BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU
AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE
OF THE ONLINE SERVICE OF INFOSTRENGTH, INC., INCLUDING OFFLINE COMPONENTS (COLLECTIVELY,
THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR
OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY
TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER
TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE
TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND NOT USE THE SERVICE.
Welcome
As part of the Service, InfoStrength, Inc. (“InfoStrength”) will provide you with
use of the Service, including a browser interface and data encryption, transmission,
access and storage. Your registration for, or use of, the Service shall be deemed
to be your agreement to abide by this Agreement including all policies published
from time to time on the InfoStrength website which are incorporated by this reference,
including but not limited to InfoStrength’s privacy and security policies. For reference,
a Definitions section is included at the end of this Agreement.
1. Privacy & Security; Disclosure
InfoStrength’s privacy and security policies may be viewed at http://www.infostrength.com. InfoStrength reserves the right
to modify its privacy and security policies in its reasonable discretion from time
to time. InfoStrength may send marketing and other non-critical Service-related
communications to individual users from time to time. Individual users may opt out
of receiving such communications at that time or at any subsequent time by following
the directions included in the communication. Note that because the Service is a
hosted, online application, InfoStrength occasionally may need to notify all users
of the Service (whether or not they have opted out as described above) of important
announcements regarding the operation of the Service. If you become a paying customer
of the Service, you agree that InfoStrength can disclose the fact that you are a
paying customer and the products that you are using.
2. License Grant & Restrictions
InfoStrength hereby grants you a non-exclusive, non-transferable, worldwide right
to use the Service, solely for your own internal business purposes, subject to the
terms and conditions of this Agreement. All rights not expressly granted to you
are reserved by InfoStrength and its licensors. You may not access the Service if
you are a direct competitor of InfoStrength, except with InfoStrength's prior written
consent. In addition, you may not access the Service for purposes of monitoring
its availability, performance or functionality, or for any other benchmarking or
competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer,
assign, distribute or otherwise commercially exploit or make available to any third
party the Service or the Content in any way; (ii) modify or make derivative works
based upon the Service or the Content; (iii) create Internet "links" to the Service
or "frame" or "mirror" any Content on any other server or wireless or Internet-based
device; or (iv) reverse engineer or access the Service in order to (a) build a competitive
product or service, (b) build a product using similar ideas, features, functions
or graphics of the Service, or (c) copy any ideas, features, functions or graphics
of the Service. User licenses cannot be shared or used by more than one individual
User but may be reassigned from time to time to new Users who are replacing former
Users who have terminated employment or otherwise changed job status or function
and no longer use the Service.
You may use the Service only for your internal business
purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages
in violation of applicable laws; (ii) send or store infringing, obscene, threatening,
libelous, or otherwise unlawful or tortious material, including material harmful
to children or violative of third party privacy rights; (iii) send or store material
containing software viruses, worms, Trojan horses or other harmful computer code,
files, scripts, agents or programs; (iv) interfere with or disrupt the integrity
or performance of the Service or the data contained therein; or (v) attempt to gain
unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall
abide by all applicable local, state, national and foreign laws, treaties and regulations
in connection with your use of the Service, including those related to data privacy,
international communications and the transmission of technical or personal data.
You shall: (i) notify InfoStrength immediately of any unauthorized use of any password
or account or any other known or suspected breach of security; (ii) report to InfoStrength
immediately and use reasonable efforts to stop immediately any copying or distribution
of Content that is known or suspected by you or your Users; and (iii) not impersonate
another InfoStrength user or provide false identity information to gain access to
or use the Service.
4. Account Information and Data
InfoStrength does not own any data, information or material that you submit to the
Service in the course of using the Service ("Customer Data"). You, and not InfoStrength,
shall have sole responsibility for the accuracy, quality, integrity, legality, reliability,
and appropriateness of, intellectual property ownership in, and right to use, all
Customer Data. InfoStrength shall not be responsible or liable for the deletion,
correction, destruction, damage, loss or failure to store any Customer Data. In
the event this Agreement is terminated (other than by reason of your breach), InfoStrength
will make available to you a file containing the Customer Data within 30 days of
termination if you so request at the time of termination. InfoStrength reserves
the right to withhold, remove and/or discard Customer Data without notice after
any breach, including, without limitation, your non-payment. Upon termination for
cause, your right to access or use Customer Data immediately ceases, and InfoStrength
shall have no obligation to maintain or forward any Customer Data.
