Terms of Service

Customer Terms of Service

 

PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.

Our Customer Terms of Service is a contract that governs our customers’ use of the Insycle services. By using the Insycle services, you are agreeing to these terms. We update these terms from time to time. If you have an active Insycle subscription, we will let you know when we update the terms via your account or by email.

Last modified: January 24, 2024

Table of Contents:

  1. Definitions
  2. Use of Services
  3. Fees
  4. Term & Termination
  5. Customer Data
  6. Intellectual Property
  7. Confidentiality
  8. Indemnification
  9. Disclaimers and Liability
  10. Miscellaneous

Appendix 1: Additional Coverage Terms

1.  DEFINITIONS

“Add-Ons” means additional products and services (including enhancements, Record increases and other add-ons) that are made available for purchase and are listed in our Plans page.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” or “Customer Terms of Service” means these Customer Terms of Service and all agreements referred or linked to in here, unless otherwise stated. Notwithstanding the foregoing, throughout this Agreement, we link to FAQs and helpdesk articles in order to help facilitate your use and understanding of our products and services; however, these articles are for your information only, and they are not incorporated into this Agreement.

“AUP” means the Insycle Acceptable Use Policy.

“Authorized Payment Method” means a current, valid, payment method accepted by us, as may be updated from time to time and which may include payment through your account with a third party.

“Billing Period” means the period for which you agree to prepay fees under an Order Form. This may be the same length as the Subscription Term specified in the Order Form, or it may be shorter. For example, if you subscribe to the Subscription Services for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.

“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.

“Customer Data” means all information that you submit or collect via the Subscription Services. Customer Data does not include Insycle Content.

“DPA” means the Insycle Data Processing Agreement.

“Free Services” means the Subscription Services or other products or features made available by us to you on an unpaid trial or free basis.

“Initial Records Count” means the number of Records in your database as of the commencement of your Subscription Term for the relevant Subscription Services, as identified in the applicable Order Form.

“Insycle”, “we”, “us” or “our” means Insycle, Inc., a Delaware corporation.

“Insycle Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Services.

“Order” or “Order Form” means the Insycle-approved order form, ordering document, online confirmation page or other online subscription process by which you agree to subscribe to the Subscription Services and purchase Add-Ons (if applicable).

“Personal Data” means any information relating to an identified or identifiable individual where

(i) such information is contained within Customer Data and (ii) is protected as personal data, personal information, or personally identifiable information under applicable Data Protection Laws (as defined in the DPA).

“Privacy Policy” means the Insycle Privacy Policy, as updated by us from time to time.

“Records” means the total number of data records stored in the databases that are connected to the Subscription Services. For a list of record types see “What counts as a record?” in the pricing FAQ.

“Sensitive Information” means credit or debit card numbers; financial account numbers or wire instructions, government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR (as defined in the DPA) or any other applicable law relating to privacy and data protection.

“Subscription Fee” means the amount you pay for the Subscription Services.

“Subscription Service(s)” means all of our web-based applications, tools and platforms that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via https://www.insycle.com/ or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.

“Subscription Term” means the initial term of your subscription to the applicable Subscription Services, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.

“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Services.

“Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) for all of your Insycle accounts, but this amount excludes fees for renewals, and applicable taxes.

“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Services for your benefit and have unique user identifications and passwords for the Subscription Services.

“You”, “your” or “Customer” means the person or entity using the Subscription Services and identified in the applicable Order Form as the customer, and your Affiliates included in the scope of your purchase.

2.  USE OF SERVICES

2.1 Access. During the Subscription Term, we will provide your Users access to use the Subscription Services as described in this Agreement and the applicable Order. We may provide your Users access to use our Free Services at any time by activating them in your Insycle account. We might provide some or all elements of the Subscription Services through third party service providers.

You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement. You may provide access and use of the Subscription Services to your Affiliate’s Users; provided that, all such access, use and receipt by your Affiliate’s Users is subject to and in compliance with the Agreement and you will at all times remain liable for your Affiliates’ compliance with the Agreement.

2.2 Additional Features. You may subscribe to additional features of the Subscription Services by placing an additional Order or activating the additional features from within your Insycle account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Insycle account.

2.3 Limits. The limits that apply to you will be specified in your Order Form, this Agreement, and for our Free Subscriptions, these limits may also be designated only from within the product itself. You must be 18 years of age or older to use the Subscription Services.

