Date of last revision: December 21, 2012
BY ACCEPTING THESE PLATFORM TERMS OF SERVICE (“TOS”) OR USING THE INDICEE APPLICATION(S) (“APPLICATION(S)”) OR THE PLATFORM SERVICE (“SERVICES”), YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS TOS WITH INDICEE INC. (“INDICEE”). IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF TOS, CLICK THE “I DO NOT AGREE” BUTTON AND DO NOT USE THE APPLICATION(S) OR THE SERVICES. THE DATE THAT YOU AGREE TO THIS TOS IS THE “EFFECTIVE DATE.” THE APPLICATION(S) AND THE SERVICES ARE REFERRED TO COLLECTIVELY AS THE “PRODUCT.”
1. Scope of TOS. These TOS are between You and Indicee and governs Your use of the Product and any training and/or consulting services that You purchase. You agree that Indicee may use Your customer data in an aggregate, non-personally identifiable form and for benchmarking purposes. You retain ownership of Your customer data. Indicee will provide the training and/or consulting services as described in your order form with Indicee or as set forth in your online ordering documents.
2. License Grant. Subject to the terms and conditions of these TOS, Indicee grants You a non-exclusive, non-transferable, limited license (without the right to sublicense), solely for the annual license period for which You have paid, to (i) access and use the Product and any deliverables provided through the performance of any consulting services solely for internal business use; (ii) use all associated user documentation (“Documentation”) in connection with such authorized use of the Product; and (iii) make one copy of the Documentation solely for archival and backup purposes.
3. Your Data. “Data” means any data that You upload to the Product, including without limitation, social networking usage data, such as data about how users interact with messages, contacts, and groups on social networking sites, time spent on social networking sites and what features users use in conjunction with the Product. “Customer Data” means all data, information and materials that You upload to the Hosted Services or that Indicee uploads on Your behalf, including without limitation, Your data and data from other third party databases. You shall own all right, title, and interest in and to Data and Customer Data that is collected by Indicee from You or third parties in connection with Your use of the Hosted Services. You grant and agree to grant to Indicee a perpetual, non-exclusive, royalty-free license to use such Data and Customer Data (a) in order to provide the Hosted Services to You; (b) for statistical, analytical and other aggregate non-personally identifiable use; and (c) as necessary to monitor and improve the Hosted Services. Additionally, You shall provide Indicee with usernames and passwords to access Your third party hosted data repositories to enable Indicee to access and upload the Data and Customer Data to the Hosted Services on behalf of You. Customer represents and warrants that Customer has the rights to provide Indicee with such access to Customer’s third party hosted data repositories.
4. Restrictions. Except as expressly permitted in these TOS, You shall not, and shall not permit any third party to: (i) copy, reverse engineer, reverse assemble, or otherwise attempt to discover the source code of all or any portion of the Product; (ii) reproduce, modify, translate or create derivative works of all or any portion of the Product; (iii) assist any third party to gain access, license, sublicense, resell distribute, assign, transfer or use the Product; (iv) remove or destroy any proprietary notices contained on or in the Product or any copies thereof; or (v) publish or disclose the results of any benchmarking of the Products, or use such results for Your own competing services development activities, without the prior written permission of Indicee. You are responsible for maintaining the confidentiality of Your usernames and passwords to access the Services.
5. Fees. Fees are (i) due in advance and payable in U.S. Dollars and (ii) based on the number of users and/or amount of Your customer data uploaded to the Services. Indicee’s current pricing policies and subscription fees are set forth in an order form with Indicee. You authorize Indicee to charge Your credit card for all Products selected by You. By using the Products, You consent to receiving electronic communications from Indicee. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Products. These electronic communications are part of your relationship with Indicee and you receive them as part of your purchase of the Products. You agree that any notices, agreements, disclosures or other communications that we send You electronically will satisfy any legal communication requirements, including that such communications be in writing. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with its purchases hereunder.
