Inspirus Services Agreement

INSPIRUS SERVICES AGREEMENT
Updated April 22, 2020

 Please read this Agreement carefully before using these Services.¬† By creating an account, Customer confirms that it has read, accepts and agrees to be bound by the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that he/she has the necessary authority to enter into the Agreement and to bind such entity to all of the terms and conditions set forth herein.

Inspirus‚ direct competitors are prohibited from accessing the Services, except where Inspirus‚ provides prior written consent. In addition, the Services may not be accessed for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.

1.     Definitions

The following terms have the following meanings:

Account Creator means the Administrator that created the Platform Account and agreed to the Agreement on behalf of, or as, the Customer.

Administrator means the individual(s) that has administrator rights in the Platform Account.

Agreement means this Services Agreement, as amended from time to time, and includes the terms of any exhibits, schedules, or Inspirus policies incorporated herein by reference and any terms and conditions that may appear on the account creation web page or presented or made available to Customer on the Platform. Any such additional terms and conditions are incorporated into this Agreement by reference.

Confidential Information means all commercially valuable, proprietary and confidential information of a Party, including but not limited to all non-public business, product, technology and marketing information that is: (a) disclosed to, accessed by or otherwise learned by the other Party in connection with the provision (or potential provision) of Services to Customer by Inspirus; and (b) marked or indicated as confidential (or with words of similar meaning) or would reasonably be expected to be confidential.

Customer means the company or other legal entity that the Account Creator represents in accepting the Agreement. If the Account Creator is not affiliated with a company or a legal entity, the Customer is the individual creating the Platform Account. For example, if the Account Creator signed up using a personal email address and invited friends to join the Platform Account, the individual signing up is the Customer. If the Account Creator signed up using a corporate email address and invited colleagues to join, the Account Creator‚Äôs company is the Customer and can exercise its rights under the Agreement.

Customer Data means the data, information, or material inputted by the Customer for the purpose of using the Services or facilitating Users‚Äô use of the Services.

Documentation means the description of the features and functionality available for Customer‚Äôs selected Services, as updated from time to time, and accessible through the Administrator‚Äôs account in the Platform.

Fees means any amounts due to Inspirus for any Services provided excluding Points purchased and any applicable Taxes.

Financial Transaction Data means the data related to all monetary transactions in the Platform.

Gift Cards & eGift Cards means the then-current listing of gift certificates from Merchants that may be included in the Platform. An up-to-date Gift Certificate listing will be maintained on the Web Site.

Intellectual Property Rights means (a) any and all proprietary rights provided under (i) patent law, (ii) copyright law, (iii) trademark law, (iv) design patent or industrial design law, (v) semi-conductor chip or mask work, or (vi) any other statutory provision of common law principle applicable to this Agreement including trade secret law which may provide a right in either ideas, formulae, algorithms, concepts, inventions or now-how generally, or the expression of use of such ideas, formulae, algorithms, concepts, inventions or know how; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.

Laws means all applicable laws, ordinances, rules, regulations and court (or other governmental) orders, whether international, federal, state, provincial or local.

Merchandise means the then-current listing of products from distributors that may be included in the Platform. An up-to-date Merchandise listing will be maintained on the Web Site.

Merchants means the then-current vendors that may be included on the Platform. Inspirus may discontinue or remove existing Merchants and add new Merchants from time to time, in its sole discretion.

Party means either Inspirus or Customer. For clarity, use of ‚ÄúParties‚Äù refers to both Inspirus and Customer.

Payment Method means the credit card details provided by Administrator and/or individual Users and/or stored in the Administrator‚Äôs or User‚Äôs online payment portal in the Platform in order to pay for the Subscription Fees and/or to purchase Points, as applicable.

Platform means the portal instance of the Inspirus program that is accessible by Customer and its Users through the Platform Account and hosted by Inspirus through which Points are given and Rewards are ordered and delivered. The term ‚ÄúPlatform‚Äù shall include any modifications or enhancements thereto, or new versions thereof.

Platform Account means the account created by Customer that allows invited Users to access the Trial or Subscription Services, as applicable, through the Platform.

Point means a unit purchased by Customer and/or by an individual User from Inspirus to use and allow for Rewards to be given to Users.

Reward means each item of Merchandise or Gift Cards & eGift Cards offered to Users through the Platform.