5. Intellectual Property Ownership
InfoStrength alone (and its licensors, where applicable) shall own all right, title
and interest, including all related Intellectual Property Rights, in and to the
InfoStrength Technology, the Content, the Service and any suggestions, ideas, enhancement
requests, feedback, recommendations or other information provided by you or any
other party relating to the Service. This Agreement is not a sale and does not convey
to you any rights of ownership in or related to the Service, the InfoStrength Technology
or the Intellectual Property Rights owned by InfoStrength. The InfoStrength name,
the InfoStrength logo, and the product names associated with the Service are trademarks
of InfoStrength or third parties, and no right or license is granted to use them.
6. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges,
and billing terms in effect at the time a fee or charge is due and payable. The
initial charges will be equal to the current number of total User licenses requested
times the User license fee currently in effect. Charges for renewal terms will be
equal to the then current number of total User licenses times the then current,
generally applicable license fee. Although products are licensed for a period of
one year, payments will be charged monthly in advance unless otherwise mutually
agreed upon in an Order Form or through the Online Order Center. All payment obligations
are noncancelable and all amounts paid are nonrefundable. You are responsible for
paying for all User licenses ordered for the entire License Term, whether or not
such User licenses are actively used. You must provide InfoStrength with valid credit
card or approved purchase order information as a condition to signing up for the
Service. An authorized License Administrator may add licenses by executing an additional
written Order Form or using the Online Order Center. Added licenses will be subject
to the following: (i) added licenses will be coterminous with the preexisting License
Term (either Initial Term or renewal term); (ii) the license fee for the added licenses
will be the then current, generally applicable license fee; and (iii) licenses added
in the middle of a billing month will be charged in full for that billing month.
InfoStrength reserves the right to modify its fees and charges and to introduce
new charges at any time, upon at least 30 days prior notice to you, which notice
may be provided by e-mail. All pricing terms are confidential, and you agree not
to disclose them to any third party.
7. Billing and Renewal
InfoStrength charges and collects in advance for use of the Service. InfoStrength
will automatically renew and bill your credit card or issue an invoice to you each
month. The renewal charge will be equal one-twelfth of the product of the then-current
number of total User licenses times the license fee in effect during the prior term,
unless InfoStrength has given you at least 30 days prior written notice of a fee
increase, which shall be effective for the first full month of usage after InfoStrength
sends the notice. Fees for other services will be charged on an as-quoted basis.
InfoStrength's fees are exclusive of all taxes, levies, or duties imposed by taxing
authorities, and you shall be responsible for payment of all such taxes, levies,
or duties, excluding only United States (federal or state) taxes based solely on
InfoStrength's income.
You agree to provide InfoStrength with complete and accurate billing and contact
information. This information includes your legal company name, street address,
e-mail address, and name and telephone number of an authorized billing contact and
License Administrator. You agree to update this information within 30 days of any
change to it. If the contact information you have provided is false or fraudulent,
InfoStrength reserves the right to terminate your access to the Service in addition
to any other legal remedies. Unless InfoStrength in its discretion determines otherwise
all entities will be billed in U.S. dollars. If you believe your bill is incorrect,
you must contact us in writing within 60 days of the invoice date of the invoice
containing the amount in question to be eligible to receive an adjustment or credit.
8. Non-Payment and Suspension
In addition to any other rights granted to InfoStrength herein, InfoStrength reserves
the right to suspend or terminate this Agreement and your access to the Service
if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts
in arrears) are subject to interest of 1.5% per month on any outstanding balance,
or the maximum permitted by law, whichever is less, plus all expenses of collection.
You will continue to be charged for User licenses during any period of suspension.