6. Disclaimer of Warranty. Before using the Product, you should back up all of your data and regularly back up data while using the Product. YOU AGREE THAT INDICEE AND ITS LICENSORS PROVIDE THE PRODUCTS ON AN “AS IS” AND “WHERE-AS” BASIS. NEITHER INDICEE NOR ITS LICENSORS MAKE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE PRODUCT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND INDICEE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Intellectual Property Rights and Feedback. All rights, title and interest in and to the Product and any improved, updated, modified or additional parts thereof and any deliverables provided through the performance of any training and/or consulting services, shall at all times remain the property of Indicee or its licensors. Nothing herein shall give or be deemed to give You any right, title or interest in or to the same except as expressly provided in these TOS. Indicee reserves all rights not expressly granted herein. You agree to make reasonable efforts to provide Indicee with oral feedback and/or written feedback related to Your use of the Product, including, but not limited to, a report of any errors which You discover in the Services or related documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by You to Indicee concerning the Product and any information reported automatically through the Product to Indicee (“Feedback”) will be the property of Indicee. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to Indicee and agree to assist Indicee, at Indicee’ expense, in perfecting and enforcing such rights.
8. Limitation of Liability; Allocation of Risk.
(a) Limitation of Liability. NEITHER INDICEE NOR ITS LICENSORS SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR DATA OR ANY ACTUAL OR ANTICIPATED DAMAGES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF INDICEE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL INDICEE’S DIRECT DAMAGES EXCEED FIVE HUNDRED DOLLARS (US $500.00). ADDITIONALLY, IN NO EVENT SHALL INDICEE’S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND.
(b) Allocation of Risk. You and Indicee agree that the foregoing Section 8(a) on limitation of liability and the Section 6 above on warranty disclaimer fairly allocate the risks in the TOS between the parties. You and Indicee further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 8 shall apply notwithstanding any failure of the essential purpose of these TOS or any limited remedy hereunder.
9. Term and Cancellation. All annual license periods and these TOS shall automatically renew at Indicee’s then current rates for additional annual license periods, unless either Indicee or You give the other notice of non-renewal or cancellation at least sixty (60) days before the end of the relevant annual license period by emailing email@example.com with
“Please cancel my account” in the subject line. If You cancel Your account before the end of Your current paid up annual license period, no refunds will be due for any prepaid fees for the current annual license period. If You cancel Your account before the end of Your annual license period but have not paid all of the applicable fees for the annual license period, You agree to pay for any unpaid annual license fees remaining in the current annual license period regardless of Your cancellation. Indicee may terminate these TOS and Your access to all or any part of the Products at any time, if you breach any of these TOS, with or without notice, effective immediately. Indicee or its suppliers may, at any time, without notice or liability, suspend or limit the availability of the Product in order to perform maintenance activities or in the event of Your breach of these TOS. All of Your customer data may be immediately deleted from the Services upon cancellation or termination, and this information may not be recoverable once Your account is canceled or terminated. On any termination of these TOS, Section 4 and Sections 6 through 12 shall survive.
10. Government End Users. The Product provided under these TOS is commercial computer software programs developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to You), the Product licensed in these TOS is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to You), any use, modification, reproduction, release, performance, display, or disclosure of such commercial Product or commercial Product documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of these TOS and shall be prohibited except to the extent expressly permitted by the terms of these TOS.
11. No Export. You agree and certify that neither the Product nor any other technical data received from Indicee, nor the direct product thereof, will be exported outside the jurisdiction in which you rightfully obtained the Product or re-exported except as authorized and as permitted by the laws and regulations of the jurisdiction in which You rightfully obtained the Product.
12. General Provisions. All notices permitted or required under these TOS shall be in writing and shall be delivered by personal delivery, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. These TOS shall be governed by the laws of British Columbia, Canada without regard to conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these TOS. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of these TOS shall not be affected thereby. The failure of either party to enforce any right or provision of these TOS shall not constitute a waiver of such right or provision. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These TOS may not be assigned, sublicensed or otherwise transferred by either party without the other party’s prior written consent except that either party may assign these TOS without the other party’s consent to any entity that acquires all or substantially all of such party’s business or assets, whether by merger, sale of assets, or otherwise, provided that such entity assumes and agrees in writing to be bound by all of such party’s obligations under these TOS. In the event any judicial proceeding, lawsuit or claim is brought by one party against the other party in connection with these TOS, the prevailing party shall be entitled to recover its reasonable fees and costs, including but not limited to attorneys’ fees, expert witness fees, consultant fees, and related costs and expenses. These TOS constitutes the parties’ entire understanding regarding the Product, and supersedes any and all other prior or contemporaneous agreements, whether written or oral. If You have any questions about these TOS, please contact Indicee at:firstname.lastname@example.org