Services means the services to be provided by Inspirus pursuant to this Agreement (including creation of a Platform Account and access to the Platform) which may be provided to Customer under a Free Trial or as Subscription Services. The applicable Services features and functionalities available to Customer and its Users are determined by the plan selected and set forth in the Documentation.

Service Data means quantitative data derived from the use of the Services for industry analysis, benchmarking, analytics, marketing, and other business purposes.

Subscription Services means services that Customer purchases on the Platform for a Subscription Fee, as distinguished from those provided as Trial Services. The features and functionalities available to Customer and its Users as part of the Subscription Services are determined by the subscription plan purchased and further set forth in the applicable Documentation (hereinafter a “Subscription Plan”).

Taxes has the meaning set forth in Section 4.6

Trial Services means the services offered as a trial, without a Subscription Fee, as further set forth in the applicable Documentation.

User Data means data entered by Users related to use of the Services including, as applicable, the purchase of Points, award recognition and approval; such data shall be handled in accordance with applicable data protection and privacy laws and Inspirus' Privacy Policy.

Users means the Administrator and the individuals invited to access and use the Platform.

Web Site means the specific content and application(s) maintained on the web site(s) hosted by Inspirus or by Inspirus‚Äô licensors in respect of the Platform. The Web Site may be modified, updated or upgraded to a new release version, including, but not limited to, adding, removing or modifying the functionality or features of the Web Site

Inspirus means Inspirus, LLC a Texas limited liability company with offices at 100 North Rupert Street, Fort Worth, Texas 76107.

2.     Term and Termination 

2.1       Term of the Agreement. This Agreement commences on the date Customer first accepts it (‚ÄúEffective Date‚Äù) and continues until terminated in accordance with the terms set forth herein or until all Trial Services or Subscriptions Services ordered hereunder have been terminated or expired, as applicable (‚ÄúAgreement Term‚Äù).

2.2       Term of Trial Services. The term of the Trial Services shall commence on the date Customer first creates a Platform Account and shall continue until terminated in accordance with the terms set forth herein or in the event Customer upgrades to a Subscription Services account (‚ÄúTrial Services Term‚Äù).

2.3       Term of Subscription Services. The term of the Subscription Services shall commence on the date Customer gains access to the Subscription Services and shall continue as long as Customer has a valid, paid Subscription Plan or until earlier terminated in accordance with the terms set forth herein (‚ÄúSubscription Services Term‚Äù).

2.4       Termination of the Agreement. The Agreement and all Services may be terminated in the event of one of the following:

2.4.1     Customer may terminate this Agreement and all Services at any time without cause in accordance with the cancellation instructions in the Platform. Inspirus may terminate the Agreement and all Services without cause in accordance with the notice requirements set forth herein;

2.4.2     Either Party has materially breached any of its obligations pursuant to this Agreement and: (i) if Inspirus is the defaulting Party, and if Inspirus fails to cure such breach within 30 days after receipt of written notice thereof by Customer, Customer may terminate this Agreement as of the date specified by Customer in a termination notice to Inspirus; or (ii) if Customer is the defaulting Party, Inspirus may terminate this Agreement immediately upon discovery of such breach;

2.4.3     If Inspirus believes the Services are being used by Customer or any of its Users in violation of applicable Laws, including but not limited to applicable anti-money laundering laws, or directives issued by the Office of Foreign Asset Control, then Inspirus may terminate the Agreement immediately without prior notice to Customer; or

2.4.4     The Agreement will automatically terminate in the event (i) Customer accepts a subsequent Inspirus Services Agreement in order to access the Services.

2.5       Effect of Termination. Any termination or expiration of the Agreement shall be accomplished without any termination fees or other penalty and shall not relieve or release either Customer or Inspirus from any rights, liabilities or obligations that may have accrued under the Agreement. In the event of any termination or expiration, Inspirus shall be entitled to payment for Services provided in accordance with the Agreement prior to the effective date of termination or expiration but shall not be entitled to payment for Services to be provided after the effective date of termination or expiration except as otherwise agreed by the Parties. In addition, on termination of the Agreement for any reason:

