO USE OF THIS SITE, OR THESE TERMS OF USE, MUST BE FILED BY YOU WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ACCRUED OR BE PERMANENTLY BARRED.
Questions about these Terms of Use can be sent to: hello@involvio.com
Last Updated: 17 December 2018
This Master Subscription Agreement (together with any schedules and the Order Form to which it is attached, the “Agreement”) is made and entered by and between Involvio LLC (“Involvio”) and the customer set forth on the applicable Order Form (“Customer”), effective as of the date set forth on the applicable Order Form (such date, the “Effective Date”). Each of Involvio and Customer may be referred to herein as a “Party” and, collectively, the “Parties”.
1. License
1.1. License. Subject to the terms and conditions of this Agreement, Involvio hereby grants to Customer a non-exclusive, non-transferable, non-assignable license to access and use the Involvio Service for its internal business purposes during the Term. Customer agrees to use the Involvio Service in accordance with this Agreement and applicable law. For purposes of this Agreement, “Involvio Service” shall mean the Involvio software and related services available at involvio.com and through Involvio’s mobile applications, including the administrative tools therein accessed through Customer’s Admin login.
1.2. Restrictions. Except as expressly permitted herein or as otherwise authorized by Involvio in writing, Customer shall not (i) modify, adapt, alter, translate, or create derivative works from the Involvio Service; (ii) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Involvio Service to any third party, or (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Involvio Service.
1.3. IP Ownership. Involvio shall retain sole and exclusive ownership of rights, title and interest in the Involvio Service, including all intellectual property rights therein. Customer acquires no rights in the Involvio Service other than those specified in this Agreement.
2. Data & confidentiality
2.1. Data ownership. Customer owns all right, title and interest in all data uploaded by Customer through the Involvio Service (as further described in Section 2.4, “Event Data”). Involvio is not responsible for the Event Data provided by the Customer, and Customer assumes all responsibility for the accuracy, integrity, legality and intellectual property ownership of the Event Data. Further, Customer represents and warrants that it has obtained all rights, permissions and consents necessary to use and transfer the Event Data as contemplated in this Agreement.
2.2. Data License to Involvio. Customer hereby grants to Involvio a non- exclusive, irrevocable, worldwide, perpetual, royalty-free, license and right to access and use the Event Data in order to (i) perform its obligations under this Agreement; (ii) to improve the Involvio Service; and (iii) to copy, compile, analyze, display and use the Event Data on an aggregate, de-identified basis for Involvio’s sales, business and marketing purposes (such aggregate data, the “Aggregate Data”). Involvio will own all right, title and interest in the Aggregate Data. For the sake of clarity, Aggregate Data will not contain any personally identifiable information provided by Customer under this Agreement or through the Involvio Service.
2.3. Customer Material License. During the course of using the Services, Customer may provide Involvio with certain materials and/or content for use in connection with the Services, including any logos or images (collectively, “Customer Materials”). Customer hereby grants Involvio a non-exclusive, worldwide, royalty- free license and right, during the Term, to use such Customer Materials in connection with providing the Services hereunder. Customer hereby represents and warrants to Involvio that it has the necessary rights and consents to provide such Customer Materials to Involvio and to grant the license contained in this Section 2.3.
2.4. Student Data. Customer acknowledges that the Event Data may contain certain data and information, including Personal Information, regarding current, prospective or former students of Customer (each, a “Student” and all such data and information, collectively, “Student Data”). As used herein “Personal Information” means personally identifiable information regarding an individual, which information may include, without limitation name, address, other contact information, email address, date of birth, password, student ID number, attendance data, class year, class schedule, areas of study, club memberships or affiliations, other account information and/or account activity information, other information or data that can be used for identity theft (including that which is not personally identifiable) and other sensitive information regarding such individual.
2.5. Confidentiality. Each Party agrees that it will not disclose to others, use for their own benefit or for the benefit of anyone other than the other Party, any Confidential Information of the other Party except as (i) permitted under this Agreement; (ii) necessary to fulfill such receiving Party’s obligations under this Agreement; and (iii) as required to comply with applicable law or court order. “Confidential Information” shall include, without limitation, any information which is marked as confidential and any information that should be reasonably known to the receiving Party to be confidential due to its nature or intent. Involvio’s Confidential Information shall include the Involvio Services.
2.6. Disclaimer. Customer acknowledges and agrees that, as between the Parties, Customer shall be solely responsible for all use of the Event Data, including Student Data, by or on behalf of itself and its authorized agents, contractors, consultants and employees (collectively, “Customer Agents”), including any other consultants engaged by Customer, regardless of whether any such Customer Agents may also have a contractual relationship with Involvio. Customer shall indemnify and hold harmless Involvio, and its agents, contractors, consultants, employees and officers, from and against any and all damages, losses, costs, liabilities or expenses, including reasonable attorneys’ fees, arising out of any claim relating to any use of Event Data or Student Data by any Customer Agent.
