This Master Subscription Agreement (“Agreement”) is entered into by and between InXero, Inc., (“InXero”) a Delaware corporation, having its principal place of business at 3925 West Braker Lane, Austin, Texas 78759 and the organization submitting this Agreement to InXero (“Client”). The person entering into this agreement on behalf of Client represents and warrants that he or she has the actual authority to bind such organization and its affiliates to the terms and conditions of this Agreement. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Services. InXero and Client are the only parties to this Agreement. At the time of subscription, Client will be given the opportunity either to disagree with the terms of this Agreement and exit without obligation, or to agree to be bound by the terms of this Agreement by providing an online acceptance which will serve as Client’s electronic signature. This Agreement shall be effective as of the date that InXero accepts Client’s submission of this Agreement online (the “Effective Date”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. As used in this Agreement:
“AAA” has the meaning set forth in Section 11.9.
“Claims” has the meaning set forth in Section 8.1.
“Client” means the organization entering this Agreement with InXero and such client’s affiliates.
“Client Data” means any electronic data, information or material provided or submitted by Client to InXero through the Service and any data gathered by InXero from Client’s customers utilizing Services provided by InXero.
“Confidential Information” has the meaning set forth in Section 6.1.
“Disclosing Party” has the meaning set forth in Section 6.1.
“Effective Date” has the meaning set forth in the Preamble.
“Feedback” has the meaning set forth in Section 5.5.
“Indemnitees” has the meaning set forth in Section 8.1.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“InXero IP Rights” has the meaning set forth in Section 5.1.
“InXero Technology” has the meaning set forth in Section 5.1.
“License Term” means the term during which InXero will provide the Service to Client, as specified in an Order Form.
“Network“ means the group of Users within Client’s organization who have access to the Service.
“Network Administrator” means the initial User subscribing for Service on behalf of a Client, or a User designated in a writing signed by an authorized representative of Client who is authorized to submit additional Order Forms for ordering additional User licenses; performs other license administration functions on behalf of Client; and is responsible for overseeing the use of, and monitoring the content posted to, Client’s Network.
“Order Form” means collectively the contract and order documents (which may be in the form of an online order form or menu of Service options) representing the initial purchase of the Service (and any subsequent purchases agreed to between the parties in writing from time to time) that specify, among other things and as applicable, the specific Services ordered and associated fees, any license rights thereto, and any applicable options or restrictions thereon.
“Receiving Party” has the meaning set forth in Section 6.1.
“Service” means the services selected online by the Client in an applicable Order Form, which shall be made available by InXero from time to time at http://www.InXero.com or other designated web sites or IP addresses, including associated documentation made available to Client from time to time in written form or online. The Service is intended to provide place for enterprises to showcase and promote their products, services, events and webinars, manage their conversations and information among employees, customers and partners in real time and may include, without limitation, access to an array of enterprise conversation and information management, vendor software and service databases, vendor marketing content through dedicated channels, websites, mobile devices, customer experience management, social networking, activity tracking, status updating, messaging and commenting, and online collaborative workspace services for managing and enhancing internal and external business relationships. Services may also include strategy, consulting, or other creative services.
“Software” means any programming code, tools, scripts, and/or protocols used in connection with the provision or operation of any of InXero’s suite of applications.
“Subscription Period” has the meaning set forth in Section 2.2.
“Taxes” has the meaning set forth in Section 4.6.
“User(s)” mean employees, representatives, consultants, contractors or agents of Client who are authorized by Client to use the Service, agree to be bound by the terms of this Agreement as though they had been an individual subscriber, and have been supplied user identifications and passwords by Client (or by InXero at Client’s request).
“User Content” means photos, profiles (including names, images, and likeness), messages, notes, text, information, music, video, listings, and other content that may be uploaded, published or displayed on or through the Service, whether by Clients, Users or the end customers of Client which use the Service in connection with their interaction with Client.
2.1 Initial Service. InXero shall initially make the Service and Software available to Client on the terms set forth in this Agreement and the first Order Form entered into by Client.
2.2 Additional Users or Services. During the License Term, (“Subscription Period”), User licenses cannot be shared or used by more than one User. If Client wishes to add additional User licenses, the Network Administrator may invite the new User to join the Network established on behalf of the Client and such new User must then agree to be bound by the terms of this Agreement. Upon InXero’s acceptance of a new User’s submission of a properly executed counterpart of this Agreement, InXero shall make the Service available to the additional Users on the terms and conditions set forth in this Agreement and each approved additional Order Form. Unless otherwise specified in the relevant Order Form (a) the term of any Services and/or any User licenses (if applicable) shall be coterminous with expiration of the License Term; and (b) the fee for the Services and/or User licenses shall be a prorated amount of those fees specified on the applicable Order Form for the License Term.
2.3 Notices. Users may use the account settings provided in the Service to control User account profiles. By providing InXero an email address (on Client’s domain) User consents to InXero using the email address to send Service-related notices, including any notices required by law, in lieu of communication by postal mail. User may use the notifications settings in the Service to opt out of many Service-related communications. InXero may also use Users’ email addresses to send other messages, including changes to features of the Service and special offers. If a User does not want to receive such email messages, such User may opt out by changing the preferences in the User’s account settings. Opting out may prevent Users from receiving email messages regarding updates, improvements, or offers.
