Terms.


THIS SOFTWARE AS A SERVICE AGREEMENT, dated as of the latest date set forth on the signature pages below (the “Effective Date”), between INK Content, Inc., a Delaware corporation (“INK”), and the customer set forth on the signature page below (“Customer”), sets forth the terms and conditions whereby INK agrees to provide to Customer for a limited period of time and Customer agrees to acquire from INK one or more limited subscriptions to access and use certain Services (as defined below) provided by INK on a software-as-a-service basis, together with certain documentation and support services related thereto, in each case as set forth on the Order Form (as defined below) delivered in connection with this Agreement.  To the extent any terms or conditions contained in the Order Form conflict with the terms or conditions contained in this Agreement, the terms and conditions of the Order Form shall supersede only those conflicting terms or conditions contained in this Agreement and only to the minimum extent necessary to harmonize the terms and conditions in such Order Form with the terms and conditions contained herein.  The Order Form together with the terms and conditions of this Agreement (as defined below), shall constitute and be construed as a single agreement consisting of the terms and conditions contained in the Order Form together with the terms of this Agreement.  This Agreement specifically supersedes and replaces the terms and conditions of all prior agreements between INK and Customer relating to the Service subscribed to hereunder by Customer, including, but not limited to, any shrink-wrap agreements, click-wrap agreements, terms of service or any demo or trial agreements which may accompany the products or which may be published on the website pursuant to which INK grants access to the Services or which have been previously in force between the parties.  Customer hereby acknowledges that a free version of the Service is made available by INK for use by end users without payment of a Subscription Fee (the “Free Version”) that omits certain features and functionality accessible or included in the commercial version of the Service that requires payment of a Subscription Fee (the “Commercial Functionality”).  Additionally, Customer acknowledges that use of the Free Version is subject to significant restrictions that may not be applicable to the commercial version of the Service that permits use of the Commercial Functionality and Customer’s rights with respect to the Free Version are limited or omit certain rights afforded users of the Commercial Functionality.  If Customer has not subscribed to and paid for the version of the Service that permits use of the Commercial Functionality, Customer shall have no right or license to access or use any Commercial Functionality and only the terms and conditions of Section 16 below (including those Sections of this Agreement incorporated therein by reference) will govern Customer’s use of the Service (and no other terms of this Agreement shall apply to Customer or govern Customer’s use of the Service) and upon purchase of a commercial subscription for the Service, this entire Agreement, exclusive of Section 16, shall apply to Customer and govern all use of the Service, including all Commercial Functionality.  In consideration of the mutual promises and agreements contained herein, the parties hereto also agree as follows:


1. DEFINITIONS –


(a) “Agreement” means this software as a service subscription agreement, together with all exhibits, schedules, annexes and Order Forms made a part hereof in accordance with the terms of this Agreement and all amendments, modifications, supplements and alterations thereto effected in accordance with the terms of this Agreement.

(b) “Confidential Information” means all technical and non-technical information in both tangible and intangible form, including, but not limited to, product design information, software code, technical information, customer information, discounting, cost and pricing information, financial information and the results derived from or methodology employed by Customer in conducting any benchmark testing of the Service or Licensed Software and, in the case of Customer, all Customer Data; provided that the term “Confidential Information” shall not include information which the recipient can show by reasonable proof (i) to have been known by the recipient prior to the time of disclosure by the disclosing party, (ii) to have become part of the public domain through no fault or breach of this Agreement by the recipient, (iii) to have been disclosed to the recipient in good faith by a third party who is not under any obligation of confidence or secrecy to the disclosing party at the time such third party discloses the information to the recipient or (iv) to have been compelled to be produced by a court of competent jurisdiction, provided that the recipient shall first give notice to the disclosing party of any such request or order of the court to give the disclosing party an opportunity to contest or limit said request or order of the court.

(c) “Customer Data” means all electronic data or information submitted by or for Customer to the Services.

(d) “Error” means any error, defect or omission that (i) is discovered in the Service, (ii) is reproducible and (iii) prevents operation or use of the Service substantially in accordance with the Licensed Documentation.

(e) “Licensed Documentation” means the published user manuals and published instructions that INK makes gener­ally available for the Licensed Software.

(f) “Licensed Material” means the Licensed Software and the Licensed Documentation.