3. Customer Responsibilities.
3.1. Branded Services. To the extent that Customer’s Order Form includes a subscription for “Branded Services”, Customer acknowledges that Involvio’s performance of the Branded Services is dependent upon Customer’s timely and effective satisfaction of the Customer responsibilities as set forth herein or in any Order Form (the “Customer Responsibilities”). Customer shall promptly provide to Involvio all Customer Materials requested by Involvio in order to provide the Branded Services. Customer acknowledges that (i) any failure by Customer to timely perform the Customer Responsibilities may result in a delay of the delivery of the Involvio Services by Involvio and (ii) Involvio shall not be responsible for any such delays.
3.1. Labs Program. To the extent that Customer is selected to participate in a beta testing program for certain Involvio products and services (each, a “Labs Program”) and Customer accepts such invitation, Customer agrees to comply with all reasonable instructions and requests of Involvio related to such Lab Program, including that: (i) Customer shall designate a primary point of contact with Involvio who shall have the primary responsibility for the administration of the Labs Program for Customer; (ii) Customer shall provide regular feedback (“Customer Feedback”) regarding the Involvio products and services that are the subject of the Labs Program on a monthly basis or such other time periods as may be reasonably requested by Involvio; (iii) Customer shall provide reasonable cooperation and assistance to Involvio with respect to the integration of the applicable Involvio products or services with Customer’s systems and databases; and (iv) Customer hereby perpetually and irrevocably assigns to Involvio all right, title and interest in and to Customer Feedback and all related intellectual property rights in and to the Customer Feedback. In addition, Customer acknowledges that all products and services provided to Customer through the Labs Program are intended for evaluation and testing purposes only and not for commercial use. Any such use is at Customer’s own risk and all such products and services are provided “as-is” without warranty of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a non-particular purpose, and infringement. Specifically, Involvio makes no warranty that (i) the applicable product or service will meet Customer requirements; (ii) Customer use of the Labs Program will be timely, uninterrupted, secure, or error-free; (iii) any information obtained by Customer as a result of the Labs Program will be accurate or reliable; and (iv) any defects or errors in Labs Program will be corrected. Notwithstanding anything to the contrary in this Agreement, Involvio will have no liability, including with respect to indemnification obligations, under this Agreement arising out of or related to any Involvio products and services used by Customer involved in the Labs Program.
4. Fees
Customer shall pay to Involvio the fees set forth on the Order Form (the “Fees”). The Fees shall be payable by Customer within thirty (30) days of receiving an invoice from Involvio. If Customer does not pay the invoice within the thirty (30) day period, then Involvio shall have the right to charge Customer a fee of the greater of (i) one and one-half percent (1.5%) per month until paid and (ii) the highest rate allowed by applicable law.
5. Term and Termination
5.1. Term. The term of this Agreement is as stated on the Order Form. AUTOMATIC RENEWAL. EXCEPT AS OTHERWISE SPECIFIED IN THE APPLICABLE ORDER FORM, ALL CONTRACT TERMS SHALL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS EQUAL IN DURATION TO THE EXPIRING CONTRACT TERM OR ONE YEAR (WHICHEVER IS SHORTER), UNLESS EITHER PARTY GIVES THE OTHER NOTICE OF NON-RENEWAL AT LEAST NINETY (90) DAYS BEFORE THE END OF THE RELEVANT CONTRACT TERM.
5.2. Termination. Either Party may terminate this Agreement if the other Party commits a material breach of this Agreement and such breach is not cured within thirty (30) days following written notice of such material breach by the non- breaching Party to the breaching Party. Sections 1.2, 1.3, 2.1, 2.2, 2.4, 4, 5.2, 6, 7, 8, and 9 survive the termination of this Agreement.
5.3. Suspension of Services. Involvio may suspend Customer’s access to the Involvio Service immediately if (i) Customer’s non-payment of Fees due hereunder; (ii) Customer’s use of the Involvio Service is, in Involvio’s reasonable judgment, violating applicable law or is otherwise detrimental to Involvio or the Involvio Service; and (iii) in Involvio’s reasonable judgment, the Involvio Service or any component thereof suffered, or is about to suffer, a significant threat to security or functionality. Involvio will provide advance notice to Customer regarding any such suspension when, in Involvio’s sole discretion, reasonable based on the nature of the circumstances. Involvio may monitor or audit Customer’s use of the Involvio Services to ensure that Customer is complying with this Agreement.