2.5.1        All licenses granted under this Agreement shall immediately terminate;

2.5.2        All unawarded Points in Customer's account as of the effective date of termination shall be forfeited and Customer shall not be entitled to a refund for the same;2.5.3        Except as otherwise set forth in Section 10.7 below, upon Customer's request upon termination or expiration of the Agreement, Inspirus will (i) return or otherwise make available for retrieval Customer Data then available in the Platform or (ii) obfuscate or otherwise render inaccessible all Customer Data in the Platform to the extent Customer Data is no longer needed by Inspirus for the purposes set forth herein, to pursue legitimate business interests, for audit purposes or to comply with legal obligations (including to resolve disputes and enforcing the Agreement), or unless such action is otherwise prohibited by applicable data protection laws or Inspirus‚Äô data retention obligations; and

2.5.4        The accrued rights of the parties at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.

3.     Use of the Platform

3.1       General. Inspirus will (i) make the Platform available to Customer for use pursuant to this Agreement and the applicable Documentation and (ii) provide the Services in accordance with applicable Laws related to Inspirus‚Äô provision of its Services to its customers generally and subject to Customer‚Äôs use of the Services in accordance with this Agreement, and the Documentation. Access and use rights for the Platform will commence on the start of the Trial Services Term or Subscription Services Term, as applicable, and for the Fees as set forth in the Platform, as applicable, and will continue in accordance with the terms set forth herein.

3.2       Authorized Users. Customer will receive access to the Platform for the number of Users as determined by the applicable Services plan selected.

3.3       Content. Customer will be responsible for the content of all communications sent using the Platform. Customer will not use the Platform to communicate any message or material that (i) is libelous, harmful to minors or obscene; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense under any Laws. Inspirus will use commercially reasonable efforts to provide Customer with the opportunity to remove or disable access to any offending material or content.

3.4       Non-Permitted Activities. The Customer shall not, except as may be allowed by any applicable Laws which are incapable of exclusion by agreement between the Parties, and except to the extent expressly permitted under this Agreement:

 3.4.1        copy or attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the software contained on the Platform and/or Services (as applicable) in any form or media or by any means;

3.4.2        tamper with the security of the Platform or Inspirus‚Äô other customer accounts;

3.4.3        attempt to probe, scan or test the vulnerability of the Platform, breach the security or authentication measures of the Platform without proper authorization or willfully render any part of the Platform unusable;

3.4.4        access data on the Platform not intended for the Customer or log into a service or account on the Platform that Customer is not authorized to access;

3.4.5        attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software contained on the Platform;

3.4.6        access all or any part of the Services in order to build a product or service which competes with the Services;

3.4.7        use the Services to provide services to third parties;

3.4.8        use the Services in violation of applicable Laws including but not limited to applicable anti-money laundering laws, or directives issued by the Office of Foreign Asset Control;

3.4.9        license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit or otherwise make the Services available to any third party except the Users;

3.4.10      attempt to obtain, or assist third parties in obtaining, access to the Services, other than as permitted hereunder;

3.4.11      permit any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Inspirus;

3.4.12      permit use of the Platform by no more than the authorized number of Users as specified in the applicable Services plan; or

3.4.13      provide a Payment Method for the payment of Subscription Fees or purchase of Points unless Administrator and/or User, as applicable, is the authorized cardholder.

3.5       Customer Responsibilities. Customer shall:

3.5.1        provide Inspirus with all necessary co-operation in relation to this Agreement;

3.5.2        comply with all applicable Laws and regulations with respect to its activities under this Agreement;

3.5.3        ensure that Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any User‚Äôs breach of this Agreement;

3.5.4        ensure that its network and systems comply with the minimum relevant standards provided by Inspirus from time to time;

3.5.5        ensure that all login details and passwords are securely maintained;

3.5.6        use commercially reasonable efforts to prevent unauthorized access to or use of Services and notify Inspirus promptly of any such unauthorized access or use;

3.5.7        be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Inspirus data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer‚Äôs network connections or telecommunications links or caused by the internet;

3.5.8        be responsible to relay terms affecting Users to said Users and for informing Users of all Customer policies and practices that are relevant to the User‚Äôs use of the Services;

3.5.9        provide accurate Customer Data to Inspirus. Inspirus shall not be responsible for errors in Customer Data;

3.5.10      ensure the transfer and processing of Customer Data under this Agreement is lawful; and

3.5.11      respond to and resolve any dispute with Users relating to or based on Customer Data, the Services or Customer‚Äôs fulfilment or failure to fulfil any obligations as set forth herein

3.6       Additional Rights.

3.6.1        Identity Authorization. Customer and all Users authorize Inspirus to make any inquiries Inspirus may consider necessary to validate or authenticate Customer‚Äôs or a User‚Äôs identity and/or Payment Method. This may include requesting further information and/or documentation about use of the Services, a User‚Äôs identity, or requiring Customer or User to take steps to confirm ownership of an email address provided, and/or verifying information provided against third party databases or through other sources as necessary.