(g) “Licensed Software” means the machine-readable object code ver­sion of (i) any software provided by INK that is required to be downloaded and installed on Customer’s local computer in order to access or use the Service, together with all Updates for the Licensed Software that INK releases from time to time, including all Updates released by INK in connection with Support Services pursuant to Section 4 of this Agreement.

(h) “Order Form” means (i) INK’s standard price quote, purchase order, order form or purchase confirmation (including such price quotes, order forms and purchase confirmations as may be delivered electronically through use of INK’s online store or website), as such document may be amended, supplemented or modified from time to time in accordance with this Agreement or (ii) any other non-INK price quote, purchase order, order form or purchase confirmation delivered by Customer to INK but solely to the extent permitted by and delivered in accordance with Section 15.

(i) “Service” means (i) the online, web-based version of the software service made accessible by INK via a website owned or controlled by INK that are subscribed to by Customer pursuant to an Order Form, including associated offline components and third party applications and (ii) the online, web-based version of the software service made accessible by INK via a website owned or controlled by INK that omits or prohibits use of the Commercial Functionality.

(j) “Subscription Term” means, (i) with respect to the Free Version, a month-to-month term that shall continue until terminated by INK or by Customer and (ii) with respect to each Service that includes Commercial Functionality, the period of time or duration of the subscription specified on the Order Form pursuant to which Customer subscribed to such Service, together with all renewals thereof effected in accordance with the terms of this Agreement; provided that to the extent no such time period or duration is specified in the Order Form pursuant to which Customer subscribed to such Service, the period of time or duration of the subscription shall be one (1) year commencing on the date of such Order Form, together with all renewals thereof effected in accordance with the terms of this Agreement.

(k) “Support Services” means the technical support services provided by INK pursuant to Section 4 hereof.

(l) “Update” means any revision, enhancement, improvement or modification to or programming fix for the Service, the Licensed Software or the Licensed Documentation which INK makes generally available, incorporates into and makes a part of the Service, the Licensed Software or the Licensed Documentation and does not separately price or market.

(m) “Use” means each particular instance the Customer accesses and executes operation of the Service or the Licensed Software.

(n) “User” means (i) in the case of the Free Version, those individuals who download the Licensed Software and use the Free Version of the Service in accordance with the terms of this Agreement and (ii) in the of Commercial Functionality, those individuals who are authorized by Customer to use the Service, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by INK at Customer’s request) and may include employees, consultants, contractors and agents of Customer, or third parties with whom Customer transacts business for the benefit of Customer.


2. SUBSCRIPTION –


(a) License – Subject to the terms and conditions of this Agreement, including, but not limited to the applicable restrictions set forth in Section 2(b) below, and subject further to Customer’s full compliance herewith and according to the scope, time period and other terms indicated on the applicable Order Form delivered in connection with this Agreement, INK hereby grants Customer and Customer hereby accepts from INK, a limited, non-exclusive and non-transferable (except as otherwise expressly provided in Section 17(a) below) right and license during the Subscription Term to Use the Service in accordance with the applicable restrictions and conditions contained in this Agreement.  Customer’s right to Use the Service during the Subscription Term shall extend to Use by third parties under a written agreement with Customer to provide outsourcing services for Customer's own internal business operations; provided, that (i) such third parties have agreed in writing to abide by the terms of this Agreement and (ii) Customer shall remain primarily liable for all acts and omissions by such third parties.

(b) Service Usage and Restrictions –Customer acknowledges that access to and use of the Service (i) is limited to use of the Service via a hosted SaaS model and (ii) Customer is required to download and install the Licensed Software on Customer’s systems in order to access and Use the Service.  INK hereby grants Customer and Customer hereby accepts from INK, a limited, non-exclusive and non-transferable (except as otherwise expressly provided in Section 17(a) below) right and license during the Subscription Term to Use the Licensed Software solely in connection with Use of the Service and at all times in accordance with the applicable restrictions and conditions contained in this Agreement.  Customer further acknowledges that in a hosted SaaS environment, Updates applied by INK to the Service and the Licensed Software shall apply generally to all customers of INK (including Customer)  that access and use such Service.  Customer further acknowledges and agrees that the subscription purchased hereunder and the restrictions applicable to Customer’s Use of the Service will vary according to the type of Service subscribed to by Customer. One or more of the restrictions set forth in this Section 2 may apply to a Service depending upon the type of Service subscribed to by Customer.  Customer is encouraged to carefully review all terms and restrictions contained in this Section 2 and each Order Form.  Customer hereby agrees to the following license restrictions and conditions applicable to the Service as set forth in the Order Forms delivered by Customer under this Agreement:

For all Services made generally available by INK on a  per-User subscription basis (a “User Subscription”), Customer may Use such Service by no more than the specified number of Users; and

For all Services made generally available by INK on a per-Use basis (a “Per-Use Subscription”), Customer may Use such Service and execute the Licensed Software via the Service by no more than the number of Uses specified in the applicable Order Form.

