Last updated: October 23, 2018
INFLCR, LLC (“INFLCR”) and Client, as named on the applicable Software Subscription Agreement (“Agreement”), agree that the following terms of service (“Terms of Service”) shall govern Client’s use of INFLCR’s products and services and INFLCR’s provision of such products and services for Client. In the event of any conflict between the Agreement and these Terms of Service, the Agreement shall override the conflicting provisions of these Terms of Service.
- INFLCR’s Software as a Service (“SaaS”) tool and any other application or software provided to Client under the terms of the Agreement (collectively the “Software”) shall remain the sole and exclusive property of INFLCR, including all applicable rights to patents, copyrights, trademarks and trade secrets of INFLCR inherent therein and appurtenant thereto.
- INFCLR hereby acknowledges that the creation of intellectual property by the Software, including but not limited to pictures and videos, and excluding modifications, enhancements, and additions to the Software, during the Term is the sole and exclusive property of the Client in perpetuity.
- Client hereby acknowledges that the intellectual property rights in and related to the Software, are and shall remain, the sole and exclusive property of INFLCR.
- Client agrees that it will not, during the term or at any time thereafter, in any way question or dispute the ownership by INFLCR of any such rights. In the event that new inventions, designs or processes relative to the Software evolve in the performance of, or as a result of, the Client’s usage, utilization, installation or support of the Software, the Client hereby agrees that such intellectual property rights are and shall be the sole and exclusive property of INFLCR.
- Use of Software
Client shall not:
- Copy all or any portion of the Software;
- Modify any of the Software;
- Distribute, disclose, market, rent, lease, assign, sublicense, pledge or otherwise transfer any of the Software, in whole or in part, to any third party;
- Remove or alter any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in copies of the Software;
- Post private or confidential information or do anything that violates someone else’s rights, including intellectual property;
- Use the Software for any purpose or in any manner other than as expressly permitted in this Agreement.
- Confidential Information
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of INFLCR includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Client includes non-public data provided by Client to INFLCR to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Client shall own all right, title and interest in and to the Client Data. INFLCR shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, INFLCR shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and INFLCR will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other INFLCR offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
All terms and conditions that by their nature survive any expiration or termination of this Agreement shall remain in force, including but not limited to Sections 1, 2, 3, and 6 of this Agreement.
- Limitation of Liability
- Notwithstanding anything contained herein to the contrary, the parties hereby acknowledges that under no circumstances shall either party be liable to each other or any other party for indirect, incidental, consequential, special or exemplary damages arising from this Agreement, even if that party has been advised of the possibility of such damages, such as, but not limited to, loss of revenue or anticipated profits or lost business. Notwithstanding the foregoing, nothing in this paragraph is intended to limit or restrict the indemnification rights or obligations of any party under Paragraph 6.
- INFLCR’s software leverages third party Application Programming Interface (API) platforms, such as Instagram and Twitter. In the event that future third party API platform updates cause application issues, INFLCR shall not be responsible for such issues beyond working to repair the resulting connectivity limitations. With respect to user-generated content sourced through an API from a social media feed such as Twitter, Facebook or Instagram, Client shall be responsible for all of the display requirements of such feeds. Accordingly, Client shall indemnify and hold harmless INFLCR from any claims by any party relating to the publication of such content, including but not limited to right of privacy and defamation claims and any other media liability claims.
- The Parties shall indemnify and hold each other and their officers, directors, employees, affiliates, and agents, harmless from and against any claims, losses, damages, liabilities, costs or expenses of any nature (including reasonable attorney’s fees) suffered or incurred by any of them to the extent that such are caused by or arise in connection with any material breach of this Agreement by the other Party
- Except as provided below, INFLCR agrees to defend, indemnify, and hold harmless Client and its directors, members, officers, employees, and agents, from and against any and all claims, losses, damages, suits, fees, judgments, costs, and expenses, including reasonable attorneys’ fees, arising out of any and all third party claims that the INFLCR system infringes a valid patent or copyright or misappropriates a trade secret of a third party provided that Client (a) gives INFLCR written notice of any such claim within fifteen (15) days of Client’s receipt of such claim, (b) permits INFLCR to have sole control and authority with respect to the defense or settlement of any such claim, and (c) provides INFLCR all reasonable cooperation, information, and assistance in connection with the defense or settlement of any such claim. If the INFLCR system becomes, or in INFLCR’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, INFLCR may, at its option and expense, (i) procure the right to allow Client to continue to use the INFLCR system or (ii) modify or replace the INFLCR system or infringing portions thereof to become non-infringing, without loss of material functionality. If INFLCR is unable to provide one of the remedies in (i) or (ii) within forty-five (45) days of notice of the claim, INFLCR shall have the right to terminate this Agreement.