3.6.2        Account Review. Inspirus reserves the right to review Customer‚Äôs and Users‚Äô use of the Services from time to time. This review may check for, among other things, suspicious or illegal activity, and whether Customer‚Äôs or a User‚Äôs use of the Services complies with the terms of this Agreement. Reviews may result in, among other things: (i) delayed, blocked or cancelled Points Purchases, (ii) suspension of Customer‚Äôs and/or User‚Äôs access to the Platform as set forth below, and/or (iii) termination of the Agreement.

3.7       Suspension. In the event of any breach or threatened breach of the Agreement by Customer or any User (including non-payment of fees), without limiting Inspirus‚Äô other rights and remedies, Inspirus may immediately suspend Customer‚Äôs and all Users‚Äô access to the Platform and the applicable Services.

4.     Fees and Payment Terms

4.1       Trial Services Period.¬† During the Trial Services period there will be no additional Fees.¬† A Customer may choose to upgrade to a Subscription Services plan during the Trial Services period.

4.2       Fees.

4.2.1        Subscription Fees. Customer shall be responsible for the monthly subscription fees as specified on the online payment portal in the Platform based on the Subscription Plan selected and the number of Users purchased (‚ÄúSubscription Fee‚Äù). All Subscription Fee charges are made monthly in advance. Customer authorizes Inspirus to immediately charge the Payment Method provided for the initial monthly Subscription Fee. Unless the Subscription Services are cancelled before the next monthly billing cycle as set forth in Section 2.4 above or are otherwise terminated in accordance with the terms set forth herein, all subsequent Subscription Fees will continue to be billed on a monthly basis to Customer‚Äôs designated Payment Method. The Subscription Fees charged each month will remain the same as the Subscription Fees charged during the immediately preceding month unless (i) Inspirus advises Customer of a change in Subscription Fees, (ii) the Subscription Services are modified, or upgraded, or (iii) in the event of expiration of a Promotional Subscription Period as set forth below.

4.2.2        Change in Subscription Fees. Inspirus reserves the right to change the Subscription Fees from time to time. If Subscription Fees are changed, then Inspirus will provide Customer with one (1) month‚Äôs prior notice of such change in accordance with the notice provisions set forth herein. If Customer does not agree to this variation, Customer may cancel the Subscription Services within fourteen (14) days of the changes coming into effect. If Customer does not cancel the Subscription Services in accordance with the foregoing, Customer will be deemed to have accepted the variation and the Subscription Services will continue for the new Subscription Fee amount.

4.2.3        Upgrading Services. Customer may, at any time during the Agreement Term, upgrade its existing Services plan (for example, upgrade from Trial Services to a Subscription Services plan) through the online payment portal in the Platform. Any new Subscription Fees or changes to existing Subscription Fees resulting from such upgrade will be reflected in the next monthly billing cycle. For the avoidance of doubt, and unless otherwise set forth in the Platform, Customer cannot ‚Äúdowngrade‚Äù any of the Services. For example, Customer cannot, after purchasing Subscription Services, downgrade to Trial Services.

4.2.4        Changing User Count. Customer may, at any time during the Subscription Services Term, increase or decrease the number of Users with rights to access the Platform as follows:

4.2.4.1    Changing User Count. Customer may increase the number of Users with access to and use of the Platform for the monthly Subscription Fee amount set forth in the online payment portal. Upon Customer‚Äôs purchase of additional Users, the total authorized User count will automatically increase and Inspirus will charge Customer the increased Subscription Fee amount in the next monthly billing cycle.

4.2.4.2    Decreasing Users. If Customer reduces the number of Users under its Subscription Plan, no rebate will be given for the period of decreased Users for the remainder of the then-current billing cycle, instead, Inspirus will charge Customer the decreased Subscription Fee amount in the next monthly billing cycle.

 

4.2.5        Trial Services. Inspirus may offer promotional trials, offers, coupons or discounts for initial access to Subscription Services for a designated period of time as set forth on the Customer‚Äôs Platform. Once the Trial Services is over, Customer will be required to pay the Subscription Fees for continued access to the Subscription Services at the then-current rates for the selected Subscription Plan as set forth on the Platform in accordance with Section 4.2(a) above.