2.4 Network. From time to time, Users may be asked to confirm their account on the Network via an email message containing a hyperlink to the User's Network email address. If such account is not reconfirmed, the account is removed. Once a User is removed from a Network, the User Content of that User remains on the Network and is the sole property of the Client which administers that Network. Users should follow the employer's (Client) policies, guidelines, and procedures concerning the User Content they post to the Service. Users may delete their own User Content from the Network, so long as they are a Member of that Network. Network Administrators may delete the User Content of one or more Users in their Network.
2.5 Network Administrator. Each Network may have one or more Network Administrator. Networks may exist on the Service absent a Network Administrator; in such case Users are responsible for conducting themselves in accordance with this Agreement. A Network Administrator has access to certain tools. Such tools are available for a monthly license fee based on the number of Users in that Network per month.
3. Use of the Service.
3.1 InXero Responsibilities. InXero shall:
(a) in addition to its confidentiality obligations under Section 6, not use, edit or disclose the Client Data except as is necessary for the provision of the Service to Client or as otherwise provided in Section 6; (b) use commercially reasonable efforts to maintain the security and integrity of the Service; (c) work diligently to resolve any errors or issues with the Service that are reported to InXero’s support services team; and (d) use commercially reasonable efforts to make the Service available 24/7 (24 hours a day, 7 days a week), except for (i) planned down time, or (ii) down time caused by circumstances beyond InXero’s reasonable control, including without limitation, acts of God, acts of government, war, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications network or electrical failures, delays involving hardware or software not within InXero’s possession or control or Client network intrusions or denial of service attacks.
3.2 Client Responsibilities. The person entering into this agreement on behalf of Client represents and warrants he or she has the actual authority to bind such organization and its affiliates to these terms and conditions of this Agreement. Client is responsible for all User activities that occur under Client’s User accounts. Client shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify InXero promptly of any such unauthorized use of which it becomes aware; and (c) comply with all applicable local, state, federal, and foreign laws in using the Service.
3.3 Service Guidelines. Client shall use the Service solely for its usual business purposes and shall not use the Service to: (a) send spam or any other form of duplicative and unsolicited messages, other than marketing and promotional messages to Client’s customers and distribution channel members and prospective customers and distribution channel members; (b) harvest, collect, gather or assemble information or data regarding other users of the Service without their consent; (c) transmit through or post on the Service unlawful, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material that may be harmful to minors; (d) knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (e) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; (f) attempt to gain unauthorized access to the Service, computer systems or networks related to the Service; or (g) harass or interfere with another authorized user’s use and enjoyment of the Service.
3.4 Third-Party Providers. During use of the Service, Client may enter into correspondence with, purchase goods and/or services from, or participate in promotions which are separate and apart from any Services provided by InXero. Any such activity, agreement, and any terms, conditions, warranties or representations associated with such activity, is solely between Client and the applicable third-party unaffiliated with InXero. InXero and its licensors shall have no liability, obligation or responsibility for any such correspondence, goods/services, purchase or promotion between Client and any such unaffiliated third-party. Nothing herein shall be construed to limit InXero’s ability to enter into any agreement with any third party.
3.5 Marks; Press Releases. Except as otherwise agreed in this Agreement, neither InXero nor Client shall use the other party’s name or trademarks except with the prior written authorization of the other party, and each party agrees to immediately cease any use of the other party’s name or trademarks if the other party objects to such use; provided, however, that Client agrees the Software and/or Service shall be branded with an identifying mark similar to “Powered by InXero” or as otherwise agreed by the parties. Neither party shall issue a press release referring to the other party without the other party’s written consent. Notwithstanding the foregoing, InXero may identify Client as a customer in its other marketing materials, including the InXero website and in InXero advertising (the “Marketing Materials”), and Client hereby grants to InXero for the License Term a non-exclusive, non-transferable (except in connection with assignments permitted under Section 11.6), royalty-free, worldwide right and license to use and display in InXero’s Marketing Materials Client’s name and brands, and also to use and display those trademarks, service marks, designs, characters, copyrights and related trade dress of Client as may be agreed upon by Client and InXero from time to time. Client also agrees that InXero may verbally reference Client as a client of the InXero Services.
3.6 Continued Performance. Each party agrees that it shall, unless otherwise directed by the other party, continue performing its obligations under this Agreement while any dispute is being resolved unless and until this Agreement is terminated in accordance with its terms. Notwithstanding anything to the contrary contained herein, and even if any dispute arises between the parties, in no event nor for any reason shall InXero disable the Services or any portion thereof, unless (a) authority to do so is granted by Client in writing or conferred by a court or arbitrator of competent jurisdiction or this Agreement has been terminated in accordance with its terms, or (b) as provided in Section 4.5 hereof.
3.7 Use Restrictions. In addition to other restrictions on use of the Service contained herein, Users agree as follows:
(a) A User may never use another User’s account without permission. When creating User accounts, Users must provide accurate and complete information, including a valid e-mail address from within the domain of the Client. User is solely responsible for the activity that occurs under his or her User name and password. Users must keep their account password secure and must notify InXero immediately of any breach of security or unauthorized use of User’s account. Although InXero will not be liable for losses caused by any unauthorized use of a User account, a User shall be liable for the losses of InXero or others due to such unauthorized use of such User’s account.
