Terms of Service
Version 2 Date: May 22, 2016
Terms of Service
Acceptance of terms
1.1 By accessing the IMPRAISE Inc “IMPRAISE” website located at http://www.impraise.com and/or https://app.impraise.com and/or downloading the iPhone app located at https://itunes.apple.com/us/app/impraise/id910151351?mt=8 and/or downloading the Android app located athttps://play.google.com/store/apps/details?id=com.impraise&hl=en, the user “You” (from now on referred as “Client”) agree to be bound by these Terms Of Service ("TOS").
1.2 Client may access the Service as either an individual or on behalf of a company. If Client is signing up for the Service on behalf of a company, Client represent and warrants that Client is duly authorized to represent the company and that Client accepts the TOS on behalf of the company.
1.3 The TOS may be revised or modified from time to time and all subscription renewals will be subject to the TOS in effect at the time of the renewal. Your invoice will indicate the TOS version number that applies to your order. You may review the most current version of the TOS at any time at: http://www.impraise.com/terms.
It is hereby agreed as follows:
"Agreement": this Agreement including all schedules, Order Form(s), appendices and annexes thereto.
"Account owner" refers to the person at Clients organization that is responsible for the payment of Providers Service.
"Affiliate" means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, "control" means the power to direct the management or affairs of an entity, and "ownership" means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of the entity.
"Authorized Users" Client's employees authorized by the Client to use the Services as specified in the the Order Form.
"Client Data" means any data that is provided by Client to Provider (including through the Service) or accessed or processed by Provider on behalf of Client, including any Personal Data and excluding the Deliverables.
"Client Systems" means any software, hardware, or systems of Client or its Affiliates or contractors.
"Confidential Information": information regarding either party's products or services, including but not limited to the Services, documentation, software, trade secrets embodied therein and any other written or electronic information that is either (i) marked as confidential and/or proprietary, or which is accompanied by written notice that such information is confidential and/or proprietary, or (ii) not marked or accompanied by notice that it is confidential and/or proprietary but which, if disclosed to any third party, could reasonably and foreseeably cause competitive harm to the owner of such information. Confidential Information shall not include information which, as demonstrated by the receiving party, is: (i) publicly available, (ii) lawfully obtained by a party from third parties without restrictions on disclosure, or (iii) independently developed by a party without reference to or use of Confidential Information.
"Deliverables": the deliverables relating to the Services to be provided by Provider under the Agreement.
"Force Majeure" means any events or circumstances, or any combination of such events or circumstances, which are not attributable to Provider, including but not limited to malfunctions of the internet or other telecommunications facilities, failures by (third) parties on which Provider depends when providing the Services, the defective condition of items, equipment, software, Client Data, or other materials which the Client has instructed Provider to use and/or the non-availability of one or more members of staff (due to illness, strikes or otherwise).
"Intellectual Property Rights": any and all, rights, titles and interests associated with any copyrights, works, inventions, patents, utility models, trademarks, trademark registrations, trade names, service marks, trade secrets, know-how, technology, discoveries, improvements, processes, techniques, software, code, data (including all associated inchoate rights), whether or not patentable, and any ancillary, corresponding, continuation derivative work, improvement, modification, update, upgrade or enhancement of any of the foregoing.
"Order Form" means each order form referencing this Agreement. Each Order Form will be incorporated into this Agreement upon mutual execution by the parties
"Personal Data": any information relating to an identified or identifiable natural person.
"Service" means the hosted service described in the applicable Order Form offered through the Software.
"Setup Service" means implementation or customization services for the Service.
"Software": the software, software application(s), and all materials related to such applications owned by Provider and accessible by the Client through the internet or other means of access designated by Provider in connection with the Service.
"Subscription Charges" means the charges that are related to a specific Subscription Term set forth in the applicable Order Form.
"Subscription Upgrade" means an upgrade of Client's Service Plan or increase of the number of authorized user accounts during Clients Subscription Term.
"Subscription Term": the subscription term to the Service specified in the applicable Order Form.
"Term": the term commencing on the Effective Date and in force until expiration or termination of the last Subscription Term.
"Taxes": any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction.
Provision, access and use of the service
Client will receive a subscription to the Service for the Subscription Term. Provider grants Client a limited, non-transferable, non-exclusive right to access and use Provider's Software in connection with the Service worldwide for Client's internal business use only.