4.3       Payment. Customer and/or Users shall provide Inspirus with a valid Payment Method in order to pay for the Points and any Fees due hereunder. Customer and Users are responsible for keeping the payment information provided complete and accurate and shall update the Payment Method in the event of any changes to such information. All payment obligations due hereunder are non- cancelable and all Points Purchases and Fees paid are non-refundable unless otherwise set forth herein.

4.4       Overdue Subscription Fees. In the event that Customer‚Äôs Payment Method cannot be processed after continued attempts for seven (7) days from the first attempt, Inspirus may, without limiting its other rights and remedies, suspend the Subscription Services and de-activate all Users until all overdue amounts are paid in full or terminate the Agreement in accordance with the terms set forth herein.

4.5       Payment Disputes. Inspirus will not exercise its rights under Section 4.4 above or other of its rights to suspend Subscription Services as set forth herein due to nonpayment of Subscription Fees if Customer is disputing the applicable Subscription Fee charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

4.6       Taxes. The fees paid under this Agreement are exclusive of all Taxes, as defined. Customer will pay all Taxes or other charges levied in connection with the Services acquired hereunder, including import duties, sales, services, use and value-added taxes, and withholding taxes (collectively, ‚ÄúTaxes‚Äù) that are imposed by or under the authority of any government or any political subdivision thereof.

5.     Points

5.1       Points Value. Points as purchased by Customer and/or individual Users and allocated to Users, have no independent economic or cash surrender value other than pursuant to redemption by Users solely in connection with the Platform. Points are only redeemable by Users for Rewards using the Platform.

5.2       Allocation. Points, once allocated to Users, are the property of the User and cannot be reclaimed by Customer even if the Points are allocated by Customer or User in error. Further, Inspirus shall not be responsible for any damages, losses or liability to Customer or Users resulting from unauthorized access to Customer‚Äôs or a User‚Äôs account and/or for any refunds for Points Purchases made through such unauthorized access.

5.3       Points Redemption. Points are available for redemption at any time during the Agreement Term and while the recipient is a User of the program

5.4       Rewards Inspirus will offer its Reward catalog to the Customer. The Reward catalog will consist of merchandise, retail store and experience gift cards, and charitable donations. Inspirus reserves the right to change the price of e-commerce catalog offerings subject to its agreements with specific Merchants or Merchandise providers inclusive of charges for delivery to a User‚Äôs address, as applicable.

5.5       Merchandise. In the event that Users select Merchandise from the Platform, Inspirus will make available to the Users the manufacturers' warranties for such Merchandise to the extent such warranties are available. Such warranties are provided without recourse to Inspirus. In the event of a Merchandise return, Inspirus does not take title to returned items until the item arrives at our fulfillment center. At Inspirus‚Äô discretion, a refund may be issued without requiring a return. In this situation, Inspirus does not take title to the refunded item.

6.     Support for Subscription Services

6.1       Support. Inspirus shall provide technical support for the Platform based on the Subscription Plan ordered by the Customer. The level of support provided shall be set forth in the applicable Documentation.

6.2       Support during Trial Services Period. Inspirus shall provide detailed self-service options including a comprehensive knowledge base for Users and for Administrators. Additionally, Inspirus shall provide chat and email-based support.

7.     Marketing

7.1       Marketing. During the Agreement Term, Customer hereby agrees that Inspirus may include Customer‚Äôs name and logo as a customer who uses the Services in Inspirus‚Äô marketing materials.

8.     Confidentiality

8.1       Generally. Each Party shall not: (i) access or use the other Party‚Äôs Confidential Information except as necessary for it to perform its obligations or exercise its rights; or (ii) disclose the other Party‚Äôs Confidential Information to, or allow access to the other Party‚Äôs Confidential Information by, any individuals or third parties except as provided in Section 8.2. In addition, each Party shall protect the other Party‚Äôs Confidential Information with at least the same level of care as it protects its own similar confidential information, but not less than a commercially reasonable level of care.