If you or InfoStrength initiates termination of this Agreement, you will be obligated
to pay the balance due on your account computed in accordance with the Charges and
Payment of Fees section above. You agree that InfoStrength may charge such unpaid
fees to your credit card or otherwise bill you for such unpaid fees. InfoStrength
reserves the right to impose a reconnection fee in the event you are suspended and
thereafter request access to the Service. You agree and acknowledge that InfoStrength
has no obligation to retain Customer Data and that such Customer Data may be irretrievably
deleted if your account is 30 days or more delinquent.
9. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. Upon the expiration of the Initial
Term, this Agreement will automatically renew for one year at InfoStrength's then
current fees. Either party may terminate this Agreement or reduce the number of
licenses, effective only upon the expiration of the then current License Term, by
notifying the other party in writing at least thirty (30) days prior to the date
of the invoice for the following term. In the case of free trials, notifications
provided through the Service indicating the remaining number of days in the free
trial shall constitute notice of termination. In the event this Agreement is terminated
(other than by reason of your breach), InfoStrength will make available to you a
file of the Customer Data within 30 days of termination if you so request at the
time of termination. You agree and acknowledge that InfoStrength has no obligation
to retain the Customer Data, and may delete such Customer Data, more than 30 days
after termination.
10. Termination for Cause
Any breach of your payment obligations or unauthorized use of the InfoStrength Technology
or Service will be deemed a material breach of this Agreement. InfoStrength, in
its sole discretion, may terminate your password, account or use of the Service
if you breach or otherwise fail to comply with this Agreement. In addition, InfoStrength
may terminate a free account at any time in its sole discretion. You agree and acknowledge
that InfoStrength has no obligation to retain the Customer Data, and may delete
such Customer Data, if you have materially breached this Agreement, including but
not limited to failure to pay outstanding fees, and such breach has not been cured
within 30 days of notice of such breach.
11. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to
enter into this Agreement. InfoStrength represents and warrants that it will provide
the Service in a manner consistent with general industry standards reasonably applicable
to the provision thereof and that the Service will perform substantially in accordance
with the online InfoStrength help documentation under normal use and circumstances.
You represent and warrant that you have not falsely identified yourself nor provided
any false information to gain access to the Service and that your billing information
is correct.
12. Disclaimer of Warranties
INFOSTRENGTH AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS
TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY
OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. InfoStrength AND ITS LICENSORS DO
NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY,
UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE,
SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C)
ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES,
INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE
WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED,
OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF
VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO
YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT
OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW BY InfoStrength AND ITS LICENSORS.
13. Internet Delays
InfoStrength'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS
INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. InfoStrength
IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING
FROM SUCH PROBLEMS.
14. Mutual Indemnification
You shall indemnify and hold InfoStrength, its licensors and each such party's parent
organizations, subsidiaries, affiliates, officers, directors, employees, attorneys
and agents harmless from and against any and all claims, costs, damages, losses,
liabilities and expenses (including attorneys' fees and costs) arising out of or
in connection with: (i) a claim alleging that use of the Customer Data infringes
the rights of, or has caused harm to, a third party; (ii) a claim, which if true,
would constitute a violation by you of your representations and warranties; or (iii)
a claim arising from the breach by you or your Users of this Agreement, provided
in any such case that InfoStrength (a) gives written notice of the claim promptly
to you; (b) gives you sole control of the defense and settlement of the claim (provided
that you may not settle or defend any claim unless you unconditionally release InfoStrength
of all liability and such settlement does not affect InfoStrength's business or
Service); (c) provides to you all available information and assistance; and (d)
has not compromised or settled such claim.