During each Subscription Term, Provider will provide the Service in accordance with this Agreement (including the descriptions in each Order Form and the Service Levels). Nothing in this agreement obligates Provider and its Affiliates to deliver or make available any copies of computer programs or code from the Software to Client, whether in object code or source code form.
Client will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations.
In relation to the Authorized Users, the Client shall ensure that:
the maximum number of users that access or use the Service, shall not exceed the number of Authorised Users, as specified in the Order Form;
it will not allow an Authorized User subscription to be used by more than one individual;
insofar applicable, each Authorized User shall keep a secure password for his use of the Service, that such password shall be changed no less frequently than 12 months and that each Authorized User shall keep his/her password confidential;
it shall maintain a written, up to date list of current Authorized Users and provide such list to Provider within 10 business days of Provider’s written request at any time;
Provider shall use its best efforts to provide the Service in accordance with the Service Levels.
Unless otherwise specified in the applicable Order Form, Provider will provide Client, at no additional charge, with technical support services for the Service on the same basis as it provides such services to similarly situated Clients.
Provider will perform Setup Services as specified in an Order Form. Setup Services and any associated deliverables are deemed included in the Subscription Charges, unless the Client terminates an Order Form prior to expiration of a Subscription Term and other than for Provider's material breach of the Agreement.
Provider reserves the right, in its reasonable discretion, to temporarily suspend Client's access to and use of the Service:
during planned downtime for upgrades and maintenance to the Service (of which Provider will use commercially reasonable efforts to notify Client in advance both through Provider's forum page and a notice to Client's Account owner and Agents). Provider will use commercially reasonable efforts to schedule planned downtime for weekends (Eastern Time) and other off-peak hours.
in case of occurrence of a Force Majeure Event;
if Provider suspects or detects any malicious software connected to Client's Account or use of the Service by the Client or its Authorized Users;
if the Client breaches this Agreement and such breach is not cured within fourteen (14) business days commencing on the date of a written notice of default.
The Service is subject to change at any time with and without prior notification.
Client will not:
copy, reproduce, alter, modify, or create derivative works from the Software and/or Service;
license, sublicense, sell, resell, rent, lease, distribute, transfer, time share, assign or resell the Software and/or Service, or use the Software and/or Service as the basis for developing a competitive solution (or contract with a third party to do so); or
remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Service.
Client will not nor will Client authorize or encourage any third party to:
use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by Provider; or
use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service.
Provision of deliverables
Provider shall provide the Deliverables to Client in accordance with the Agreement. Provider shall provide all Deliverables on the basis of commercially reasonable efforts, unless explicitly specified otherwise in the applicable Order Form(s).
Delivery dates provided by Provider or stipulated in the Order Form regarding Deliverables are purely indicative. Delivery dates shall depend on a number of factors and circumstances, such as the Client’s efforts to fulfil its obligations, the quality of the Client's Data and the cooperation of the Client.
The Client is obliged to facilitate the performance of the Service by Provider. If Provider is providing the Service on the basis of information to be provided by the Client, including but not limited to Client Data, this information shall be prepared by the Client in accordance with the conditions to be imposed by Provider. Such information shall be provided at the risk, responsibility and expense of the Client.
If the Client fails to provide the required information in accordance with section 5.1 above, it is possible that the execution of the Service will be delayed.
Subscription charges and payment
Unless otherwise indicated on the Order Form referencing these Subscription Terms and subject to Section 6.2, all Subscription Charges are due in full upon commencement of the Subscription Term. Subscription Charges are subject to change by Provider at any time without notice to the Client. Any increase in the Subscription Charges will take effect upon renewal(s) of a Subscription Term.
If Client opts for a Subscription Upgrade, any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Client's then current Subscription Term, charged to Clients with equivalent payment method as used by client before and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Client's Subscription Charges will reflect any such Subscription Upgrades.
No refunds or credits for Subscription Charges or other fees or payments will be provided to Client if Client elect to downgrade its Service Plan. Downgrading a Service Plan may cause loss of content, features, or capacity of the Service as available to Client under Client's Account, and Provider does not accept any liability for such loss.
Unless otherwise stated, Providers charges do not include any Taxes. Client is responsible for paying Taxes except those assessable against Provider based on its income. Provider will invoice Client for such Taxes if Provider believes to have a legal obligation to do so and Client agrees to pay such Taxes if so invoiced.