8.2       Permitted Disclosure. The receiving Party may disclose relevant aspects of the other Party‚Äôs Confidential Information to the employees, directors, professional advisors (including accountants), suppliers and other agents of the receiving Party to the extent such disclosure is necessary for the performance of their obligations to such Party, provided, however, such Party causes the Confidential Information to be held in confidence by the recipient to the same extent and in the same manner as required under this Agreement. In addition, the receiving Party may disclose Confidential Information of the other Party to the extent required to comply with any Laws; provided, however, such Party provides the other Party with prior notice of any such disclosure to the extent permitted. It is expressly acknowledged and agreed by the Parties that Inspirus shall have the right to retain a copy of Financial Transaction Data in accordance with Inspirus‚Äô data retention policy and, further, shall have the right to provide such data to its advisors and agents subject to the confidentiality restrictions herein.

8.3       Exclusions. The restrictions on use and disclosure in this Article 8 shall not apply to Confidential Information that is: (i) already known by the receiving Party at the time of receipt, as demonstrated by prior records; (ii) known to the public through no fault of the receiving Party; (iii) lawfully received by the receiving Party from a third party, where the third party does not require the information to be held in confidence; or (iv) developed by the receiving Party independently of disclosure by or receipt from the other Party.

8.4       Return of Materials. Upon a Party‚Äôs request (and at the end of the Agreement Term), as directed by such Party, and in accordance with the terms set forth herein, the other Party shall promptly delete or, upon prior request, return all Confidential Information and all written materials that contain, summarize, or describe any Confidential Information, except to the extent there is a license to such materials under this Agreement. The foregoing sentence shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof which must be stored by the receiving Party, its affiliates or its advisors according to the terms set forth herein, or provisions of mandatory law, provided that such Confidential Information or copies thereof shall be subject to the confidentiality obligations in this Article 8.

8.5       Unauthorized Acts. Each Party shall immediately notify the other of any unauthorized possession, use or knowledge of the other‚Äôs Confidential Information of which such Party is aware.

8.6       Equitable Relief. The receiving Party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the disclosing Party for which damages alone might not be a sufficient remedy and therefore, upon any such disclosure by the receiving Party, the disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law or equity

9.     Intellectual Property

9.1       Proprietary Rights. Customer is permitted to access and use the Platform, but this Agreement is not otherwise an agreement for the sale or license of any software. The Customer acknowledges and agrees that Inspirus and/or its licensors own all Intellectual Property Rights in the Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade-marks (whether registered or unregistered), or any other rights or licenses in respect of the Services.

9.2       Platform and Other Intellectual Property. Inspirus grants Customer a global, non-exclusive, nontransferable license for Customer and its Users to access and use the Platform for the Agreement Term.

9.3       Suggestions. Inspirus shall have a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferrable (only to a successor in interest by way of merger, reorganization or sale of all or substantially all assets or equity), sublicensable license to use, copy, modify, or distribute, including by incorporating into the Services, any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Services.

10.  Customer Data & User Data

10.1     Customer Grant. To the extent applicable to the Services utilized by Customer, Customer grants Inspirus a royalty-free, non-exclusive, non-transferable license for Inspirus to display the graphics and trademarks uploaded by Customer on the Platform.

10.2     Ownership. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Customer will not give any data to Inspirus containing personal information unless the owner of the data has specifically authorized Customer to do so or unless it has some other lawful basis for providing Inspirus such data. Inspirus will only use and process Customer Data for purposes of performance of the Services for Customer. Customer represents and warrants that it has verified the identification of each User prior to providing such User‚Äôs data to Inspirus. The User Data shall be deemed to be owned by the individual User.

10.3     Correction. In the event of any loss or damage to Customer Data, the Customer‚Äôs sole and exclusive remedy shall be for Inspirus to use commercially reasonable efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Inspirus in accordance with the archiving procedures described in its back-up policy. Inspirus shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Inspirus to perform services).

10.4     Backup and Return. Inspirus shall back up the Platform and any Customer Data stored by Inspirus in connection with the Services, in the format and on the frequency customarily provided with services similar to those provided under this Agreement. Upon termination or expiration of the Agreement, Inspirus will delete or return any Customer Data in accordance with the obligations set forth in Section 2.5 above.

10.5     Privacy Policy. Inspirus, its agents and third party subprocessors shall be permitted to access and use the Customer Data and User Data to the extent required to perform its obligations hereunder. However, prior to sharing any Customer Data or User Data with those parties, Inspirus shall ensure that the third party maintains, at a minimum, reasonable data practices to maintain the privacy and security of such data. In addition, Inspirus shall be permitted to use anonymized Customer Data and User Data both during and after the Agreement Term to the extent that such data is not identified or identifiable as relating to the Customer or User.