Additional User subscriptions may be added during the Subscription Term for a pre-existing User Subscription, prorated for the remainder of the Subscription Term in effect at the time the additional Users are added and all such additional Users’ subscriptions shall terminate on the same date as the pre-existing User Subscriptions. User Subscriptions are for designated Users and shall not be used or shared by more than one User, but may be reassigned to new Users to replace existing Users by Customer providing prior written notice to INK.  In no event shall Customer access or use a Service in contravention of the foregoing restrictions applicable to such  Service or any other restrictions contained in this Agreement. 

(c) Other Covenants – Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify INK promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the terms of this Agreement and all applicable laws and government regulations.  Customer shall not (a) make the Services available to any third party other than Users permitted under this Agreement, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store, process or transmit material in violation of any privacy law or in violation of any third party’s intellectual property rights, (d) use the Service to transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, (e) attempt to gain authorized access to the Service or its related systems or networks, (f) use bots in connection with Use of the Service or copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for its own internal business purposes or (g) intentionally interfere with or disrupt the integrity or performance of the Services or data contained therein.

(d) Renewal of Subscription Term – Upon expiration of each Subscription Term for a Service, unless otherwise specified in the applicable Order Form, all subscriptions for such Service under this Agreement shall automatically renew for an additional 12-month Subscription Term, and INK will invoice Customer at the then-current subscription-based price for such additional Subscription Term, unless INK is notified by Customer in writing at least thirty (30) days prior to the expiration of such current Subscription Term that Customer elects not to renew the subscription for such Service for an additional Subscription Term.

(e) Other Services – The Service subscribed to by Customer and all Support Services provided in respect thereof shall be governed by this Agreement, together with the applicable Order Forms delivered hereunder.  Unless otherwise agreed by the parties in writing, all other services purchased by Customer in respect of the Service or Licensed Software, if any, including implementation services, training services and professional services (collectively, “Ancillary Services”), shall be governed solely by a separate written mutually acceptable services agreement entered into by the parties or, in the absence of such agreement, INK’s standard professional services agreement, and acceptance of the Service shall not be contingent upon Customer’s acceptance of any such Ancillary Services.


3. REGISTRATION AND PAYMENT TERMS –


(a) Registration – To Use each Service, Customer must register with INK by generating a user-name and password for each User (“Registration”). All passwords shall be personal and non-transferable. The parties shall treat all passwords and user-names generated for the purpose of Registration as Confidential Information of INK.

(b) Payment – Upon delivery of an Order Form by Customer, INK shall deliver an invoice to Customer specifying the subscription fees payable pursuant to such Order Form for the Subscription Term (the “Subscription Fee”).  Customer shall pay all Subscription Fees specified therein within thirty (30) days of Customer’s receipt of such invoice.  In the event that Customer elects to purchase a Service online through use of INK’s website or online store, Customer is required to pay all fees due hereunder with a credit card, and Customer (i) shall provide INK with a valid form of credit card payment at the time of such purchase and to keep all such credit card information current and accurate in respect of all renewal fees, (ii) shall promptly notify INK if its credit card has changed or has been declined and (iii) hereby consents to INK automatically processing and charging all fees due by Customer hereunder as they become due, including all renewal Subscription Fees, to the credit card submitted by Customer.  All fees payable by Customer in respect of such Ancillary Services may be separately invoiced.  Customer’s payment obligation with respect to all Subscription Fees owing hereunder shall be independent of the provision of Ancillary Services, whether or not such Ancillary Services are separately invoiced.  Any late payment of any amount owing hereunder shall accrue interest at a rate equal to the lesser of (i) 15% per annum and (ii) the maximum rate permitted by law.  Except as expressly set forth in this Agreement, all Subscription Fees are non-cancellable and non-refundable.

(c) Taxes – All payments referred to in this Agreement are exclusive of value added tax, sales tax and any other applicable taxes, duties or imposts which (with the exception only of those based on INK’s income) shall also be payable by Customer in accordance with applicable law.