InfoStrength shall indemnify and hold you and your parent organizations, subsidiaries,
affiliates, officers, directors, employees, attorneys and agents harmless from and
against any and all claims, costs, damages, losses, liabilities and expenses (including
attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging
that the Service directly infringes a copyright, a U.S. patent issued as of the
Effective Date, or a trademark of a third party; (ii) a claim, which if true, would
constitute a violation by InfoStrength of its representations or warranties; or
(iii) a claim arising from breach of this Agreement by InfoStrength; provided that
you (a) promptly give written notice of the claim to InfoStrength; (b) give InfoStrength
sole control of the defense and settlement of the claim (provided that InfoStrength
may not settle or defend any claim unless it unconditionally releases you of all
liability); (c) provide to InfoStrength all available information and assistance;
and (d) have not compromised or settled such claim. InfoStrength shall have no indemnification
obligation, and you shall indemnify InfoStrength pursuant to this Agreement, for
claims arising from any infringement arising from the combination of the Service
with any of your products, service, hardware or business process(s).
15. Limitation of Liability
IN NO EVENT SHALL INFOSTRENGTH’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY
PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING
RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE
TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL
OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS,
USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS
SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR
FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY,
ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH
DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. Certain states and/or jurisdictions do not allow
the exclusion of implied warranties or limitation of liability for incidental, consequential
or certain other types of damages, so the exclusions set forth above may not apply
to you.
16. Local Laws and Export Control
This site provides services and uses software and technology that may be subject
to United States export controls administered by the U.S. Department of Commerce,
the United States Department of Treasury Office of Foreign Assets Control, and other
U.S. agencies. The user of this site ("User") acknowledges and agrees that the site
shall not be used, and none of the underlying information, software, or technology
may be transferred or otherwise exported or re-exported to countries as to which
the United States maintains an embargo (collectively, "Embargoed Countries"), or
to or by a national or resident thereof, or any person or entity on the U.S. Department
of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's
Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed
Countries and Designated Nationals are subject to change without notice. By using
the Service, you represent and warrant that you are not located in, under the control
of, or a national or resident of an Embargoed Country or Designated National. You
agree to comply strictly with all U.S. export laws and assume sole responsibility
for obtaining licenses to export or re-export as may be required. This site may
use encryption technology that is subject to licensing requirements under the U.S.
Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation
(EC) No. 1334/2000.
InfoStrength and its licensors make no representation that the Service is appropriate
or available for use in other locations. If you use the Service from outside the
United States, you are solely responsible for compliance with all applicable laws,
including without limitation export and import regulations of other countries. Any
diversion of the Content contrary to United States law is prohibited. None of the
Content, nor any information acquired through the use of the Service, is or will
be used for nuclear activities, chemical or biological weapons, or missile projects,
unless specifically authorized by the United States government for such purposes.
17. Notice
InfoStrength may give notice by means of a general notice on the Service, electronic
mail to your e-mail address on record in InfoStrength's account information, or
by written communication sent by first class mail or pre-paid post to your address
on record in InfoStrength's account information. Such notice shall be deemed to
have been given upon the expiration of 48 hours after mailing or posting (if sent
by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
You may give notice to InfoStrength (such notice shall be deemed given when received
by InfoStrength) at any time by any of the following: letter sent by confirmed facsimile
to InfoStrength at (919) 313-3979; letter delivered by nationally recognized overnight
delivery service or first class postage prepaid mail to InfoStrength, Inc. at the
following address: 4220 Apex Highway, Suite 200, Durham, NC 27713, addressed to
the attention of: Chief Financial Officer.
18. Modification to Terms
InfoStrength reserves the right to modify the terms and conditions of this Agreement
or its policies relating to the Service at any time, effective upon posting of an
updated version of this Agreement on the Service. You are responsible for regularly
reviewing this Agreement. Continued use of the Service after any such changes shall
constitute your consent to such changes.
19. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of
InfoStrength but may be assigned without your consent by InfoStrength to (i) a parent
or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported
assignment in violation of this section shall be void. Any actual or proposed change
in control of you that results or would result in a direct competitor of InfoStrength
directly or indirectly owning or controlling 50% or more of you shall entitle InfoStrength
to terminate this Agreement for cause immediately upon written notice.