10.6     Inactive Platform Account. In the event a Platform Account is created by Customer but no Users in the Platform Account have had activity for a period of six (6) months, Inspirus reserves the right, without prior written notice, to delete any and all Customer Data associated with such Platform Account and this Agreement shall automatically terminate in accordance with the terms set forth in Section 2.5 above.

11.  Indemnification

11.1     Customer Indemnity. The Customer shall defend, indemnify and hold harmless Inspirus against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer‚Äôs use of the Services, provided that:

    1. the Customer is given prompt notice of any such claim;

    2. Inspirus provides reasonable cooperation to the Customer in the defense and settlement of such claim, at the Customer’s expense; and

    3. The Customer is given sole authority to defend of settle the claim.

12.  Limitation of Liability

12.1     Limitation. EXCEPT FOR CUSTOMER‚ÄôS BREACH OF INSPIRUS‚Äô INTELLECTUAL PROPERTY RIGHTS AND CUSTOMER‚ÄôS PAYMENT OBLIGATIONS TO INSPIRUS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL INSPIRUS BE LIABLE TO CUSTOMER FOR ANY DAMAGES, COSTS, CLAIMS OR OTHER LIABILITIES RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE LESSER OF (1) THE FEES PAID BY THE CUSTOMER FOR THE RIGHT TO ACCESS AND USE THE PLATFORM UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CAUSE OF ACTION OR, (II) TEN THOUSAND U.S. DOLLARS (US $10,000). INSPIRUS LICENSORS DISCLAIM ALL LIABILITY TO CUSTOMER, WHETHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL (INCLUDING LOSS OF PROFITS), ARISING IN CONNECTION WITH THIS AGREEMENT. This Section 12 will apply to the maximum extent permitted under applicable law.

13.  Representation and Warranties

13.1     Corporate Authority. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement as further set forth herein.

13.2     Security Warranty. Inspirus has implemented reasonable Security Measures (as hereinafter defined) and maintains the Platform at reputable third-party Internet service providers and co-location facilities. ‚ÄúSecurity Measures‚Äù means commercially reasonable efforts to ensure that Customer Data will be maintained accurately and safeguarded including the use of technical and physical controls to protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Inspirus.

13.3     Disclaimer. EXCEPT FOR THE WARRANTIES CONTAINED IN SECTIONS 13.1 AND 13.2 (I) THE PLATFORM AND ALL OTHER INSPIRUS SERVICES ARE PROVIDED ‚ÄúAS IS‚Äù, AND (II) INSPIRUS, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRANTIES CONTAINED IN SECTIONS 13.1 AND 13.2 ARE SOLELY FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. INSPIRUS AND ITS LICENSORS DO NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE PLATFORM WILL MEET THE CUSTOMERS REQUIREMENTS, (B) THE OPERATION OF THE PLATFORM WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, (C) ANY ERRORS IN THE PLATFORM CAN OR WILL BE CORRECTED, (D) THE PLATFORM OR THE FUNCTIONS CONTAINED THEREIN, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER‚ÄôS REQUIREMENTS, INCLUDING FOR RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS. INSPIRUS AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURE, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER‚ÄôS USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS.

14.  General Terms

14.1     Alternative Dispute Resolution. The Parties will attempt in good faith to resolve any dispute or claim, except with respect to any disputes or claims involving intellectual property, arising out of or in relation to the Agreement through negotiations between persons formally designated by each Party with authority to settle the relevant dispute. If such individuals do not resolve such dispute within thirty (30) days after reference to it, then the Parties may agree on non-binding mediation and the process therefore. If the Parties do not agree on nonbinding mediation, then either Party may pursue its rights and remedies under this Agreement. All offers, promises, communications, statements and actions during the course of any informal dispute resolution process pursuant to this Section 14.1 (including any non-binding mediation) by any party or individual: (i) are confidential, privileged and may not be disclosed (including by any mediator); and (ii) are inadmissible, are not discoverable and may not be used (or referred to) for any purpose, including impeachment of any other testimony in an arbitration, judicial, administrative or regulatory proceeding. The dispute resolution processes described in this Section 14.1 shall not prejudice either Party‚Äôs right to seek injunctive relief if it believes it will suffer irreparable harm.