(b) You agree not to use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Service in a manner that sends more request messages to the InXero servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser. You agree not to use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages. In addition, Users shall not (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) taking any action that imposes, or may impose (as determined by InXero in its sole discretion) an unreasonable or disproportionately large load on our infrastructure; (iii) upload invalid data, viruses, worms, or other software agents through the Service; (iv) impersonate another person or otherwise misrepresent such User’s affiliation with a person or entity, conducting fraud, hiding or attempting to hide the User’s true your identity; (v) interfere with the proper working of the Service; (vi) bypass the measures InXero may use to prevent or restrict access to the Service, including, but not limited to, registering for the Service with an email address outside Client’s domain; (vii) monitor the availability, performance or functionality of the Service, or for any benchmarking or competitive purposes; or (ix) use the Services in connection with affiliate programs, multi-level marketing schemes, sites/blogs, repurposing existing stories (source hops), or off-topic content.
(c) Except as may be expressly permitted by applicable law or authorized by InXero in writing, Users shall not, and shall not permit anyone else to, use the Services for any purpose that is unlawful or prohibited hereby, or any other purpose not reasonably intended by InXero.
(d) InXero may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability, if, in InXero’s sole determination, you violate any term of the Agreement. Upon termination for any reason, you continue to be bound by this Agreement.
3.8 Content. InXero does not allow any of the following content, or links to such content, to be published on the Site or through the Service: (i) content that is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive in nature; content of an illegal nature or pirated (including stolen copyrighted material); content with the sole purpose of causing harm or inciting hate, or content that could be reasonably considered as slanderous or libelous; content that would be considered a criminal offense, harms minors in any way, gives rise to civil liability or violates any law; or that is otherwise inappropriate. InXero takes no responsibility and assumes no liability for any User Content posted or sent over the Service. Users understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content sent, uploaded, downloaded, streamed, posted, transmitted, displayed, or otherwise made available or accessed through the Service, is solely the responsibility of the User. InXero is not responsible for any public display or misuse of User Content. Client and each User understands and acknowledges that it may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and Client and each User agree that InXero shall not be liable for any damages alleged to incur as a result of such User Content. Client and Users are solely responsible for their interactions with other InXero Users. We reserve the right, but have no obligation, to monitor disputes between Users.
(a) The Service may permit Clients to offer one or more promotions through the Service and distribute promotional materials and other media in connection with such promotions. If Client chooses to sponsor a promotion, Client acknowledges and agrees that Client is solely responsible for such promotions, including for all promotional content and for ensuring that such promotions and content comply with all applicable laws, rules, and regulations in the State of Texas and in each jurisdiction in which Client offers such promotion, and Client further acknowledges and agrees that InXero offers no legal or other advice regarding such promotions. Client agrees to indemnify and hold harmless InXero and its officers, directors and affiliates for any loss, liability, expense, cost or damage (including, without limitation reasonable attorneys’ fees) incurred by InXero in connection with any promotion offered by Client.
4. Fees & Payment.
4.1 User Fees.
(a) Fees and any other charges for the use of the Services are described on the Site at: http://www.inxero.com/home/pricing_plan. InXero may at its option offer subscription plans based on billing cycles that may be monthly, annual or other periods of time, and may offer discounts for various subscription plans. The applicable fees and subscription plans offered may change from time to time, as determined by InXero in its sole discretion, provided however that InXero shall provide Client with at least 30 days’ notice prior to implementing a change to the fee schedule. Client’s continued use of the Site after any change to the fee schedule indicates Client’s agreement with the new fees and charges after the effective date of the change. Any change to fees and other charges will take effect as specified in the notice delivered to Client.
(b)In consideration for the Services, Client shall pay the fees specified in the fee schedule set forth in any Order Form and in any approved additional Order Forms that may be submitted by Client and accepted by InXero from time to time. All fees are quoted and payable in United States dollars. Client’s obligation to pay the fees continues through the end of the applicable License Term. Fees are non-refundable and are based on the creation and maintenance of the Service and the tier of Service specified in the relevant Order Form, not the extent of actual usage by Users or traffic experienced by the Service. Fees for additional Users added in the middle of a billing period shall be charged going forward based on the number of months remaining in the License Term. Each renewal of the License Term shall be subject to InXero’s standard fee and pricing schedule then in effect at the time of renewal, unless otherwise agreed to in writing by InXero and Client. If there is one Network Administrator for a Network, such person will be responsible for payment of any fees due for such Network. If there is more than one Network Administrator for a Network, the initial Network Administrator will be the billing party of record unless otherwise changed.
4.2 Excess Data Storage Fees. Client acknowledges that the maximum disk storage space provided to Client for Client Data at no additional charge is specified in the Order Form. Client may purchase additional disk storage at rates mutually agreed upon in writing by the parties.