20. General
This Agreement shall be governed by North Carolina law and controlling United States
federal law, without regard to the choice or conflicts of law provisions of any
jurisdiction, and any disputes, actions, claims or causes of action arising out
of or in connection with this Agreement or the Service shall be subject to the exclusive
jurisdiction of the state and federal courts located in Raleigh, North Carolina.
No text or information set forth on any other purchase order, preprinted form or
document (other than an Order Form, if applicable) shall add to or vary the terms
and conditions of this Agreement. If any provision of this Agreement is held by
a court of competent jurisdiction to be invalid or unenforceable, then such provision(s)
shall be construed, as nearly as possible, to reflect the intentions of the invalid
or unenforceable provision(s), with all other provisions remaining in full force
and effect. No joint venture, partnership, employment, or agency relationship exists
between you and InfoStrength as a result of this agreement or use of the Service.
The failure of InfoStrength to enforce any right or provision in this Agreement
shall not constitute a waiver of such right or provision unless acknowledged and
agreed to by InfoStrength in writing. This Agreement, together with any applicable
Order Form, comprises the entire agreement between you and InfoStrength and supersedes
all prior or contemporaneous negotiations, discussions or agreements, whether written
or oral, between the parties regarding the subject matter contained herein.
21. Definitions
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
"Agreement" means these online terms of use, any Order Forms, whether written or
submitted online via the Online Order Center, and any materials available on the
InfoStrength website specifically incorporated by reference herein, as such materials,
including the terms of this Agreement, may be updated by InfoStrength from time
to time in its sole discretion; "Content" means the audio and visual information,
documents, software, products and services contained or made available to you in
the course of using the Service; "Customer Data" means any data, information or
material provided or submitted by you to the Service in the course of using the
Service; "Effective Date" means the earlier of either the date this Agreement is
accepted by selecting the "I Accept" option presented on the screen after this Agreement
is displayed or the date you begin using the Service; "Initial Term" means the contract
term, beginning on the contract start date and ending on the contract end date,
specified on the applicable Order Form; "Intellectual Property Rights" means unpatented
inventions, patent applications, patents, design rights, copyrights, trademarks,
service marks, trade names, domain name rights, mask work rights, know-how and other
trade secret rights, and all other intellectual property rights, derivatives thereof,
and forms of protection of a similar nature anywhere in the world; "License Administrator(s)"
means those Users designated by you who are authorized to purchase licenses online
using the Online Order Center or by executing written Order Forms and to create
User accounts and otherwise administer your use of the Service; "License Term(s)"
means the period(s) during which a specified number of Users are licensed to use
the Service pursuant to the Order Form(s); "Order Form(s)" means the form evidencing
the initial subscription for the Service and any subsequent order forms submitted
online or in written form, specifying, among other things, the number of licenses
and other services contracted for, the applicable fees, the billing period, and
other charges as agreed to between the parties, each such Order Form to be incorporated
into and to become a part of this Agreement (in the event of any conflict between
the terms of this Agreement and the terms of any such Order Form, the terms of this
Agreement shall prevail); "Online Order Center" means InfoStrength's online application
that allows the License Administrator designated by you to, among other things,
add additional Users to the Service; "InfoStrength" means InfoStrength, having its
principal place of business at 4220 Apex Highway, Suite 200, Durham, NC 27713; "InfoStrength
Technology" means all of InfoStrength's proprietary technology (including software,
hardware, products, processes, algorithms, user interfaces, know-how, techniques,
designs and other tangible or intangible technical material or information) made
available to you by InfoStrength in providing the Service; "Service(s)" means the
specific packages of InfoStrength identified during the ordering process, developed,
operated, and maintained by InfoStrength, accessible via http://www.infostrength.com or another designated web site
or IP address, or ancillary online or offline products and services provided to
you by InfoStrength, to which you are being granted access under this Agreement,
including the InfoStrength Technology and the Content; "User(s)" means your employees,
representatives, consultants, contractors or agents who are authorized to use the
Service and have been supplied user identifications and passwords by you (or by
InfoStrength at your request).
Questions or Additional Information: If you have questions regarding this Agreement
or wish to obtain additional information, please send an e-mail to
info@infostrength.com.