4. SUPPORT SERVICES –

INK does not warrant that the Service will operate error-free or may be used error-free or that the Service will be accessible at all times.  During the Subscription Term INK shall provide Support Services to Customer at no additional fee.  Upon Customer’s payment of the Subscription Fees associated with the Subscription Term purchased by Customer for the Service specified in an Order Form, INK shall (i) make the Service available in accordance with the Service Level Agreement available on INK’s website (as in effect from time to time, the “SLA”), and (ii) provide Support Services in accordance with this Section 4 and in accordance with any additional Support Services terms specified in such Order Form.  INK or its authorized representative will provide Support Services for the Service during each Subscription Term.  Support Services includes problem determinations, reasonable problem resolutions, provisioning of software program temporary fixes and new releases.  Support Services shall also include the additional Support Service terms expressly set forth in writing in the Order Form delivered by Customer, which are hereby incorporated herein by reference. Support Services shall entitle Customer to receive, at no additional cost, all Updates that are applied generally to the Service. INK shall maintain the right to update the Service at any time without notice to Customer.


5. PROPRIETARY RIGHTS

(a) Customer acknowledges and agrees that, as between Customer and INK, INK, its subsidiaries and affiliates and its licensors own and shall continue to own all right, title, and interest in and to the Service, the Licensed Material, all Confidential Information of INK and all derivatives of each of the foregoing, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant Customer any ownership interest in or to the Service or any Licensed Material, but only a limited right and license to Use the Service and the Licensed Materials during the Subscription Term in accordance with the terms of this Agreement and each applicable Order Form.  Customer shall not acquire, by virtue of this Agreement, any right or license other than as expressly provided herein. Customer shall promptly notify INK of any infringement of INK’s proprietary rights of which it becomes aware.

(b) Customer shall retain ownership of all rights, title and interest in and to all Customer Data. INK shall not (i) modify Customer Data (except in connection with execution of the documented  functions of the Service), (ii) disclose Customer Data to any third party, except as required by law or as otherwise permitted by this Agreement or (iii) access or use Customer Data except (A) in connection with the provision of the Services, (B) in accordance with Section 13, (C) to prevent or address failure of the Service or technical problems, or (D) at Customer’s request in connection with Support Services.


6. LIMITED WARRANTIES

(a) Warranty by INK – INK warrants to Customer that during the Subscription Term (the “Warranty Period”) (i) the Service will perform substantially as described in the accompanying Licensed Documentation and (ii) the Service will be accessible by Customer via the internet in accordance with the SLA.  INK does not war­rant that (A) the Service or Licensed Software will satisfy or may be customized to satisfy any of Customer's requirements or any other particular use or (B) the Use of the Service or Licensed Software will be uninterrupted or error-free.  Laws from time to time in force may imply warranties that cannot be excluded or can only be excluded to a limited extent.  This Agreement shall be read and construed subject to any such statutory provisions.

(b) Performance Remedies – If at any time during the Warranty Period, INK breaches the warranty set forth in Section 6(a)(i) above, then Customer shall promptly notify INK of such Error or breach and INK shall (A) use all commercially reasonable efforts to correct such Error or breach within thirty (30) days of notification or (B) provide Customer within thirty (30) days of notification with a plan reasonably acceptable to Customer for correcting such Error or breach.  If such Error or breach is not corrected or if a reasonably acceptable plan for correcting such Error or breach is not established within such thirty (30) day period, Customer may terminate its subscription to such defective Service and INK shall refund to Customer the pro rata portion of all pre-paid Subscription Fees actually paid by Customer for the defective Service in respect of the remaining portion of the current Subscription Term. Customer acknowledges that this Section 6(b) sets forth Customer's sole and exclusive remedy, and INK's and its authorized representatives’ sole and exclusive liability, for any breach of warranty set forth in Section 6(a)(i) above.

(c) Availability Remedies – If at any time during the Warranty Period, INK breaches the warranty set forth in Section 6(a)(ii) above, then Customer shall notify INK in writing of such breach within thirty days of the occurrence of such breach and INK shall issue Customer a service level credit in accordance with the terms of the SLA (each, a “Service Credit”). Customer acknowledges that this Section 6(c) and the Service Credit issued pursuant to the SLA sets forth Customer's sole and exclusive remedy, and INK's and its authorized representatives’ sole and exclusive liability, for any breach of warranty set forth in Section 6(a)(ii) above, including any failure of the Service to be available in accordance with the terms of the SLA.