4.3 Invoicing & Payment. InXero shall invoice Client for fees for the Services in advance (but not earlier than 60 days prior to the commencement of any renewal term) and otherwise in accordance with the terms of the relevant Order Form. Charges due shall be payable at such time as is indicated in the Order Form, provided that if no date is specified in the Order Form, then charges shall be payable thirty (30) days from the date of the applicable invoice (the “Due Date”). All payments made under this Agreement shall be in United States dollars.
4.4 Overdue Payments. Any payment not received from Client by the Due Date may accrue, at InXero’s discretion, late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the Due Date until the date paid.
4.5 Suspension of Service. If Client’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, InXero reserves the right to suspend the Service provided to Client until such amounts are paid in full.
4.6 Taxes. InXero’s fees are exclusive of all local, state, federal and foreign taxes, value added taxes, levies, or duties of any nature (“Taxes”) and Client is responsible for payment of all Taxes, excluding only taxes based on InXero’s income. If InXero has the legal obligation to pay or collect taxes for which Client is responsible pursuant to this Section 4.6, the appropriate amount shall be invoiced to and paid by Client unless Client provides InXero with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.7 Billing and Contact Information. Client shall ensure that Network Administrator maintains complete, accurate and up-to-date Client billing and contact information. Client agrees to pay for all Services ordered through the InXero web site using the payment method indicated on the related Order Form (presently PayPal or check), and provide InXero express authorization to charge said fees to the Client’s payment provider at time of purchase. Charges will automatically renew using the Client’s current payment account information unless Client cancels their Network Administration by email to email@example.com prior to the applicable deadline for terminating a License Term as provided in Section 10.2. All cancellation requests will be processed within five (5) business days. Once the cancellation is processed, a confirmation email will be sent via the Client’s email account on record with InXero. If Client has a question about a cancellation, Client should contact InXero at firstname.lastname@example.org The Company reserves the right to change its fees or billing methods at any time. Any attorney fees, court costs, or other costs incurred in collection of delinquent undisputed amounts shall be the responsibility of and paid for by Client. If payment is not current, InXero may immediately cease to provide any and all services to the Client. The fees paid for monthly Network usage are non-refundable, regardless of whether the Claimed Network is terminated prior to the end of the then-current monthly billing period. The Client must notify InXero about any billing problems or discrepancies within 90 days after charges first appear on their account statement. If it is not brought to InXero’s attention within 90 days, Client agrees to waive their right to dispute such problems or discrepancies.
5. Proprietary Rights.
5.1 Reservation of Rights. Client acknowledges that in providing the Service, InXero utilizes (a) the InXero name, the InXero logo, the InXero.com domain name, the product names associated with the Service and other trademarks, (b) certain audio and visual information, documents, software and other works of authorship; and (c) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively “InXero Technology”), and that the InXero Technology may be covered by Intellectual Property Rights owned or licensed by InXero (“InXero IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in the InXero Technology or InXero IP Rights are granted to the Client and all such rights are hereby expressly reserved.
5.2 License Grants. During the applicable License Term set forth in the Order Form, InXero grants Client and its Users a worldwide, non-exclusive, non-transferable (except as provided in Section 11.6), non-sublicenseable right to access and use the Service for the purpose for which it is made available to Client and otherwise in accordance with the terms of this Agreement and the applicable Order Form. Client grants to InXero a worldwide, non-exclusive, non-transferable (except as provided in Section 11.6), non-sublicenseable, royalty-free license to use, copy, store, modify, distribute, redistribute and display the Client Data solely to the extent necessary to provide the Service.
5.3 Intellectual Property Restrictions. Client shall not (a) modify, copy or make derivative works based on the Service, Software, InXero Technology or InXero IP Rights, or any portion thereof; (b) disassemble, reverse engineer, or decompile the Service, the Software, InXero Technology or InXero IP Rights; (c) create Internet “links” to or from the Service, or “frame” or “mirror” any of InXero’s content which forms part of the Service (other than on Clients’ own internal intranets); (d) re-license, rent, lease, timeshare, or act as a service bureau or provide subscription services for the InXero Services or Software; (e) use the InXero Services or Software to provide third-party training except for training agents and contractors that InXero has authorized in writing; (f) remove or modify any program or service markings or any notice of InXero’s proprietary rights; and (g) disclose results of any benchmark tests without InXero’s prior written consent.
5.4 Client Data. As between InXero and Client, all data submitted to the Service, whether posted by Client, by third parties or by Client’s customers using the Service in connection with their interaction with such Clients, remains the sole property of Client. Client Data shall be considered Confidential Information (as defined below), subject to the terms of this Agreement. InXero may convey Confidential Information to affiliated and non-affiliated third-party service providers engaged by InXero in the provision of the Services or related matters, provided that each such third-party service provider must agree to be bound by confidentiality provisions protective of the Confidential Information. Notwithstanding any other provision in this Agreement, InXero may provide statistical and performance data for the Service, including certain User registration and statistical information such as usage or User traffic patterns, in aggregate form to third parties, provided that such information does not include Client or personally identifying information. InXero may access Client’s User accounts, including without limitation Client Data, solely to respond to service or technical problems affecting the Service.