14.2     Analysis of Services. Customer agrees that Inspirus may collect, use and disclose Service Data. All Service Data is deemed to be Inspirus Confidential Information. However, Inspirus will not disclose any Service Data in a form that could identify or serve to identify Customer or any User that utilizes the Services.

14.3     Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Customer may not assign this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Inspirus.

14.4     Entire Agreement. This Agreement supersedes all prior discussions and agreements and represents the entire agreement between the Parties with respect to the subject matter hereof.

14.5     Force Majeure. If a Party‚Äôs performance is prevented by fire, flood, earthquakes, other elements of nature or acts of God, acts of war, terrorism, riots, rebellions or revolutions, civil disorders or third party labor strikes, then the affected Party shall be excused for such non-performance for as long as such event continues; provided, however, such event is beyond the control of the affected Party (and could not be prevented by appropriate precautions) and the affected Party is diligently attempting to recommence performance. The affected Party shall immediately notify the other Party of the occurrence of the event and, if non-performance continues for fifteen (15) days (or more), the other Party may terminate this Agreement as of the date specified in the termination notice.

14.6     Governing Law and Jurisdiction.  This agreement shall be governed by and construed in accordance with the substantive laws of the state of New York, without regard to its conflicts of law principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement.

14.7     Export Controls and Economic Sanctions. Customer represents and warrants that, for the Agreement Term, neither Customer nor any User is a Specially Designated National (‚ÄúSDN‚Äù) as identified on the SDN List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury; that the Services will not be used by, for, or for the benefit of any SDN; and further that none of the Customer or Users is located in any country against which the United States maintains comprehensive economic sanctions that prohibit the delivery of services to such country from the United States or by a United States person. Customer understands that the SDN List and the U.S. economic sanctions administered by OFAC are dynamic and subject to change and Customer undertakes to monitor its ongoing compliance with this Section 14.7. Customer shall promptly notify Inspirus upon the discovery that any representation or warranty in this Section 14.7 has been breached. In the event this Section 14.7 is breached, this Agreement shall be terminated effective immediately.

14.8     Application of Consumer Protection Laws. To the extent certain consumer protection laws apply to the underlying relationship between Customer and Inspirus (for example, the Platform is being used for consumer purposes, and not being used as a workplace tool by a business or organization), and to the extent application of such laws cannot otherwise be lawfully excluded, nothing in this Agreement will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies the Customer may have under such laws.

14.9     Insurance. Inspirus shall carry and maintain in force, with insurance companies authorized to do business in the jurisdictions where the Services are performed, insurance of the types and in the amounts that are reasonable and customary (or legally required) for the Services.

14.10  Independent Contractor. Inspirus is an independent contractor of Customer. The individuals and entities retained by or on behalf of Inspirus to perform Inspirus‚Äô obligations under this Agreement shall at all times be under Inspirus‚Äô exclusive direction and control and shall in no way be deemed to be an employee, agent or contractor of Customer.

14.11  Notices. Except as otherwise set forth herein, all notices required under the Agreement shall be by email to the Account Creator or Administrator, as applicable, at the email address associated with the Customer‚Äôs account. Any legal notices required to be sent to Inspirus should be sent to info1@inspirus.com. Notices will be deemed to have been duly given the day after the email is sent.

14.12  Compliance with Laws. Each Party shall comply with all applicable Laws in connection with this Agreement.

14.13  Severability. Each and every section herein will be separate and independent from any other and the breach of any covenant or agreement will in no way or manner discharge or relieve the performance of the Agreement.¬† The unenforceability, invalidity or illegality of any provision of the Agreement will not render the other provisions of such agreements unenforceable, invalid or illegal.

14.14  Survival. All Sections or Articles that by their nature should survive, shall survive termination (or expiration of this Agreement).

14.15  Waiver. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or obligation shall not be construed to be a waiver of any succeeding breach or any other obligation.

14.16  Modifications. Inspirus may change the terms of the Agreement at any time. In the event that Inspirus makes a material change to this Agreement, Inspirus will provide Customer with reasonable notice prior to the change taking effect by emailing the Account Creator or Administrator, as applicable, at the email address associated with Customer‚Äôs account. Any terms that are materially modified in accordance with the foregoing will become effective on the date set forth in the notice, and all other changes will become effective upon posting of the change. If Customer (or any User) accesses or uses the Services after the effective date of such changes, that use will constitute Customer‚Äôs acceptance of any revised terms and conditions.

 

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