2.4 Modifications. We modify the Subscription Services from time to time, including by adding or deleting features and functions, in an effort to improve your experience.

2.5 Customer Support. For information on the customer support terms that apply to your Order, please refer to the Pricing page and the Insycle Help Center.

2.6 Acceptable Use. You will comply with our AUP, as may be updated by us from time to time.

2.7 Prohibited and Unauthorized Use. You will not use the Subscription Services in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement.

You may not use the Subscription Services if you are legally prohibited from receiving or using the Subscription Services under the laws of the country in which you are resident or from which you access or use the Subscription Services.

The Subscription Services are not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Services where your communications would be subject to such laws. You may not use the Subscription Services in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Nothing contained in this section limits the usage restrictions specific to Sensitive Information under the Agreement.

You will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account.

2.8 No Sensitive Information. YOU ACKNOWLEDGE THAT THE SUBSCRIPTION SERVICES HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICES TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.

2.9 Third-Party Products. You can choose to integrate Third-Party Products with the Subscription Services. We are not responsible for any Third-Party Products or for any issues arising from or related to the Third-Party Product. The availability of any integration to a Third-Party Product does not mean we endorse, support or warrant the Third-Party Product.

2.10 Free Trial. If you register for a free trial, we will make the applicable Subscription Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Subscription Services before the end of the free trial, all of your data in the Subscription Services may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well.

3.  FEES

3.1 Subscription Fees. The Subscription Fee will remain fixed during the initial term of your subscription unless: (i) you exceed your Initial Record Count or other applicable limits (see the ‘Limits’ section above), (ii) you upgrade products or base packages, (iii) you subscribe to additional features or products, including Add-Ons, or (iv) otherwise agreed to in your Order. Additional Records added to your database beyond the Initial Record Count are billed automatically on a prorated basis every quarter during the Subscription Term.

3.2 Fee Adjustments at Renewal. Upon renewal, the price of your plan is calculated and updated automatically based on the number of Records in your database at the time of renewal. The price can go up when Records are added to your database, and down when you remove redundant Records. In addition, we may increase your Subscription Fees up to our then-current list price at renewal. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate your subscription at the end of your then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section below.

3.3 Payment of Fees. If you are paying by credit card, you authorize us to charge your Authorized Payment Method for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

In the event of a failed attempt to charge your Authorized Payment Method (for example, if your Authorized Payment Method has expired or is no longer valid), we reserve the right, and you authorize us, to retry billing your Authorized Payment Method. If you update your Authorized Payment Method to remedy a change in validity or expiration date, we will automatically resume billing; we may also receive updates on your Authorized Payment Method through our payment service providers and automatically resume billing. We may suspend your access in accordance with the ‘Suspension’ section or terminate your account in accordance with the ‘Termination for Cause’ section if we remain unable to successfully charge a valid Authorized Payment Method.

3.4 Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable upon receipt, unless otherwise specified in the Order Form.

3.5 Payment Information. You will keep your business information up to date, including your company name, address, and primary contact. You will also keep your Authorized Payment Method and billing information up to date for the payment of incurred and recurring fees, including your tax information. Changes may be made on your Billing Page within your Insycle account. You authorize Insycle to continue to charge your Authorized Payment Method for applicable fees during your Subscription Term and until any and all outstanding Fees have been paid in full. All payment obligations are non-cancelable and all amounts paid are non- refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.

3.6 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Services. You will have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are located in Canada, all fees are exclusive of GST, PST and HST.

3.7 Withholding Tax. If you are required to deduct or withhold tax from payment of your Insycle invoice, you may deduct this amount from the applicable Subscription Fee due to the extent it is due and payable as assessed withholding tax required under laws that apply to you (the “Deduction Amount”).

You will not be required to repay the Deduction Amount to us, provided that you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide this tax receipt within the specified time period, then all fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these fees may result in your account being suspended or terminated for non-payment.

4.  TERM AND TERMINATION

4.1 Term and Renewal. Your initial subscription term will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the subscription term, or one year.

4.2 Notice of Non-Renewal. For Enterprise plans (see our Plans page), unless otherwise specified in your Order, to prevent renewal of your Subscription Services, you or we must give written notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term. For all other plan types, if you decide not to renew, or if you decide to cancel early pursuant to Section 4.3, you may do so from within the product or the Customer Portal.

4.3 Early Cancellation. You may choose to cancel your subscription early at your convenience, provided that we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term. See the ‘Notice of Non-Renewal’ section above for information on how to cancel your subscription.

