TERMS OF SERVICE
THESE TERMS OF SERVICE (“TERMS”) APPLY TO THE 4INSITE PLATFORM (“PLATFORM”).
4INSITE, LLC, A COLORADO LIMITED LIABILITY COMPANY (“4INSITE”), IS WILLING TO GRANT YOU THE RIGHT TO ACCESS THE PLATFORM ONLY UPON THE CONDITION THAT YOU ACCEPT THESE TERMS. YOUR USE OF THE 4INSITE PLATFORM INDICATES YOUR ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE PLATFORM.
“YOU” AND “YOUR” AS USED IN THESE TERMS MEANS THE USER THAT IS AUTHORIZED TO ACCESS THE PLATFORM. IF YOU ARE ACTING ON BEHALF OF YOUR EMPLOYER OR YOUR COMPANY (COLLECTIVELY, “COMPANY”), YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND YOUR COMPANY TO THESE TERMS. IN SUCH CASE THE TERM YOU AND YOUR SHALL ALSO INCLUDE YOUR COMPANY.
A. ACCESS
Subject to your compliance with these Terms, 4INSITE grants you the non-exclusive, non-transferable right to access and use the Platform for your Company’s internal purposes only and subject to any provisions in any applicable agreement your Company has entered under which the Platform is being provided, including but not limited to, any agreement under which your Company is receiving services from a third-party provider (“Third-Party Provider”) authorized by 4INSITE to offer the Platform to you (“Third-Party Services Contract”) or any agreement between your Company and 4INSITE under which 4INSITE is providing you access to the Platform (“4INSITE Order Terms”).
·
In addition, your access may be limited by further restrictions in the Facilities Contract or the 4INSITE Order Terms, including limitations on the number of users, time of use, feature or modules that can be accessed or amount, volume or types data that can be inputted or uploaded (“Contract Restrictions”). You agree to be bound by those Contract Restrictions as applicable.
You may also be given the opportunity to download a mobile application (“Mobile App”) to access the Platform. 4INSITE hereby grants you a non-exclusive, non-transferable, revocable license to download the App only to a single approved Apple or Android device (“Device”) as permitted by the applicable terms of any app store in which the Mobile App is offered and in accordance with these Terms. You may only use the Mobile App for purposes of accessing the Platform in compliance with these Terms. Any obligations, rights, restrictions or provisions in these Terms that apply to the Platform also apply to the Mobile App, unless otherwise stated.
4INSITE reserves all rights in the Platform and Mobile App not expressly granted hereunder.
B. RESTRICTIONS ON USE
You shall not copy, nor encourage or allow copying of, the Platform or any instructional or operational documentation (“Documentation”) provided by 4INSITE relating to the use of the Platform. For avoidance of doubt, Documentation does not include “User Content” as described in Section F below. You shall not cause or permit the disclosure, copying, renting, licensing, sublicensing, leasing, dissemination, or other distribution of the Platform or the Documentation by any means or in any form without 4INSITE’s prior written consent. You shall not reverse engineer, decompile, disassemble, or attempt to derive the source code for the Platform, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You shall not modify, adapt, translate, or otherwise create derivative works based on the Platform or Documentation, or use the Platform or Documentation as a base to create a competing or similar product.
C. NO MODIFICATION
You shall not alter or modify the Platform or the Documentation. You are not authorized to integrate or use the Platform with any software except software authorized by 4INSITE or specified in the Documentation.
D. ELIGIBILITY AND REGISTRATION
You must be at least 16 years old and be lawfully employed by Company and authorized to access the Platform on your Company’s behalf. You represent you have the legal capacity to enter and be bound by these Terms.to use the Platform. You must be an authorized user designated by your Company under either Third-Party Services Contract or the 4INSITE Order Terms.
You may need to register with 4INSITE in order to access and use the Platform and download and use the Mobile App. You agree to (a) provide accurate, current, and complete information about yourself as prompted (including your email address) and (b) maintain and update your information (including your email address) to keep it accurate, current, and complete. You agree to keep your registration information up to date at all times. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, 4INSITE reserves the right to terminate your use of the Platform. Any personal data you provide in connection with your registration and use of the Platform will be governed by these Terms and the 4INSITE Privacy Policy.