(d) Representations and Warranties by Customer – Customer warrants to INK that Customer shall not (i) Use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any applicable law or in violation of any third party’s intellectual property rights, (ii) Use the Service to transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious cod, files, scripts, agents or programs, (iii) attempt to gain authorized access to the Service or its related systems or networks or (iv) share User accounts or passwords with any person or entity other than the User designated pursuant to Registration.  Customer hereby represents and warrants to INK that it has, and shall continue to have during the Subscription Term, all rights, licenses, consents and permissions required by applicable law to upload to the Service, and process and transmit using the Service, all data (including all Customer Data) uploaded to the Service by Customer or its authorized users.

(e) Disclaimer – EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRE­SENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SERVICE AND THE LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY INK OR ITS AUTHORIZED REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN AND DISCLAIMED.


7. INDEMNITY

(a) Indemnity by INK – Subject to this Section 7 and Section 8 below, INK agrees during the Subscription Term to indemnify, defend and hold harmless Customer from and against all claims, damages, losses, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of any claim by a third party asserting that the Licensed Material or Customer’s Use of the Service, infringes upon any third party's patent, copyright or trademark, provided that (i) Customer promptly notifies INK in writing no later than thirty (30) days after Customer’s notice of any potential claim, (ii) Customer permits INK to defend, compromise or settle the claim, and provided further that no settlement intended to bind Customer shall be made without Customer’s prior written authorization and (iii) Customer gives INK all available information, reasonable assistance, and authority to enable INK to do so. 

(b) Alternative Remedy – If a claim described in Paragraph 7(a) may or has been asserted, Customer will permit INK, at INK's option and expense, to (i) procure the right to continue using the Service and the Licensed Material during the current Subscription Term, (ii) replace or modify the Service and/or Licensed Material to eliminate the infringement while providing functionally equivalent performance or (iii) terminate the Service and refund to Customer the pro rata portion of all pre-paid Subscription Fees actually paid by Customer for such Service in respect of the remaining portion of the current Subscription Term.

(c) Limitation – INK shall have no indemnity obligation to Customer hereunder if the violation or infringement claim results from (i) any Customer Data or other material uploaded, processed or transmitted by Customer through use of the Service or (ii) continuing the allegedly infringing activity after receiving written notice of such infringement claim from INK.

(d) Indemnity by Customer – Customer shall indemnify and defend INK and its Affiliates from and against, and INK and its Affiliates hold harmless from, all claims, damages, losses, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of any claim by a third party asserting that any Customer Data or other material uploaded to, or processed or transmitted using, the Service infringes upon any third party's patent, copyright or trademark or that Customer’s or any User’s use or processing of any Customer Data violates any applicable law, provided that (i) INK promptly notifies Customer in writing no later than thirty (30) days after INK’s notice of any potential claim, (ii) INK permits Customer to defend, compromise or settle the claim, and provided further that no settlement intended to bind INK shall be made without INK’s prior written authorization and (iii) INK gives Customer all available information, reasonable assistance, and authority to enable Customer to do so. 

(e) Exclusive Remedy – This Section 7 states each party’s sole liability to the other party, and the other party’s sole and exclusive remedy against, such party for any claims described in this Section 7.


8. NO CONSEQUENTIAL DAMAGES –

UNDER NO CIRCUMSTANCES WILL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR ANY OF THEIR RESPECTIVE AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CON­SEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCI­DENTAL DAMAGES, WHETHER FORE­SEE­ABLE OR UNFORE­SEEABLE, BASED ON CLAIMS BY THE OTHER PARTY OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE LICENSED MATERIALS, INTER­RUPTION IN USE OR AVAIL­­ABILITY OF DATA, STOP­PAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WAR­RANTY, BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL PROPERTY RIGHT, MISREP­RESENTATION, NEG­LIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIA­BILITY.  EXCEPT FOR CLAIMS UNDER SECTION 7, IN NO EVENT WILL THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR PROCEEDING BY INK, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE AUTHORIZED REPRESENTATIVES EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPE­CIFIC SERVICE THAT DIRECTLY CAUSED THE DAMAGE DURING THE THEN-CURRENT SUBSCRIPTION TERM.