4.4 Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.

We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

This Agreement may not otherwise be terminated prior to the end of the Subscription Term.

4.5 Suspension

4.5.1 Suspension for Prohibited Acts.

We may suspend any User’s access to any or all Subscription Services without notice for use of the Subscription Services in a way that violates applicable local, state, federal, or foreign laws or regulations, the AUP, or the terms of this Agreement,

We may, without notice, review and delete any Customer Data that we determine in good faith violate these terms or the AUP, provided that, we have no duty (unless applicable laws or regulations provide otherwise) to prescreen, control, monitor or edit your Customer Data.

4.5.2 Suspension for Non-Payment.

We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services seven

(7) days after such notice. We will not suspend the Subscription Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Services is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Services.

Unless the full amount has been paid, we may cancel your account fourteen (14) days after such notice. Data from expired trials and canceled plans, including templates and configuration settings, is automatically removed from Insycle within 14 days after the date of expiration or cancellation.

4.5.3 Suspension for Present Harm.

If your use of, the Subscription Service:

(i) is being subjected to denial-of-service attacks or other disruptive activity,

(ii) is being used to engage in denial-of-service attacks or other disruptive activity,

(iii) is creating a security vulnerability for the Subscription Services or others,

(iv) is consuming excessive bandwidth or storage, or

(v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Services.

We will make commercially reasonable efforts to limit the suspension to the affected portion of the Subscription Services, and each party will make reasonable efforts to promptly resolve the issues causing the suspension of the Subscription Services. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

4.5.4 Suspension and Termination of Free Services.

We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.

4.6 You will continue to be subject to this Agreement for as long as you have access to an Insycle account.

4.7 Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Services and Insycle Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Services after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.

5.  CUSTOMER DATA

5.1 Customer’s Proprietary Rights. You own and retain all rights to the Customer Data. This Agreement does not grant us any ownership rights to Customer Data. You grant permission to us and our licensors to use the Customer Data only as necessary to provide the Subscription Services to you and as otherwise permitted by this Agreement. If you are using the Subscription Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.

5.2 Limits on Insycle. We will not use Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Services to you and only as permitted by applicable law and this Agreement.

5.3 Data Practices, Machine Learning and Artificial Intelligence.

5.3.1 Usage Data. We may collect information about you and your Users when you interact with the Subscription Services as permitted by the Agreement.

5.3.2 Machine Learning. We may use Customer Data for machine learning to support and develop features and functionality within the Subscription Services and similar products and services. You hereby expressly consent to our use of Customer Data for such purposes. You may opt-out of having your Customer Data used for machine learning by emailing support@insycle.com.

5.3.3 AI Products. We may offer products, features, or tools as part of the Subscription Services that are powered by artificial intelligence or similar technologies (collectively, “AI Products”). The terms in this section govern your use of the AI Products within the Subscription Services. They do not apply to the use of any Third-Party Products that are powered by artificial intelligence or similar technologies.

(a) Input and Output. You are responsible for any text, images, or other content you upload or submit to the AI Products (“Input”) as well as the text, images, or other content generated by the AI Products based on your Input (“Output”). You will ensure that your use of the AI Products, including Input and Output, complies with our Agreement and with applicable law. You acknowledge that (i) although Input may be Customer Data, you should not include any information in your Input that you are restricted from using or sharing (for example, third party confidential information); (ii) Output will not be Confidential Information (except to the extent it is Customer Data); and (iii) Output may not be accurate or reliable, and you should independently review all Output before using or sharing it.

(b) Ownership and Rights. Between you and Insycle, you retain all rights you may have to use and exploit your Output and we retain all ownership in and to the AI Products, including but not limited to all algorithms or models and aggregated results of developing AI Products. This means you can use your Output for any lawful purpose, including commercial purposes such as sale or publication. You acknowledge that Output may not be unique across users and that the AI Products may generate the same or similar Output for you or a third party. For example, you may provide Input into an AI Product such as “What color is the sky?” and receive responses such as “The sky is blue.” These responses are not unique to you and you may not claim ownership in them.