5.5 Suggestions, Ideas and Feedback. Client hereby grants and assigns to InXero all of Client’s right, title and interest in and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information (collectively, “Feedback”), as well as any resulting work product or derivative works of such Feedback, provided by Client, its employees, agents, customers or any other party, whether verbally or in writing, relating to the operation of the Service to the extent it does not constitute Confidential Information of Client. InXero shall have the unrestricted right to use or act upon such Feedback. If for any reason Client’s assignment of the Feedback is ineffective, Client hereby grants and agrees to grant to InXero a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit such Feedback without restriction.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all information of a party (“Disclosing Party”) which the Disclosing Party designates in writing as being confidential when it discloses such information to the other party (“Receiving Party”) or which should otherwise reasonably be understood to be confidential considering the nature of the information and/or the circumstances of disclosure, including without limitation the terms and conditions of this Agreement, each Order Form (including any and all information regarding services, pricing and/or discounts), Client Data, the InXero Technology or InXero IP Rights, the Service, business and marketing plans, technology and technical information, product designs, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). Client Data shall be deemed Confidential Information regardless of its written designation. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (b) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (c) is received, without any confidentiality obligation, from a third party who obtained such information without any third party’s breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. Subject to the provisions of Section 5.4, the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without the requirements of posting a bond, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. Warranties & Disclaimers.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. The person entering into this agreement on behalf of Client represents and warrants he or she has the actual authority to bind such organization and its affiliates to these terms and conditions of this Agreement. InXero represents and warrants that it (a) owns, licenses and has all rights and interest necessary to grant this license to Client, and (b) the licensed Service does not violate or infringe any valid patent, trademark, trade secret, copyright, intellectual property right or similar proprietary right which is not owned or licensed by InXero.
7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SCOPE OF WORK PROVIDED AND THE SERVICES RENDERED BY INXERO UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “WHERE IS” BASIS, WITHOUT ANY WARRANTY, EXPRESS, IMPLIED OR OTHERWISE, REGARDING SUCH SCOPE OF WORK OR SERVICES’ ACCURACY, PERFORMANCE, OR ANY OTHER MATTER. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, INXERO HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.3 Disclaimer of Third-Party Interference. InXero expressly disclaims all responsibility and liability, and Client hereby agrees to forever release and hold InXero harmless, for damages, interruptions, interference, down time or other interference with the Services caused by circumstances beyond InXero’s reasonable control, including without limitation, (a) Client’s failure to maintain any required merchant account with a payment processing gateway designated by InXero, (b) acts of God, (c) acts of government, (d) war, (e) flood, (f) fire, (g) earthquakes, (h) civil unrest, (i) acts of terror, (j) strikes or other labor problems, (k) telecommunications network or electrical failures (including those of wireless telecommunications companies), (l) Client network intrusions or denial of service attacks, (m) delays or interruptions caused by integration with any Client asset or third-party APIs, networks, databases, content or (n) other delays or interruptions involving hardware or software not within InXero’s possession or control.
8.1 Indemnification by InXero. Subject to this Agreement, InXero shall defend, indemnify and hold Client and Client’s affiliates (collectively, “Indemnitees”) harmless against any loss, liability, expense, cost or damage (including without limitation reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against any Indemnitee by a third party resulting in a determination by a court or arbitrator of competent jurisdiction that the Service or the Indemnitee’s use of the Service infringes the Intellectual Property Rights or misappropriates any patent, trademark, copyright, trade secret, or any other proprietary right of a third party; provided that Client (i) promptly gives written notice of the Claim to InXero; (ii) gives InXero sole control of the defense and settlement of the Claim (provided that InXero may not settle or defend a claim unless it unconditionally releases Indemnitees of all liability); and (iii) provides to InXero at InXero’s cost, all reasonable assistance. InXero shall have no obligations to Client under this Section 8.1 to the extent such Claims arise from Client’s or its User’s breach of this Agreement or from the combination of the Service with any of Client’s products, services, hardware or business processes.
8.2 Indemnification by Client. Subject to this Agreement and in addition to indemnification obligations elsewhere contained in this Agreement, Client shall defend, indemnify and hold InXero harmless against any loss, liability, expense, cost or damage (including without limitation reasonable attorneys’ fees) incurred in connection with Claims made or brought against InXero by a third party (a) alleging that the Client Data, or the use thereof by either party, has caused harm to a third party or infringes the Intellectual Property Rights of a third party, (b) arising from breach of this Agreement by Client, or (c) arising from any intentional or willful conduct or negligence of Client; provided, that InXero (i) promptly gives written notice of the Claim to Client, except that any failure to provide this notice promptly only relieves Client of its responsibility pursuant to this Section 8.2 to the extent its defense is materially prejudiced by the delay; (ii) gives Client sole control of the defense and settlement of the Claim (provided that Client may not settle or defend any Claim unless it unconditionally releases InXero of all liability); and (iii) provides to Client, at Client’s cost, all reasonable assistance. Client shall have no obligations to InXero under this Section 8.2 to the extent such Claims arise from InXero’s breach of this Agreement (such breach as determined by a court or arbitrator of competent jurisdiction) or Client’s use of Client Data as authorized and contemplated by this Agreement.