Unless otherwise indicated on the Order Form, no refunds or credits for Subscription Charges or other fees or payments will be provided to Client if Client elects to terminate an Order Form prior to the end of Clients' then effective Subscription Term. If Client terminates an Order Form prior to the end of Clients' then effective Subscription Term, in addition to other amounts Client may owe to Provider, Client shall immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by Client in the event Client terminates its subscription to the Service as a result of a material breach of this Agreement by Provider, provided that Client provides advance notice of such breach to Provider and this breach is not reasonably remedied by Provider within (30) days after receipt of this notice.
Unless otherwise indicated on the Order Form, Provider may at any time, upon thirty day (30) written notice, change the Subscription Charges or any part thereof, or institute new charges or fees. Changes to Subscription Charge and/or new charges implemented during Clients one year subscription period will be effective as of the start of any renewal terms. If Client does not agree to any such price changes, Provider shall not agree to a renewal of the involved Subscription Term.
Term and termination
This Agreement is a framework agreement which governs all applicable Order Form(s). This Agreement commences on the Effective Date and shall be in force during the Term.
Unless earlier terminated, Clients' Subscription Term will renew for a term equivalent in length to the then expiring Subscription Term.
Either Client or Provider may elect to terminate an Order Form as of the end of Clients' then current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term.
Provider may terminate the Agreement and/or any Order Form(s) at any time, without payment of compensation, and without notice if any of the following events occur:
a request is made or a petition is filed for Client's bankruptcy (faillissement) or Client is granted a suspension of payments (surséance van betaling) or becomes subject to other insolvency proceedings;
Company is dissolved (ontbonden), liquidates its business or otherwise terminates or suspends its business activities;
Company breaches this Agreement and such breach is not cured within twenty (20) business days commencing on the date of a written notice of default;
Upon any termination or expiration of this Agreement:
each party (as recipient) will return the other party's Confidential Information or destroy it and certify destruction;
all other provisions will not survive.
Provider is an independent contractor of Client, and not an employee, partner, agent or joint venture partner. Provider is solely responsible and liable for its own taxes, insurance premiums and employment benefits. No Provider employee is eligible for any benefits (including stock options, health insurance or retirement benefits) provided by Client to its employees. Provider will not make any commitment binding on Client or represent that it has authority to do so.
Client acknowledges that Provider owns all right, title and interest in and to the Software, the Service and/or the Deliverables and any modifications and enhancements thereof, including without limitation all Intellectual Property Rights, and such rights are protected by amongst others U.S., European and international intellectual property laws.
Provider grants Client a non-exclusive, perpetual and non-transferable right to use the Deliverables, solely for Client’s internal business operations, unless specified otherwise in the applicable Order Form(s).
Provider acknowledges that Client owns all right, title and interest (including all Intellectual Property Rights) in and to the Client Data provided to the Provider.
Parties shall process the personal data they obtain as part of the performance of this Agreement in accordance with the applicable privacy laws.
Provider may use Client Data solely to the extent necessary to provide the Service to Client and for no other purpose. Except as may be expressly stated in the applicable Order Form, Provider will not sell, disclose, or share any Client Data (or any part or derivative thereof) with anyone else, unless Client Data is used in an anonymous and aggregate manner (“Aggregated Data”), provided that such Aggregated Data (a) can in no way be directly or indirectly linked specifically to Client, Client’s employees or customers or any other individual or entity (including their respective computers or devices) and (b) does not include Confidential Information of Client. Provider shall have the right to use such Aggregated Data solely for the purposes of (a) improving the Service and (b) publishing performance statistics related to the Service for its marketing purposes. Client acknowledges and agrees that the Aggregated Data is owned exclusively by Provider. Provider will implement and maintain industry best-practice information security policies and processes (including technical, administrative and physical safeguards) that prevent unauthorized access to or use or disclosure of the Service or any Client Data.
In the event of a Security Breach, Provider will notify Client promptly in writing but not to exceed twenty-four (24) hours, upon discovery of any suspected or actual breach or compromise of any Client Data’s security or confidentiality. This notification will describe the breach, the status of Provider’s investigation, and, if applicable, the potential number of persons affected. Provider will be solely responsible for all costs associated with any security breach (including, if applicable, for notices to and credit monitoring for affected individuals).
The parties shall comply with the Security Policy as set forth in Exhibit C which is deemed included in this section 10.