(c) AI Service Providers. We provide some elements of the AI Products through third party service providers (“AI Service Providers”). You acknowledge that your Input and Output, including Customer Data, will be shared with and processed by our AI Service Providers, such as OpenAI, LLC (“OpenAI”) and Intercom, Inc. (“Intercom”) to enable your use of our AI Products, for content moderation, and other business purposes consistent with this Agreement. You may not use the AI Products in a manner that violates any terms or policy of any AI Service Provider. You can review the OpenAI policies directly at https://openai.com/policies and the Intercom policies at https://www.intercom.com/legal/terms-and-policies/additional-product-terms.

(d) Availability and Modifications. We do not guarantee the availability of the AI Products in any or all geographical areas. Notwithstanding anything to the contrary in this Agreement, any production downtime impacting the AI Products that results from a failure of a third party service provider will not be included in any uptime commitment.

Notwithstanding anything to the contrary in this Agreement, we may make changes to the AI Products that materially reduce the functionality provided to you during the Subscription Term or change the limits that apply to you at any time in our sole discretion.

5.3.4 Privacy Policy. For more information on these practices, please see our Privacy Policy.

5.4 Protection of Customer Data. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Customer Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Subscription Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards designed to protect Personal Data as described in the DPA, including our Security Measures in Annex 2 of our DPA.

5.5 Customer Data Transfers. We and our Affiliates may transfer Customer Data (including Personal Data) to the United States in connection with the Subscription Services. To the extent we process Personal Data that is subject to the protection of European Data Protection Laws (as defined in the DPA) in the United States, we will process such Personal Data as set out in our DPA.

5.6 Retention and Deletion of Customer Data. Customer Data, including templates and configuration settings, is automatically removed from Insycle within fourteen (14) days after termination or expiration of the Subscription Term, or, for Free Services, if your Insycle account remains inactive for a period of fourteen (14) days. You can also remove your Customer Data at any time directly via your Insycle account settings.

6.  INTELLECTUAL PROPERTY

6.1 This is an agreement for access to and use of the Subscription Services, and you are not granted a license to any software by this Agreement. We retain all intellectual property rights to the Insycle Content, the Subscription Services, and any other products or services provided under this Agreement. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Insycle Content or the Subscription Services, in whole or in part, by any means, except as expressly authorized in writing by us. You may not use any of our trademarks without our prior written permission.

6.2 We encourage all customers to comment on the Subscription Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Services, without payment or attribution to you.

7.  CONFIDENTIALITY

7.1 The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Subscription Services ), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections, or who are otherwise bound by confidentiality obligations that are, no less stringent than those herein.

7.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure, including in circumstances where the Disclosing Party refuses to provide their consent or fails to respond to the Receiving Party’s inquiries in connection with the request to disclose the Confidential Information.

8.  INDEMNIFICATION

You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an Action) brought against us (and our officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of:

(a) unauthorized or illegal use of the Subscription Services by you or your Affiliates,

(b) your or your Affiliates’ noncompliance with or breach of this Agreement,

(c) your or your Affiliates’ use of Third-Party Products, or

(d) the unauthorized use of the Subscription Services by any other person using your User information.

We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

9.  DISCLAIMERS; LIMITATION OF LIABILITY

9.1 Performance Warranty. We warrant that: (i) the Subscription Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service; provided however, this warranty will not apply to you if you only use the Free Services.

In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Subscription Services after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.

We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Subscription Services with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Services by anyone other than us, or modification of the Subscription Services by us in accordance with specifications or instructions that you provided, or (iii) use of the Subscription Services in violation of or outside the scope of this Agreement.

THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.

9.2 Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE ‘PERFORMANCE WARRANTY’ SECTION AND WITHOUT LIMITING OUR OBLIGATIONS IN THE ‘PROTECTION OF CUSTOMER DATA’ SECTION OF THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SUBSCRIPTION SERVICES, DATA SYNCHED TO OR MADE AVAILABLE FROM THE SUBSCRIPTION SERVICES OR INSYCLE CONTENT FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICES AND INSYCLE CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

9.3 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY; PROVIDED THAT, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.

9.4 Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICES IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.

9.5 Third Party Products. WE AND OUR AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

9.6 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICES TO YOU.

9.7 Additional Coverage Terms. If your Total Committed Subscription Value exceeds thirty- five thousand U.S. dollars (USD$35,000), then the Insycle Additional Coverage Terms available at Appendix 1 to these General Terms will apply. If these terms apply to you, then they are incorporated into the Agreement.

10.  MISCELLANEOUS

10.1 Governing Law and Venue. This Agreement is governed by the laws of the State of Delaware, United States, without reference to conflicts of law principles, with exclusive jurisdiction in the courts of New Castle County, Delaware, United States.