Client further acknowledges and agrees that (i) InXero’s provision of the Service is subject to certain limitations and restrictions set forth in the “Acceptable Use Policies” attached hereto as Exhibit A, (ii) such Acceptable Use Policies are fully incorporated herein by reference as a part of this Agreement, (iii) the terms of such Acceptable Use Policies may change from time to time at the discretion of InXero, (iv) Client is responsible for periodically reviewing such terms (available at www.InXero.com) and complying with all terms and conditions therein, and (v) if at any time Client fails to comply with the Acceptable Use Policies (as determined by InXero in its sole discretion), InXero may immediately (i) suspend the Service and/or (ii) terminate this Agreement pursuant to Section 10.3, in each case without regard to any notice or cure period. Client shall defend, indemnify and hold InXero harmless against any loss, liability, expense, cost or damage (including without limitation reasonable attorneys’ fees) incurred in connection with Claims made or brought against InXero by a third party as a result of Client’s violation of any term or condition of those Acceptable Use Policies set forth in Exhibit A or as may be in effect from time to time.
9. Limitation of Liability.
9.1 Limitation of Liability. IN NO EVENT SHALL INXERO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $500 OR THE AMOUNTS ACTUALLY PAID BY OR DUE FROM CLIENT FOR THE SERVICE DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL INXERO HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST REVENUE, INCOME, PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT INXERO OR THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.3 Limitation of Action. Except for actions of non-payment or breach of either party’s Intellectual Property Rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued, regardless of when such cause of action was discovered.
10. Term & Termination.
10.1 Efficacy of this Agreement. This Agreement commences on the Effective Date and continues in effect until terminated pursuant to the terms of this Agreement. This Agreement shall constitute terms and conditions applicable to all Order Forms submitted by Client and accepted by InXero.
10.2 Term of User Licenses. User licenses commence on the start date specified in the relevant Order Form and continue for the License Term specified therein. User licenses shall automatically renew for additional License Terms for a duration equal to the last License Term for which Client had subscribed at the list price then in effect at the time of renewal unless Client provides InXero notice of termination no later than sixty (60) days prior to the end of the License Term or relevant renewal term (as the case may be).
10.3 Termination. A party may terminate this Agreement for cause: (a) upon thirty (30) days written notice to the other party of a material breach, provided such breach remains uncured at the expiration of such notice period; or (b) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, if at any time Client fails to comply with the Acceptable Use Policies (as determined by InXero in its sole discretion); InXero may immediately (i) suspend the Service and/or (ii) terminate this Agreement, in each case without regard to any notice or cure period.
10.4 Outstanding Fees. Termination shall not relieve Client of the obligation to pay any fees accrued or payable to InXero prior to the effective date of termination, including fees which may be prepaid for any License Term or any applicable renewal term.
10.5 Return of Client Data. Upon written request by Client within thirty (30) days of the effective date of termination (and provided Client is in compliance with all of its obligations hereunder), InXero shall make available to Client a file of Client Data. After such thirty (30) day period, InXero shall have no obligation to maintain or provide any Client Data.
10.6 Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Section 1, Section 3.5 Section 4 (only to extent applicable to payments due and owing InXero under this Agreement prior to such expiration or termination), Section 5 (excluding Section 5.2 and Section 5.4), Section 6, Section 7, Section 8, Section 9, Section 10 and Section 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency or employment relationship between the parties. Notwithstanding anything herein to the contrary, InXero shall only be obligated to provide the Software and the Service pursuant to the terms of this Agreement. In no event shall InXero provide or serve as fundraising counsel to Client. Further, InXero will not solicit funds, collect funds or have any fiduciary responsibility for Client’s fundraising activity, if any.
11.2 No Rights to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and are not to be construed as conferring any rights on any other persons.
11.3 Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses notified by the parties to each other by a means evidenced by a delivery receipt, by facsimile or by email. Notice shall be deemed to have been given upon (a) personal delivery; (b) the fifth business day after mailing by certified mail; (c) 48 hours after sending by confirmed facsimile; or (d) 48 hours after sending by email (confirmed delivery). Notices to either party shall be addressed as indicated in the applicable Order Form.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party.
11.6 Assignment. Client may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of InXero. InXero may assign its rights and obligations under this Agreement in its sole discretion. Any attempt by Client to assign its rights or obligations under this Agreement in breach of this Section 11.6 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of Texas, without regard to its conflict of laws provisions.
11.8 Venue. The federal courts of the United States in the Northern District of Texas and the state courts of the Sate of Texas located in Travis County, Texas shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum on conveniens or otherwise.
11.9 Arbitration. Any dispute arising out of or relating to this Agreement other than a dispute requiring urgent relief or concerning InXero IP Rights shall be resolved solely by final and binding arbitration as follows: Unless the parties otherwise agree in writing, the arbitration shall be conducted in the city of Austin, Texas before a single arbitrator. The arbitrator shall have relevant knowledge and/or experience in Internet-based online services and shall be jointly selected and mutually approved by the parties or, if the parties are unable to agree, shall be appointed by the American Arbitration Association (“AAA”). The arbitration shall be conducted in accordance with the AAA’s rules of commercial arbitration. The parties initially shall share equally the fees and expenses of the arbitration. However, the prevailing party (if applicable and as determined by the arbitrator) shall be entitled to recover from the non-prevailing party all such fees and expenses (including without limitation reasonable attorneys’ fees). Any arbitration decision so rendered shall be final and binding, and judgment thereon may be entered in any court of competent jurisdiction.