- Notwithstanding the foregoing, INFLCR shall have no liability or obligations with respect to any patent, copyright, or trade secret infringement claim based upon or arising out of (i) any modification or alteration to the INFLCR system not approved by INFLCR, (ii) any combination or use of the INFCLR system with products or services not supplied by INFLCR or approved in writing by INFLCR in advance of such combination, (iii) any patent, copyright or trade secret in which Client or its affiliates have an interest, or (iv) use of the INFLCR system not in accordance with its documentation or outside the scope of the license granted under this Agreement. Client agrees to defend, indemnify, and hold harmless INFLCR and its directors, members, officers, employees, and agents, from and against any and all claims, losses, damages, suits, fees, judgments, costs, and expenses, including reasonable attorneys’ fees, arising out of any and all third party claims enumerated in clauses (i) through (iv) above. The foregoing states the entire liability of INFLCR with respect to infringement of patents, copyrights, trade secrets, or other proprietary rights by the INFLCR system or any part thereof. Client will immediately inform INFLCR as soon as Client becomes aware of any threatened or actual liability claim by a third party relating to the INFLCR system.
- Technical Support and Software Updates
INFLCR will provide the following technical support:
- INFLCR shall supply fixes for any defects caused by factors in INFLCR’s control in the Software as soon as practicable.
- Client shall be required to install updates to the INFLCR’s Software. Any such updates shall be provided to Client at no cost.
- The issues caused by factors outside INFLCR’s control shall be handled under a service protocol established by INFLCR wherein all such significant service issues are evaluated by INFLCR for up to three (3) days after which time a service proposal shall be provided Client enumerating the estimated costs to Client to address the issue(s) identified by INFLCR. All service bills, if any, submitted to Client shall be paid in full to INFLCR within thirty (30) days of submittal.
- No Waiver. No delay or failure of any party to exercise any right provided herein shall in any way affect its right to enforce that right or any other right under this Agreement at a later time. No waiver shall be effective unless in writing signed by the waiving party.
- Severability. If any provision of this Agreement is declared invalid by any lawful tribunal, then it shall be adjusted to conform to legal requirements of that tribunal and that modification shall automatically become a part of the Agreement. Or, if no adjustment can be made, the provision shall be deleted as though never included in the Agreement and its remaining provisions shall remain in full force and effect.
- Fees. Fees shall not be refundable if Client ceases use of the Services during the Initial Term or Renewal Term of the Agreement.
- Taxes: Client shall pay any and all applicable international, federal, state, and local sales, use, value-added, excise, duty, and any other taxes, fees, or duties, not based on INFLCR’s net income, that are assessed on or as a result of the Service. Any such taxes, fees, and duties collected by INFLCR from Client on behalf of a governmental agency shall not be considered a part of, a deduction from, or an offset against, payments due to INFLCR for the Service.
- No Partnership or Agency. INFLCR and Client are independent contractors, and neither party shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, broker, employee, servant, agent or representative of the other party for any purpose. Neither party is, or shall be, responsible for the acts or omissions of the other and neither party shall bear authority to make any representation or incur any obligation on behalf of the other party unless expressly authorized herein. Each party also acknowledges that it has not relied on any promises, inducements, representations or other statements made by the other party regarding the commercial viability, profitability or success in the marketplace of any products or services, and that each party decision to enter into this Agreement is made independently from the other party.
- No Assignment. This Agreement is not assignable, transferable or sublicensable by Client except with INFLCR’s prior written consent. Any attempted assignment or delegation without the INFLCR’s prior written approval shall be void.
- Notices. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Such notices shall be addressed to Client or INFLCR at the addresses listed in the Agreement, or as updated by either party from time to time.
- Warranties and Disclaimers. While INFLCR strives to deliver the highest quality product, INFLCR does not guarantee that the Software or Services will be performed error-free or uninterrupted, or that INFLCR will correct all Service errors immediately. Client acknowledges that INFLCR does not control the transfer of data over communications facilities, including the internet, and that the service may be subject to some limitations, delays, and other problems inherent in the use of such communications facilities. INFLCR is not responsible for any delays, delivery failures, or other damage resulting from such problems. To the extent not prohibited by law, there are no express or implied warranties or conditions including for the Software, systems, and networks.
- Choice of Law and Venue. This Agreement shall be governed by the laws of Alabama without regard to its conflict of laws provisions. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the County of Jefferson, State of Alabama. This choice of venue is intended by the Parties to be mandatory and not permissive in nature. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that concerning any and all matters relating to the Agreement, the State and Federal courts located in the County of Jefferson, State of Alabama shall have personal jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement.
- Dispute Resolution. If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures in Birmingham, Alabama (or such other location agreed upon by the parties) or by private party before resorting to arbitration, litigation, or some other dispute resolution procedure unless both parties agree in writing to forego mediation. Any dispute or controversy arising under or in connection with this Agreement that cannot be settled through mediation shall be settled exclusively by arbitration in accordance with the rules of the American Arbitration Association then in effect in Birmingham, Alabama (or such other location agreed upon by the parties.
- Entire Agreement. This Agreement constitute the complete and exclusive statement of the agreement between the parties and supersede all prior oral and written agreements, communications, representations, statements, negotiations and undertakings relating to the subject matter.