E. FEEDBACK
If you provide suggestions, comments, or enhancement, function or feature requests or other feedback to 4INSITE with respect to the Platform (collectively, “Feedback”), you hereby grant and agree to grant to 4INSITE the royalty-free, transferable, irrevocable, worldwide, fully paid-up and perpetual right to use, modify, disclose, reproduce, license (with rights to sublicense through multiple tiers of sublicensees), sell, offer for sale, distribute, import, and otherwise exploit the Feedback, including but not limited to, as part of the Platform, without restriction or obligation of any kind or nature.
F. USER CONTENT
You may be authorized to upload and maintain certain content to the Platform, including, but not limited to, photos, text, reports, data, and other material (collectively the “User Content”). You hereby grant to 4INSITE and any Third-Party Provider, as applicable, a non-exclusive, worldwide, royalty-free, fully paid up and fully transferable worldwide license to collect, store, reproduce, maintain, modify, distribute, transmit, display, and perform the User Content in connection with the Platform and to the extent otherwise necessary for 4INSITE to perform its obligations under these Terms and any applicable Facilities Contract or 4INSITE Order Terms. You shall not upload any User Content that infringes upon any Intellectual Property Rights (as defined in Section I below), or User Content that is obscene, defamatory, discriminatory, offensive, or in violation of any applicable law. You and your Company shall indemnify and hold harmless 4INSITE and any Third-Party Provider, and their affiliated, subsidiary and related entities, and each of their officers, directors, employees and agents, from and against any and all liabilities, claims, lawsuit, penalties, costs, and expenses (including attorneys’ fees) arising out of or relating to the User Content.
G. PROHIBITED ACTIVITIES
You agree to use the Platform in compliance with these Terms and not use the Platform in a manner prohibited by any applicable international, federal, state, or local law or regulation. You shall not use the Platform to gain any unauthorized access or in any way disrupt or damage any network, system, operation, or property of 4INSITE or any Third-Party Provider or interfere or disrupt any other user’s use of the Platform. In addition, you shall not use the Platform for any of the following:
1. Violating any applicable law or regulation;
2. Posting or transmitting content you do not have the right to post or transmit;
3. Posting or transmitting content that infringes or violates a third party’s trademark, patent, trade secret, copyright, publicity, privacy, or other right;
4. Posting or transmitting content that is unlawful, untrue, stalking, harassing, libelous, defamatory, abusive, threatening, obscene, hateful, harmful, or otherwise objectionable as determined in 4INSITE’s sole discretion;
5. Harming, or attempting to harm, minors in any way;
6. Attempting to intercept, collect, or store data about third parties without their knowledge or consent;
7. Accessing, tampering with, or using non-public areas of any Third-Party Provider’s or 4INSITE’s Intranet, computer systems or networks;
8. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
9. Sending or attempting to send unsolicited messages, including without limitation, promotions or advertisements for products or services, “pyramid schemes,” “spam,” “chain mail,” or “junk mail”;
10. Using, or attempting to use, the Platform to send altered, deceptive, or false source-identifying information;
11. Interfering or attempting to interfere with the access of any user, host, or network, including without limitation, sending a “virus” to the Platform, overloading, “flooding,” “spamming,” “crashing,” or “mail-bombing” the Platform; or
12. Impersonating any person or entity or falsely stating or otherwise misrepresenting your affiliation with a person or entity; forging headers or otherwise manipulating identifiers to disguise the origin of any material transmitted through the Platform.
H. PERSONAL DATA
The Platform may permit you to upload your own personal data as well as the personal data of other persons. You are solely responsible for ensuring that the collection, processing, and use of all such personal data complies with all applicable laws relating to the protection of personal data (“Data Protection Laws”). You are solely responsible for providing all required notices and obtaining all necessary consents under applicable Data Protection Laws with respect to any personal data that you upload to the Platform, including any consents necessary for the transfer of such personal data to 4INSITE in the United States and to enable 4INSITE to use the personal data in providing the Platform. To the extent 4INSITE is collecting personal data directly from you, it uses such data for purposes of providing the Platform and for the other purposes specified in its Privacy Policy. Please note that if you use the Mobile App, 4INSITE may track your geographical location through your Device if you have opted-in to such tracking. By submitting such personal data and using the Platform, you acknowledge and agree to the 4INSITE Privacy Policy and to the transfer of your personal data to the United States, which may have less protections for personal data than the laws where you reside.