11.10 Export Control Laws. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
11.11 Entire Agreement and Construction. This Agreement, the Exhibits, the Order Forms and any approved additional Order Forms constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. In the event of any conflict between the provisions in this Master Subscription Agreement and any exhibit, Order Form, the terms of this Agreement shall prevail to the extent of any inconsistency (unless such inconsistency is identified and expressly stated to be governed by such Exhibit or Order Form). Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order, InXero quote or in any other order documentation of either party shall be incorporated into or form any part of this Agreement.
11.12 Modification of this Agreement. InXero reserves the right to amend this Agreement upon notice to you at any time. These modifications may include, without limitation, changes to the payment terms for the Services or the addition of new terms or Exhibits. We shall notify you in this event. You will be provided the option to terminate your use of the Services as provided herein if InXero modifies this Agreement in a manner that substantially affects your rights in connection with use of the Services. Your continued use of the Service after notice of any change to the Agreement will be deemed to be your agreement to the amended Terms.
11.13 Exhibits. Exhibit A hereto is a part of this Agreement and is incorporated herein by reference.
11.14 Counterparts; Electronic Signature. This Agreement may be executed by electronic signature, which shall be deemed an original counterpart. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
[End of Agreement; Client will be asked to indicate its intent to be bound by the terms of this Agreement on the electronic signature page that follows.]
ACCEPTABLE USER POLICIES
The following terms and conditions in this Acceptable Use Policies (this “AUP”) apply to the Services obtained by Client from InXero. ANY CLIENT WHO DOES NOT AGREE TO BE BOUND BY THESE TERMS SHOULD IMMEDIATELY STOP USE OF THE SERVICES AND NOTIFY INXERO ACCOUNT MANAGEMENT SO THAT THE CLIENT’S SERVICE CAN BE CANCELLED PURSUANT TO THE TERMS OF THE AGREEMENT. In the event of a conflict between the Master Subscription Agreement and this AUP, the terms of this AUP will govern. Questions regarding this AUP and complaints of violations of this policy can be directed to support@InXero.com.
1. Illegal Activity. Use of the Services for any activity that violates, or constitutes an attempt to violate, any local, state, federal or international law, order or regulation (including without limitation any alleged fraudulent or inappropriate use of a non-profit or tax-exempt status), or to engage in tortious conduct, is a violation of this Policy. You may not use the Service to harm or attempt to infringe the copyright of another or to harm a minor, including, but not limited to, by posting, possessing, disseminating, or transmitting material that is unlawful, including child pornography or obscene material or material that infringes on the copyright of another.
2. Spamming/Unsolicited Bulk E-Mail. Sending unsolicited mail messages, including, without limitation, commercial advertising and informational e-mail is spamming and is prohibited. Client may not post to any Usenet or other newsgroup, forum, or list articles which are illegal or inappropriate in the local forum; send unsolicited mass e-mailings, send or forward chain letters; use the InXero Service as a maildrop for responses; and/or (d) falsify user information, including forging, altering or removing electronic mail headers. Client may not reference InXero or any related entity (e.g. by including "Organization: InXero" in the header or by listing an IP address that belongs to InXero or any related entity) in any unsolicited e-mail even if that e-mail is not sent through the InXero network. InXero or its Internet Carrier Service uses several spam reporting web sites including, but not limited to, SpamHaus and SORBS, and these web sites may change from time-to-time. Listing on one or more of these web sites, or any other spam reporting web site, of (i) the Client’s name including fictitious names (d/b/a or aliases); (ii) one of Client’s employees in connection with the use of the Client’s service, or an alias of such employee(s); or (iii) the InXero IP space provided to Client will result in immediate termination or suspension of Service to Client. Each case will be individually investigated by InXero and InXero may condition reconnection or re-provision of Service upon removal of the listing from the spam reporting web sites.
3. Harvesting/Spidering/Spyware. The collection of e-mail addresses, screen names, or other identifiers of others (without their prior consent), a practice sometimes known as spidering or harvesting, or participating in the use of software (including "spyware") designed to facilitate this activity or use of a list obtained from such means is not allowed. A user suspected or found harvesting email addresses may be blocked from sending mail until InXero is satisfied that the activity has been stopped.
4. Streaming Video Limitation. Client shall not host or stream video or audio directly from any standard or mobile websites provided as part of the Service. All streaming video will be brought to the page/user experience from an outside video server, such as YouTube.
5. Bandwidth Limitations. The Client must comply with the then current bandwidth, pages, view or data storage and other limitations on the Services, as specified by InXero from time to time. Client may not use the Services in a manner that places disproportionate burden on the network or impairs the Service received by other Clients.
6. End Users. The Client must also make contact information publicly available, and must respond promptly to any complaints. Complaints regarding the Client’s end users shall apply to the Client.
7. Advertising Limitations. Client shall not incorporate any banner advertising into any standard or mobile websites provided as part of the Service. Client agrees that any advertising to be incorporated into any standard or mobile website shall be subject to the review and prior written approval of InXero.