6. Disclaimer
THE INVOLVIO SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES, CLAIMS OR REPRESENTATIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. INVOLVIO DOES NOT WARRANT THAT THE INVOLVIO SERVICES WILL BE ERROR-FREE OR THAT CUSTOMER’S ACCESS TO THE INVOLVIO SOFTWARE AND RELATED SERVICES WILL BE UNINTERRUPTED.
7. Indemnities
7.1. Involvio indemnity. Involvio shall, at its own expense, indemnify, defend and hold harmless Customer from and against all loses, costs and liabilities, including reasonable attorneys’ fees (collectively, “Losses”), arising out of or related to any third party claim made or suit or proceeding brought against Customer alleging that the Involvio Service infringes any duly issued U.S. patent, copyright, trademark or other intellectual property right. The foregoing states the sole and exclusive liability of Involvio and the sole and exclusive remedy of Customer for intellectual property infringement claims.
7.2. Customer indemnity. Customer shall, at its own expense, indemnify, defend and hold harmless Involvio against all Losses arising out of a third party claim arising out of or related to (i) Customer’s use of the Involvio Service in violation of this Agreement or in violation of law; (ii) the Event Data or Customer Materials; and (iii) Customer’s breach of this Agreement.
8. Limitation of Liability
IN NO EVENT SHALL (I) INVOLVIO BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE FOR ANY INDIRECT, INDICENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMIT A TION, LOSS OF PROFITS, LOSS OF DATA, OR COST OF SUBSTITUTE GOODS AND SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE INVOLVIO SERVICES, EVEN IF INVOLVIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) INVOLVIO’S TOTAL AGGREGATE LIABILITY TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL EXCEED THE AMOUNTS PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
9. Miscellaneous
9.1. Notices. All notices, requests or communications to be given under this Agreement shall be in writing and shall be deemed duly given and served when delivered in person, by United States mail, postage prepaid, or by prepaid overnight courier service to the addresses set forth in the introductory paragraph.
9.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (except that any conflicts-of-law principles of such state that would result in the application of the law of another jurisdiction shall be disregarded). Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the State of New York. Each Party submits to the exclusive jurisdiction of the courts in the State of New York and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum.
9.3. Waiver. No waiver, alteration or modification of any of the provisions of this Agreement shall be binding unless made in writing and signed by each of the Parties hereto. If either Party fails to enforce any term of this Agreement or fails to exercise any remedy, such failure to enforce or exercise on that occasion shall not prevent enforcement or exercise on any other occasion.
9.4. Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations (except payment obligations) hereunder to the extent such failure or delay in performance is a result of an act of God, act of government, flood, fire, earthquake, civil unrest, internet delay, failure of a computer system or network, or act of terror, but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes.
9.5. No Agency. The Parties agree that, in the performance of this Agreement they are and shall be independent contractors. Nothing herein shall be construed to constitute either Party as the agent of the other Party for any purpose whatsoever, and neither Party shall bind or attempt to bind the other Party to any contract or the performance of any obligation or represent to any third party that it has any right to enter into any binding obligation on the other Party’s behalf. Notwithstanding the foregoing, Customer agrees that Involvio can, and hereby grants Involvio the right to, reference Customer as a customer of Involvio and as a user of the Involvio Service, in each case, in connection with Involvio’s marketing efforts.
9.6. Assignment. Involvio may freely assign this Agreement. Customer may not, without the prior written consent of Involvio (which shall not be unreasonably withheld), assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void.
9.7. Severability. If any provision of this Agreement is held invalid by any law, rule, order, or regulation of any government or by the final determination of any court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions and such provisions shall be interpreted so as to best accomplish the objectives of such invalid provisions within the limits of applicable law or applicable court decision.
9.8. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties, and supersedes all prior agreements, proposals, negotiations and communications between the parties, both oral and written, regarding the subject matter hereof.
9.9. Authority. Customer hereby represents and warrants that it has and shall have the full legal right and corporate power and authority to enter into and perform all of its obligations under this Agreement and to comply with all terms and conditions of this Agreement.
9.10. Website Terms. In addition to the terms and conditions of this Agreement, Customer’s access to and use of the Involvio services shall be in accordance with any “Terms of Use” contained thereon, as amended or supplemented from time to time; provided, however, that to the extent any terms in such “Terms of Use” are inconsistent with or conflict with the terms and conditions of this Agreement with regard to the access and use of Services, the terms and conditions of this Agreement shall prevail unless specifically indicated otherwise.
9.11. Counterparts: The Order Form may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same.
This Agreement was last updated on November 9, 2020. It is effective between Customer and Involvio as of the date Customer accepts this Agreement, or upon an update of this Agreement by Involvio in accordance with the terms set forth herein.