9. CONFIDENTIALITY –

(a) Confidentiality. – Customer acknowledges that the Service and the Licensed Materials incor­porate confidential and proprie­tary information developed or acquired by or licensed to INK and that all results of testing of the Service or Licensed Software, whether performed by Customer or another third party, are confidential.  In no event will Customer publish or disclose the results of any testing or performance specifications of the Service or the Licensed Software without INK’s express prior written consent.  A party that receives Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) shall not: (i) export or re-export (within the meaning of US laws or other export control laws or regulations) any Confidential Information, except in strict compliance with US laws; (ii) reverse engineer any Confidential Information; or (iii) disclose or make available the Disclosing Party’s Confidential Information to any of the Receiving Party’s employees, agents, contractors or consultants or to any third parties, except those that have agreed in writing to be bound by terms and conditions substantially similar to, and no less restrictive with respect to limitations on use and disclosure, than those contained in this Agreement and each of which have a “need to know” in order to carry out the purposes set forth in this Agreement.  Each party shall take all reasonable precautions necessary to safeguard the confiden­tiality of all Confidential Information disclosed by the other party, including those precautions (A) taken by the disclosing party to protect its own Confidential Infor­ma­­tion and (B) which the disclosing party or its authorized representative may reasonably request from time to time. Neither party shall allow the removal or deface­ment of any confidentiality or proprietary notice placed on the Confidential Information disclosed by the disclosing party. The placement of copy­right notices on Confidential Information shall not consti­tute publication or otherwise impair their confidential nature of such information.

(b) Unauthorized Disclosure – If an unauthorized use or disclosure of the disclosing party’s Confidential Information occurs within the recipient party’s enterprise, the recipient party will immed­iately notify the disclosing party or its authorized representative and take, at recipient party’s expense, all steps which may be available to recover such Confidential Information and to prevent its subsequent unauthorized use or dissemination.

 

(c) Compelled Disclosure – If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.


10. TERMINATION –

Upon 30-days prior written notice to INK, Customer may terminate this Agreement and all subscriptions purchased hereunder; provided, however, that Customer shall not be entitled to any refund or credit (except as otherwise expressly set forth in this Agreement) of any amounts paid by Customer or a release from or cancellation, waiver or novation of any amounts payable or promised to be paid by Customer hereunder for the then-current Subscription Term and all such amounts payable or promised to be paid by Customer in respect of the remaining portion of the current Subscription Term shall automatically accelerate, become immediately due and payable and shall survive termination of this Agreement. If Customer or any of Customer’s employees, consultants, authorized representatives or permitted third parties breach any term or condition of this Agreement, INK may terminate this Agreement, without judicial or administrative resolution or obligation to refund and all amounts payable or promised to be paid by Customer in respect of the remaining portion of the current Subscription Term shall automatically accelerate, become immediately due and payable and shall survive termination of this Agreement. This Agreement will terminate automatically (i) upon expiration or termination of all Subscription Terms hereunder, or (ii) if Customer ceases to do business, becomes insolvent, goes or is put into receivership or liquidation, passes a resolution for its winding up (other than for the purpose of reconstruction or amalgamation) or for any of the foregoing, makes an arrangement for the benefit of its creditors, enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors’ rights or takes or suffers any similar action in consequence of debt.  Upon the termination of this Agreement for any reason, all rights granted to Customer hereunder will cease, and Customer will cease accessing or Using the Services.  The provision of Sections 1, 3, 8 through 15 and 17 shall survive the termination of this Agreement.  Promptly upon request by Customer made within fifteen (15) days after the effective date of any termination, INK will make available to Customer for download a file of any Customer Data stored in the Services as of the date of such termination in comma separated value (.csv) format or such other standard format supported by INK.  After such 15-day period, INK may delete all Customer Data in systems or otherwise in its possession or under its control.


11. U.S. EXPORT RESTRICTIONS –

Customer acknowledges that the Licensed Software and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations.  Customer covenants and agrees to comply with all import and export control regulations of the United States with respect to the Licensed Software.  Customer acknowledges that it may not re-export or divert the Licensed Software or any related technical information, document or mater­ial, or direct derivatives thereof, to any country set forth on the U.S. Department of Commerce’s list of State Sponsors of Terror (currently, Iran, North Korea, Sudan and Syria), including any future changes to the government’s list of State Sponsors of Terror.