I. INTELLECTUAL PROPERTY RIGHTS
Excepting only the access granted in Section A, all right, title, and interest (including, without limitation, all Intellectual Property Rights as defined below) in and to the Platform, including but not limited to, any modification, enhancements or new features or functionality created for your or your Company, shall remain exclusively with 4INSITE. 4INSITE is a trademark of 4INSITE, LLC. Unauthorized use is prohibited. Though not authorized to do so, should you or any party acting on your behalf create any derivative works of the Platform, you hereby assign, agree to assign, and shall cause such third party to assign any and all right, title, and interest (including, without limitation, Intellectual Property Rights) in such derivative works to 4INSITE.
“Intellectual Property Rights” means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing throughout the universe (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, design rights, and other industrial property rights, (e) all registrations, applications (including continuations, continuations-in-part, and divisions thereof), renewals, extensions, reissues, and re-examinations thereof now or hereafter in force (including all rights in any of the foregoing), and (f) all other intellectual and industrial property rights (of every kind and nature and however designated) (including logos, “rental” rights, and rights to remuneration), whether arising by operation of law, contract, license, or otherwise.
This Section I supersedes and prevails over any conflicting provision in any Third-Party Services Contract with respect to ownership of Intellectual Property Rights in the Platform.
J. CONFIDENTIALITY
You acknowledge that the Platform and Documentation, and any other information, content, photos, or other material made available to you on or through the Platform contain proprietary and confidential property of 4INSITE (collectively, “Confidential Information”). You agree to maintain such Confidential Information as confidential, and not to disclose to any third party. You will only use the Confidential Information in connection with your use of the Platform under the terms and conditions of these Terms.
K. PASSWORDS
You are responsible for maintaining the confidentiality and security of any user identification and password (“Platform Credentials”) assigned to you for access and use of the Platform, and you are responsible for all acts or omissions that occur in connection any use of your account or Platform Credentials. Platofrm Credentials are 4INSITE’s Confidential Information subject to Section J of these Terms. You must immediately notify 4INSITE if you become aware that your Platform Credentials have been lost, stolen, disabled, misappropriated, or used in any unauthorized manner.
L. NO CIRCUMVENTION OF SECURITY
You shall not circumvent or otherwise interfere with any user authentication or security of the Platform. You will immediately notify 4INSITE of any breach, or attempted breach, of security known to you.
M. EQUIPMENT AND INTERNET ACCESS
You are solely responsible for (i) obtaining, deploying, and maintaining all Devices, computer hardware, software, and communications equipment needed to access and use the Platform, (ii) contracting with third parties that provide services related to your ability to access and use the Platform (e.g., ISP, telecommunications, mobile device etc.) and (iii) paying all third-party fees and access charges incurred while accessing and using the Platform. 4INSITE will not be required to supply any hardware, software or equipment to you by reason of these Terms.
N. THIRD PARTY WEBSITE ACCESS
The Platform may allow you to access third-party websites (“Third-Party Sites”). Your access to and use of any Third-Party Sites, including but not limited to any goods, services, or information made available for such sites, is governed by the terms and conditions found at each Third-Party Site, if any. Third-Party Sites are not owned or operated by 4INSITE or its affiliates. YOUR USE OF THIRD-PARTY SITES IS AT YOUR OWN RISK. NEITHER 4INSITE NOR ITS AFFILIATES MAKE ANY WARRANTIES, CONDITIONS, INDEMNITIES, OR REPRESENTATIONS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, INTEGRATION, ACCURACY, SECURITY, AVAILABILITY, SATISFACTORY QUALITY, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE THIRD-PARTY SITES.
O. COMPLIANCE WITH LAWS
You agree to comply with all applicable laws, rules, orders, and regulations, including, but not limited to, Data Protection Laws, in utilizing the Platform.
P. SUPPORT SERVICES
4INSITE may or may not provide you with support services related to the Platform (“Support Services”). Any updates, upgrades, bug fixes or supplemental software code provided to you as part of the Support Services shall be considered part of the Platform and subject to these Terms. All right, title, and interest in the Support Services, including without limitation, any Intellectual Property Rights, shall be owned exclusively by 4NSITE.