8. Security. The Client is responsible for any misuse of the Services, even if the inappropriate activity was committed by an employee, Client, consultant, guest or other individuals who have access to the Client’s system or network. Therefore, the Client must take steps to ensure that others do not gain unauthorized access to the Services. This includes any third party use of unsecured mail and news servers or any other unauthorized access that results in a violation of any portion of this AUP. The Services may not be used to breach the security of another Internet user or to attempt to gain access to any other person's or entity's computer, server, software or data, without the knowledge and consent of such person or entity, including attempts to circumvent the user authentication, or probing the security of other networks. InXero does not under any circumstance allow Client or unauthorized individuals to scan, probe, or use security analysis tools against the InXero network or the networks of our other clients or customers and use of or distribution of tools designed for compromising security of non-Client networks, such as password guessing programs, cracking tools, packet sniffers or network probing tools, is prohibited. Client may not willfully or knowingly disrupt the Services or interfere with computer networking or telecommunications services to any user, host or network, including, without limitation, denial of service attacks, flooding of a network, overloading a service, improper seizing and abuse of operator privileges and attempts to "crash" a host. The transmission or dissemination of any information or software which contains a virus or other harmful feature also is prohibited. The Client is solely responsible for the security of any device Client chooses to connect to the Services, including any data stored on that device. If InXero detects that Client's equipment or Client's Internet/data transmissions contain Viruses, Trojans, Worms or similar damaging content/data that adversely affects the InXero network, the Services provided to other InXero clients or customers, or otherwise compromises the integrity or the operation of the InXero network, InXero may disconnect Client from Service immediately; and, in this event, InXero will make reasonable efforts to promptly contact Clients regarding the interruption of Service. It is the Client’s sole responsibility to ensure that any computer or device they connect to the InXero Services network remains secure and virus free.
9. Client Information. InXero and its affiliates and vendors may cooperate with (i) law enforcement authorities in the investigation of suspected criminal violations. Cooperation may include InXero or its vendors providing the name, IP address(es), or other identifying information about a Client. Upon termination of a Client's Service, InXero is authorized to delete any files, programs, data and e-mail messages associated with such account. InXero will not release any personally identifiable information regarding our Clients (excepting that which is public knowledge, such as the InterNIC's WHOIS database) or their end users to any third party except upon presentation of (a) a subpoena issued by a government entity in a civil or criminal investigation or litigation; (b) a civil investigative demand issued by a government entity; or (c) a court order. InXero may release such information based upon its sole reasonable judgment as to the validity of any such order.
10. Inappropriate Content and Unacceptable Links. The Client is solely responsible for any information that is accessed through use of the Services, and InXero bears no responsibility for such content. InXero and its affiliates and vendors reserve the right to refuse to post or to remove any information or materials, in whole or in part, that it, in its sole discretion, deems to be offensive, indecent, or otherwise inappropriate regardless of whether such material or its dissemination is unlawful or infringes on the copyright, trademark, or other intellectual property right of a third party. By using the Services to reproduce, publish, display, transmit and distribute content, the Client is warranting that the content complies with this AUP and authorizing InXero and its affiliates to reproduce, publish, display, transmit and distribute such content as necessary for InXero to deliver the content in a timely manner.
11. Newsgroups. Messages posted to newsgroups must comply with the written charters or FAQs for those newsgroups. The Client is responsible for determining the policies of a given newsgroup before posting to it. Posting or cross-posting the same or substantially similar messages to more than eight newsgroups is prohibited.
12. Internet Relay Chat. InXero Services may be used to participate in "chat" discussions. The Services may not be used to perform chat "flooding." Any single computer or other device connected through the Services may not maintain more than 2 simultaneous chat connections. This includes the use of automated programs, such as "bots" or "clones". Automated programs may not be used when the user is not physically present at the device. The Services may not be used to access any chat server in violation of the acceptable use policy of that server.
13. Consequence of Violation of Acceptable Use Policy. When InXero becomes aware of an alleged violation of its AUP, InXero may initiate an investigation. For violations of this AUP, InXero may, at its sole discretion, restrict, suspend, or terminate Client’s account and/or pursue other civil remedies. Although InXero has no obligation to monitor Services provided and/or the network, InXero and its various affiliates, vendors and partners reserve the right to monitor bandwidth, usage, and content from time to time to operate our Services; to identify violations of this AUP; and/or to protect the network and InXero or its clients. InXero prefers to advise clients of inappropriate behavior and any necessary corrective action. If InXero believes this AUP has been violated, InXero or its affiliates may take any responsive actions they deem appropriate. The failure of InXero or its affiliates to enforce this AUP, for whatever reason, shall not be construed as a waiver of any right to do so at any time.
14. Resell or redistribute of services. InXero Services are provided to an individual person or company by contract and use is subject to this policy. It is a violation of this policy and a breach of the contract to provide services to any third parties not named within the contract without prior written permission from InXero. This includes, but is not limited to the sharing of bandwidth or services through wireless access points or wired links. Subscribers may not resell or redistribute the service to any third party via any means including but not limited to wireless technology without prior written permission from InXero.