12. EQUITABLE RELIEF –

The parties recognize that Sections 5, 9, 11 and 13 are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose.  The parties agree that any breach of such Sections would cause the other party substantial and irreparable damage and therefore, in the event of any such breach, in addition to other remedies which may be available, the non-breaching party shall have the right to seek specific performance and other injunctive and equitable relief in a court of law.


13. Reporting & Audit–

INK reserves the right to gather data regarding Use by Customer of the Service, including data regarding the number of words or documents checked or processed, server IP addresses, email addresses of Users, domain counts and other information deemed relevant, to ensure that the Service is being Used in accordance with the terms of this Agreement. Customer hereby consents to INK gathering and processing such Use information and agrees not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement.  Any unauthorized use of the Service or the Licensed Material by Customer or other use by Customer in violation of the restrictions contained in this Agreement shall be deemed a material breach of this Agreement. In addition to the foregoing, within ten (10) business days of Customer’s receipt of INK’s written request, Customer shall provide to INK a written report certifying to INK the number of Users and the amount of Use (for purposes of Per-Use Subscriptions) for each Service subscribed to by Customer, the identity of the Users and applicable servers, hardware or computers from which such User Use the Service, in each case for the time period so specified in INK’s written request, together with such other information as may be requested by INK and necessary to confirm Customer’s compliance with the terms of this Agreement. The auditing, reporting and certification rights and obligations set forth in this Section 13 shall survive termination of this Agreement for a period of eighteen months.


14. ENFORCEABILITY –

If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, void, invalid or illegal, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.


15. ENTIRE AGREEMENT

(a) Customer acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms.  Customer and INK further agree that, subject to clause (b) below, this Agreement, together with all Order Forms delivered in connection herewith and all exhibits, schedules and annexes hereto, is the complete and exclusive statement of the agreement between Customer and INK and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement, including any shrink-wrap agreements, click-wrap agreements or demo or trial agreements which may accompany the Licensed Material or which may have been previously in force between the parties. Subject to clause (b) below, this Agreement may not be amended, modified, supplemented or altered except by a written agreement that is signed by both parties.

(b) UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS AGREEMENT OR ANY INK ORDER FORM BE AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, SUPERSEDED OR REPLACED BY ANY NON-INK INVOICE OR NON-INK ORDER FORM OR OTHER SIMILAR INSTRUMENT DELIVERED BY CUSTOMER TO INK.  EACH PARTY ACKNOWLEDGES AND AGREES THAT, SOLELY AS A CONVENIENCE TO CUSTOMER AND ONLY FOR CUSTOMER’S INTERNAL ACCOUNTING PROCEDURES, CUSTOMER MAY DELIVER TO INK A CUSTOMER INVOICE OR CUSTOMER ORDER FORM OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION CONTEMPLATED HEREUNDER AND THAT NO ACTION BY INK, INCLUDING INK’S PROVISION OF ANY SERVICE OR ACCEPTANCE OF PAYMENT, SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONS CONTAINED IN SUCH CUSTOMER INVOICE OR CUSTOMER ORDER FORM OR OTHER SIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS ACCEPTED BY INK PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES.


16. FREE VERSION

(a) Customer hereby acknowledges that the Free Version of the Service omits Commercial Functionality.  Additionally, Customer acknowledges that use of the Free Version is subject to significant restrictions that may not be applicable to the commercial version of the Software that permits use of the Commercial Functionality and Customer’s rights with respect to the Free Version are limited or omit certain rights afforded users of the Commercial Version.  If Customer is not paying for the version of the Service that permits use of the Commercial Functionality and Customer is not otherwise accessing or using the Commercial Functionality, then only the terms and conditions of this Section 16 (including those Sections of this Agreement incorporated in this Section 16 by reference herein) will govern Customer’s Use of the Service (and no other terms of this Agreement shall apply to Customer or govern Customer’s Use the Service) and upon purchase of a commercial subscription for the Service, this entire Agreement, exclusive of this Section 16, shall apply to Customer and govern all Use of the Service, including the Commercial Functionality. 