10.2 Amendment; No Waiver. We may modify any part or all of the Agreement by posting a revised version at https://www.insycle.com/terms-of-service/. The revised version will become effective and binding the next business day after it is posted. If you have a paid subscription, we will provide you notice of this revision by email or via your account.

If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at https://www.insycle.com/terms-of-service/ will apply. However, if we can no longer reasonably provide the subscription to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Subscription Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Subscription Services after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.

No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

10.3 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

10.4 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

10.5 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.

10.6 Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all applicable laws in your use of the Subscription Services, including any applicable export laws. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in your use and receipt of the Subscription Services. You will not directly or indirectly export, re-export, or transfer the Subscription Services to prohibited countries or individuals or permit use of the Subscription Services by prohibited countries or individuals.

10.7 Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

10.8 Notices. To Insycle: Notice will be sent to the contact address set forth in the Order Form and will be deemed delivered as of the date of actual receipt. To you: your address as provided in our Insycle Subscription account information for you. We may give electronic notices by general notice via the Subscription Services and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Services. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.

10.9 Entire Agreement. This Agreement (including each Order), along with the DPA and our Privacy Policy is the entire agreement between us for the Subscription Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, supplier portal, or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Services or dependent on any oral or written comments made by us regarding future functionality or features of the Subscription Services. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

10.10 Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any Insycle Affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

10.11 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

10.12 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, will not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.

10.13 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.

10.14 Survival. The following sections will survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees’, ‘Prohibited and Unauthorized Use’, ‘Early Cancellation’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension’, ‘Effect of Termination or Expiration’, ‘Intellectual Property’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, and ‘Miscellaneous’.

10.15 Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.

APPENDIX 1
  ADDITIONAL COVERAGE TERMS

If your Total Committed Subscription Value exceeds thirty-five thousand U.S. dollars (USD$35,000), then these Additional Coverage Terms apply. If, at any point during your Subscription Term, your Total Committed Subscription Value is below this amount, then these terms will not apply. We may update or change these terms in the same way as we can update or change our Agreement, as we describe in the ‘Amendment; No Waiver’ section of the General Terms.

1.  Insycle Indemnification

We will indemnify, defend and hold you harmless, at our expense, against any Action brought against you (and your officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with you to the extent that such Action is based upon or arises out of (1) an allegation that the Subscription Services infringes a valid patent in a member state of the Patent Cooperation Treaty, registered trademark, or registered copyright (“IP Indemnification”), or (2) our breach of our confidentiality obligations or our use of Customer Data in violation of this Agreement (“Confidentiality and Data Misuse Indemnification”).

You will: notify us in writing within thirty (30) days of you becoming aware of any such claim; give us sole control of the defense or settlement of such a claim; and provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We will not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.

We will not have any obligation or liability under this section if the alleged claim is caused by or based on: (i) any combination of the Subscription Services with any hardware, software, equipment, or data not provided by us, (ii) modification of the Subscription Services by anyone other than us, or modification of the Subscription Services by us in accordance with specifications or instructions that you provided, (iii) use of the Subscription Services in violation of or outside the scope of this Agreement, (iv) an allegation that the Subscription Services consists of a function, system or method traditionally utilized in marketing, sales or services software that is not commercially unique to the Subscription Services, and the commercially unique aspects of the Subscription Services are not identified in the allegation giving rise to the claim, or (v) user interface or related user design elements not provided by us.

Notwithstanding the foregoing, in the event of such a claim, or if we believe that such a claim is likely, we may, at our sole option and expense: (a) modify the Subscription Services or provide you with substitute Subscription Services that are non-infringing; or (b) obtain a license or permission for you to continue to use the Subscription Services, at no additional cost to you; or (c) if neither (a) nor (b) is, in our judgment, commercially practicable, terminate your access to the Subscription Services (or to a portion of the Subscription Services as necessary to resolve the claimed infringement) and refund any prepaid but unused fees covering use of the Subscription Services after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.

2.  Limitation of Liability

The ‘Limitation of Liability’ sub-section in the ‘Disclaimers; Limitations of Liability’ section of the General Terms is revised to read as follows:

“EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, OUR LIABILITY ARISING FROM OUR IP INDEMNIFICATION OBLIGATIONS UNDER THE ‘INSYCLE INDEMNIFICATION’ SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICES IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.”