Q. TERM AND TERMINATION
These Terms are effective until terminated. You may terminate these Terms at any time by discontinuing your use of the Platform and notifying 4INSITE in writing. These Terms shall terminate automatically if you fail to comply with any term or condition contained herein, if a Third-Party Provider ceases providing services to you or your Company, or the Third-Party Services Contract expires or is terminated, or if the 4INSITE Order Terms expire or are terminated, as applicable. Upon termination of these Terms, you shall immediately discontinue the use of the Platform and shall return, or provide certification to 4INSITE of the destruction of, all copies of the Documentation and Confidential Information. Sections B (“Restrictions on Use”), C (“No Modification”), E (“Feedback”), F (“User Content”), G (“Prohibited Activities”), H (“Personal Data”), I (“Intellectual Property Rights”), J (“Confidentiality”), L (“No Circumvention of Security”), N (“Third Party Website Access”), O (“Compliance with Laws”), Q (“Term and Termination”), R (“Indemnification”), S (“U.S. Government Restricted Rights”), T (“Export Restrictions”), U (“Limited Warranty/Disclaimers”), V (“Limitation of Liability”), W(“Governing Law and Dispute Resolution”), and X (“General Provisions”) shall survive termination or expiration of these Terms or your rights to use the Platform.
R. INDEMNIFICATION
You and your employer agree to indemnify, defend, and hold harmless 4INSITE and its parent, subsidiary, affiliate, and related companies, licensors, and suppliers, and each of their officers, directors, stockholders, employees, representatives, and agents, from and against any and all losses, damages, costs, expenses (including reasonable court costs and attorneys’ fees), fines, or claims arising from or relating to any claim (i) connected with your use of the Platform or Documentation; (ii) that you breached these Terms; (iii) the User Content; or (iv) that the Platform or Documentation was used by you in connection with the duplication, modification, transmission, distribution of, or any other action relating to any content or materials in violation of another party’s Intellectual Property Rights or in violation of any law, except for claims that the Platform or Documentation itself, if used in compliance with these Terms (excluding User Content), violates the Intellectual Property Rights of any third party.
S. U.S. GOVERNMENT RESTRICTED RIGHTS
The Platform and Documentation are a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101 (Jan. 2011), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. §12.212, 48 C.F.R. §227.7202, and 48 C.F.R. §12.211, respectively. Consistent with 48 C.F.R. §12.212, and 48 C.F.R. §§227.7202-1 through 227.7202-4, all U.S. Government end users’ rights to use, modify, reproduce, release, perform, display, or disclose the Platform and the Documentation are as provided by these Terms. This U.S. Government Rights clause, consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the Platform.
T. EXPORT RESTRICTIONS
You acknowledge that the Platform, Documentation, and/or technical data associated therewith (“Technical Data”) are subject to the export control laws of the United States. You agree that you shall comply with all applicable U.S. export control laws and regulations, and shall not export or re-export the Platform, Documentation and/or Technical Data, or direct products thereof, except as authorized by U.S. law.
Without limiting the foregoing, you acknowledge that you are not a person or entity prohibited from receiving U.S. exports, are not included in the U.S. Department of the Treasury, Office of Foreign Asset Control (OFAC) list of Specially Designated Nationals and Blocked Persons, US Department of Commerce, Bureau of Industry and Security (BIS) Denied Persons List, BIS Entity List, or BIS Unverified List and not a person or entity which engages in the development, production, or stockpiling of missiles or nuclear, chemical, or biological weapons. You further acknowledge that you are not located in, and are not a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or the Crimea region of Ukraine, or any other U.S.-embargoed country or area. You agree that you will not export or re-export the Platform or Documentation to any country, person, entity, or end user that is subject to US export restrictions. Restricted countries currently include, but may not be limited to: Cuba, Iran, Libya, North Korea, Sudan, Syria, or the Crimea region of Ukraine, or any other U.S.-embargoed country or area.
You agree not to export, re-export, transfer, or divert the Platform, Documentation, and/or Technical Data to any national of the above-listed countries, or to any destination, end-use or end-user that is prohibited or restricted under such United States export control laws and regulations, except as specifically authorized by the United States Department of Commerce or other appropriate United States Government agency.
U. LIMITED WARRANTY/DISCLAIMERS
THE PLATFORM AND DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, 4INSITE AND ALL THIRD-PARTY SERVICE PROVIDERS DISCLAIM ALL WARRANTIES OR CONDITIONS, EXPRESS AND IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OR CONDITIONS WITH RESPECT TO THE 4INSITE PLATFORM’S OR THE DOCUMENTATION’S TITLE, NON-INFRINGEMENT OF THIRD PARTY’S RIGHTS, QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
WITHOUT LIMITING THE FOREGOING, NEITHER 4INSITE NOR ITS AFFILIATED COMPANIES NOR ANY THIRD-PARTY SERVICE PROVIDER WARRANT THAT THE PLATFORM SHALL BE OPERABLE, UNINTERRUPTED OR ERROR-FREE, OR THAT IT MEETS YOUR REQUIREMENTS, OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR HARDWARE.