(b) Subject to Sections 2(b) and 2(c), which are hereby incorporated into this Section 16 by reference, INK hereby grants Customer and Customer hereby accepts from INK, a limited, terminable, non-exclusive and non-transferable right and license to Use the Free Version of the Service in accordance with the applicable restrictions and conditions contained in this Section 16 (including those Sections of this Agreement incorporated herein by reference).  Customer’s right to Use the Free Version of the Service shall extend to Use by third parties under a written agreement with Customer to provide outsourcing services for Customer's own internal business operations; provided, that (i) such third parties have agreed in writing to abide by the terms of this Agreement and (ii) Customer shall remain primarily liable for all acts and omissions by such third parties.  INK may terminate the Free Version of the Services and all licenses granted to Customer under this Section 16 at any time, with or without reason. All access and usage of the Free Version of the Service by Customer is provided on a hosted software-as-a-service basis and requires a User generated user-name and password and Customer. Customer may not Use the Service to check or process more than 300 documents or 150,000 words in any thirty-day period or more than 100 documents or 50,000 words in any 24-hour period.  INK reserves the right to further limit the number of words or documents that may be checked by Customer through Use of the Service and to suspend Customer’s Use of the Service if any Use by Customer materially impairs Use of the Service by other customers or users.

(c) Customer acknowledges that the Service (including the Free Version) incor­porates confidential and proprie­tary information developed or acquired by or licensed to INK and that all results of testing of the Free Version of the Service, whether performed by Customer or another third party, are confidential.  In no event will Customer publish or disclose the results of any testing or performance specifications of the Free Version of the Service without INK’s express prior written consent. Customer shall not remove or deface­ of any confidentiality or proprietary notice placed on any materials relating to the Service. The placement of copy­right notices on any materials relating to the Service shall not consti­tute publication or otherwise impair their confidential nature of such information.  Customer agrees not to cause or permit the reverse engineering, disassembly, modification, translation or decompilation of the Service.

(d) THE FREE VERSION OF THE SERVICE PROVIDED BY INK IS DELIVERED "AS IS AND WHERE IS" AND INK SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INK DOES NOT WARRANT THAT THE FREE VERSION OF THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT IT WILL BE ACCESSIBLE OR AVAILABLE AT ALL TIMES.  UNDER NO CIRCUMSTANCES WILL INK OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CON­SEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCI­DENTAL DAMAGES, WHETHER FORE­SEE­ABLE OR UNFORE­SEEABLE OR WHETHER BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF THE FREE VERSION OF THE SERVICE.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF INK OR ITS AUTHORIZED REPRESENTATIVES INCURRED IN ANY ACTION OR PROCEEDING RELATING TO CUSTOMER’S USE OF THE FREE VERSION OF THE SERVICE EXCEED ONE HUNDRED DOLLARS.

(e) The Customer’s right to use the Free Version of the Service and all licenses granted under this Section 16 shall automatically terminate immediately upon the earliest of (i) the date upon which Customer violates any applicable terms of this Agreement, (ii) the date upon which Customer purchases a commercial subscription for the Commercial Functionality and (iii) the date upon which INK notifies Customers of its termination of the Free Version of the Service.

(f) Upon termination of the license to use the Free Version of the Service, Customer shall cease Use of the Service, unless Customer has purchased a commercial subscription for the Commercial Functionality on or prior to such expiration.  

Sections 1, 2(c), 5, 11, 14, 15 and 17(a) through 17(g) of this Agreement shall be deemed incorporated by this reference in this Section 16 and the license to use the Free Version of the Service granted under this Section 16.


17. MISCELLANEOUS

(a) Customer shall not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, whether by contract, merger or operation of the law, without INK’s prior written consent. In the event of any merger of Customer or a sale of substantially all of the assets of Customer in which Customer is not the surviving entity, Customer may assign or transfer any licenses granted under this Agreement without INK’s prior written consent; provided, that Customer provides INK with written notice of such transfer within thirty days of such merger or sale. Any assignment or delegation in breach of this Section 17(a) shall be void.  This Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.

(b) All notices or approvals required or permitted under this Agreement must be given in writing and delivered to the appropriate party at the address set forth in this Agreement or in any Order Form delivered in connection with this Agreement.

(c) The waiver of compliance with or breach of any term or condition of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other failure to comply or breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement. Unless otherwise specified herein, the rights and remedies of INK set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

(d) THIS AGREE­MENT WILL BE GOVERNED BY AND INTER­PRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES.  INK AND CUSTOMER HEREBY IRREVOCABLY AGREE ON BEHALF OF THEMSELVES THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN AN APPROPRIATE FEDERAL OR STATE COURT IN THE STATE OF TEXAS LOCATED IN HARRIS COUNTY.

(e) Unless otherwise specified herein, the rights and remedies of INK set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

(f) This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of business organization or agency relationship.

Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement.  This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto.

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