During the Subscription Term and for three (3) months thereafter, at Client's request, Provider will provide a file of all Client Data in a standard format specified by Provider. Thereafter, unless legally prohibited, Provider will delete all Client Data in its possession or control.
Client agrees that Provider and its service providers it utilizes to assist in providing the Service to Client shall have the right to access Clients Account and to use, modify, reproduce, distribute, display and disclose Clients Data solely to the extent necessary to provide the Service, including, without limitation, in response to Clients support requests. Any third party service providers utilized by the Provider will only be given access to Clients' Account and Clients' Data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations.
Limitation of Liability
Client acknowledges that, the Service, as an internet-delivered software application, may experience periods of downtime, including but not limited to scheduled maintenance. Provider makes no representations or warranties, whether express, implied or statutory, with respect to the Services provided hereunder, including the Service and any documentation, content, data and materials made available with the Services. Provider specifically disclaims any implied warranties of merchantability, fitness for a particular purpose, non-infringements, and accuracy. Provider does not warrant that the Service will be error-free or operate without interruptions or downtime, or that the results obtained from the Services will meet Client’s needs.
Provider will not be liable for any use of the Service and/or Deliverables, and will not be liable for any incidental, consequential, special, indirect, or punitive damages in connection with any claim of any nature arising under the Agreement. In addition, Provider’s aggregate liability for all claims of any nature arising out of the Agreement will not exceed 10% of the total amount of fees specified in the applicable Order Form(s) pertaining to active Subcription Term(s) in force at the moment of occurence of the event giving rise to the claim per event, a series of events beign considered as one single event. This limitation of liability shall not apply to damages arising from wilful intent or gross negligence from the side of Provider ("opzet of bewuste roekeloosheid").
Client agrees to hold harmless and indemnify Provider, and its affiliates, management, officers, agents, subcontractors and employees from and against any third party claim arising from or in any way related to Clients', including its affiliates, management, officers, agents, subcontractors and employees, and or other person's use of the Service and/or Deliverables, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature.
Provider shall indemnify the Client against any liability, damage, expense, claim or cost suffered by the Client arising from any: (a) breach of 10 (data protection); and/or (b) breach of clause 12 (Confidential Information), provided that Provider's indemnity and liability will not exceed the amount set forth in section 11.2.
Parties shall keep Confidential Information about the other Party strictly confidential. Each party shall not in any way disclose to anyone any Confidential Information about the other party, including (but not limited to) any information about any Services, the provision of the Services, any activity, financial matter, business plan, intellectual property right, information system, working method, employee and supplier relating to the Services. Clause 12.1 is not applicable if and insofar as:
A party is obliged by law to disclose such information, in which event any party so obliged shall consult with the other party about how this will be effected; or
A party has obtained the other party's prior written consent, which shall not be unreasonably withheld.
Provider shall not use Deliverables to the extent these reveal any of Clients Confidential Information.
Provider shall not be liable for any non-performance of its obligations pursuant to the Agreement, if such non-performance is caused by a Force Majeure Event. In case of a Force Majeure Event, Provider has the right to suspend the execution or further execution of the Service.
Client agrees that Provider may disclose the fact that Client is Providers' Client. During the Term of this Agreement, and unless agreed in writing otherwise, Client grants Provider the right to reference Clients company name, along with Clients' logo, in marketing materials and on Providers public website until such time as Clients use of the Service is discontinued.
The Client agrees to cooperate with and issuance of a press-release on or after the Effective Date.
The rights and obligations of a party under this Agreement cannot be assigned or transferred except with the prior written approval of the other party.
Unless provided otherwise in this Agreement, the parties shall each pay their own costs, charges and expenses in relation to this Agreement.
This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior agreements, arrangements, undertakings or statements regarding such subject matter.
Any variation of this Agreement is not valid unless and until it is in writing and has been signed by or on behalf of the parties.
If a provision of this Agreement is or becomes invalid or non-binding, the parties shall remain bound to the remaining provisions. In that event, the parties shall replace the invalid or non-binding provision by provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.
Governing law and jurisdiction
This Agreement is governed by and shall be construed in accordance with the laws of the Netherlands.
Any dispute arising out of or in connection with this Agreement shall be submitted exclusively to the competent courts in Amsterdam, the Netherlands, notwithstanding the right of appeal.