THE ENTIRE RISK AS TO THE USE, QUALITY, AND PERFORMANCE OF THE PLATFORM AND DOCUMENTATION IS WITH YOU. NEITHER 4INSITE NOR ITS AFFILIATED COMPANIES ARE OBLIGATED TO PROVIDE ANY SUPPORT SERVICES TO YOU. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF ALL WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
V. LIMITATION OF LIABILITY
IN NO EVENT WILL 4INSITE OR ITS AFFILIATED COMPANIES OR ANY THIRD-PARTY SERVICE PROVIDER (OR THEIR OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, OR REPRESENTATIVES) BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, RELIANCE, INDIRECT, OR CONSEQUENTIAL DAMAGES, (INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF USE, LOSS OF ANTICIPATED PROFITS, LOSS OF GOODWILL OR LOSS OF BUSINESS REPUTATION) RESULTING FROM EITHER THE PLATFORM OR DOCUMENTATION OR BOTH, EVEN IF 4INSITE OR ITS AFFILIATED COMPANIES OR ANY THIRD-PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
4INSITE’S OR ITS AFFILIATED COMPANIES’ OR ANY THIRD-PARTY SERVICE PROVIDER’S LIABILITY TO YOU OR ANY RELATED THIRD PARTY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE 4INSITE PLATFORM. CLAIMS FOR DAMAGES MUST BE MADE WITHIN ONE (1) YEAR OF THE CIRCUMSTANCES GIVEN RISE TO THE CLAIM OR BE FOREVER BARRED. YOU WAIVE ANY CLAIM THAT THESE LIMITATIONS OR EXCLUSIONS DEPRIVE YOU OF AN ADEQUATE REMEDY.
W. GOVERNING LAW AND DISPUTE RESOLUTION
These Terms will be governed by the laws of the State of California, excluding (i) the application of its conflicts of law rules; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980; and (v) the Uniform Computer Information Transactions Act (and all successor or amended acts that are or may be adopted in any jurisdiction).
Each party will voluntarily appear before, and hereby consents and submits to the exclusive jurisdiction of the state and federal courts in the County of Sacramento, California in connection with any suit, action, proceeding, or counterclaim against it arising out of or in any way relating to this Agreement. The prevailing party in any such litigation or dispute shall be entitled to recover from the other party its costs and fees, including, but not limited to, attorneys’ fees, associated with such litigation or dispute.
X. GENERAL PROVISIONS
1. These Terms constitute the entire agreement between the parties, and supersede all prior written or oral agreements pertaining to the subject matter hereof. These Terms shall not be amended, altered, or changed by any purchase order or other instrument submitted by you, whether formally rejected by 4INSITE or not. In the event of any conflict between these Terms and any Third-Party Services Contract or 4INSITE Order Terms, these Terms shall prevail.
2. The failure of any party at any time to require performance of any provision of these Terms shall in no manner affect the right of such party at a later time to enforce the same. No waiver by any party of any condition or of any breach of these Terms, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such condition or of any breach of any such term or any other term set forth in these Terms.
3. If any provision of these Terms is inoperative or unenforceable for any reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision in these Terms invalid, inoperative, or unenforceable. The invalidity of any portion of these Terms shall not affect the remaining portions of these Terms.
4. You shall be responsible for and shall pay, and shall reimburse 4INSITE on request if 4INSITE is required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on 4INSITE’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on your use of the Platform or the Documentation.
5. The governing language of these Terms, the Platform and the Documentation is English.
6. You acknowledge that (i) you have read and understand these Terms; (ii) these Terms have the same force and effect as a signed agreement; (iii) issuance of these Terms do not constitute general publication of the Platform and Documentation; and (iv) the individual accepting these Terms on behalf of a corporation or other legal entity personally represents that he or she is duly authorized to accept these Terms on behalf of such entity, and that these Terms are binding upon such entity.
7. You shall not directly or indirectly sell, transfer, assign, convey, pledge, encumber, or otherwise dispose of the Terms or your right to access the Platform, whether by operation of law or otherwise, or in connection with a reorganization, merger, or sale of assets or stock, without the prior written consent of 4INSITE. Any sales transfer, assignment, conveyance, pledge, or disposal in violation of this section shall be null and void.