Chime V5 Terms of Use
Last updated: March 2024
THIS AGREEMENT ('AGREEMENT') IS A LEGAL CONTRACT BETWEEN YOU (‘CUSTOMER’) AND INVITRIX LLC, dba INSTANT TECHNOLOGIES (‘INSTANT’). THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THESE TERMS OF SERVICE EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR ANY OTHER DOCUMENTATION THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS ‘YOU’ OR ‘YOUR’ OR ‘CUSTOMER’ SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCT/SERVICES.
IF YOU ARE PROVIDED ACCESS TO A FREE TRIAL OR FREE ACCOUNT FOR OUR PRODUCTS/SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR FREE ACCOUNT.
The “Effective Date” of this Agreement is the date that is the earlier of: (a) Customer's initial access to any Product/Services or (b) the effective date of the first Order Form referencing this Agreement.
Modifications to this Agreement: From time to time, Instant may modify this Agreement. Unless otherwise specified by Instant, changes become effective for Customer upon renewal of Customer's current subscription term, or entry into a new Order Form. Customer may be required to click to accept or otherwise agree to the updated Agreement before renewing a subscription term or entering into a new Order Form, but in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version.
The parties hereby agree to the following:
1 DEFINITIONS
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
1.1“Account-Related Information” means contact information, payment information, and biographical information about Customer’s representatives and contacts used for marketing, opening new user accounts to use Instant Technologies’ Products/Services, and to maintain existing accounts.
1.2 “Affiliate” of a party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.
1.3 “Agents” / “Managers” means individuals who are authorized by Customers to use the Software, for whom subscriptions to the Products/Services have been ordered.
1.4 “Customer” means any customer of Instant Technologies who or which is being provided with the Products/Services as set out in the Agreement.
1.5 “Customer Data/Content” means all electronic data or information submitted by Customers to the Products/Services.
1.6 “Customer Property” means any application submitted to the Products/Services for testing.
1.7 “Deliverable” means any software, equipment consultations, documentation and/or other materials prepared by Instant for Customer as described in a PO or SOW.
1.8 “Documentation” means the technical user documentation provided with the Products/Services.
1.9 “Fees” means the fees (as specified in each Order Form) payable by Customer to Instant for the Products/Services to Customer.
1.10 “Laws” means all applicable local, state, federal, foreign and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
1.11 “Malicious Code” means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.12 “Non-Instant Applications” means online applications and offline software products provided by entities or individuals other than Instant and are clearly identified as such, and that interoperate with the Services.
1.13 “Open Source Software” means any open source, community or other free code or libraries of any type, including, without limitation, any code which is made generally available on the Internet without charge.
1.14 “Order Form" (Purchase Order or P.O.) means the documents for placing orders pursuant to this Agreement that are entered into between Instant and Customer (or Affiliates of Instant and Customer) from time to time, including addenda and supplements thereto. By entering into an Order Form pursuant to this Agreement, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement. Order Forms shall be deemed incorporated into this Agreement by reference.
1.15 “Personal Information” means any information that identifies, relates to, describes, or is capable of being associated with, or could reasonably be linked, directly or indirectly, to an identified or identifiable living natural person, including but not limited to: (i) Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name, social security number, driver’s license number, government identification card number, passport number, or other similar identifiers; (ii) any patient, medical records or other protected or regulated health information; (iii) any financial information (including bank account or payment card numbers) or any other information subject to regulation or protection under specific laws or regulations; or (iv) information defined as “personal information,” “personally identifiable information,” “personal data,” or similar expressions under applicable privacy laws or data security Laws.
1.16 “Professional Services” means the services to be provided by Instant to Customer as described in a Purchase Order or SOW.
1.17 “Service(s)” means Instant Technologies’ proprietary software solution(s) including both Products and Services, described in the applicable Order Form. Subject to the terms herein, references to the Service(s) also include the Documentation. For clarity herein, the word “Service(s)” will refer to either/both “Product(s)” or “Service(s)”.
1.18 “Statement of Work” or “SOW” means a statement of work for Professional Services and/or Deliverables that is executed by the parties.
1.19 “Test Environment” means virtual machines, physical electronic devices, and device emulators on which Customer may use the Services to run tests.
1.20 “User Guide” means the user guide for the Products/Services, as updated from time to time by Instant.
2 SERVICES
2.1 Access to Services. Customer will purchase and Instant Technologies will provide the specific licenses as specified in the applicable order form. Customer may access and use these licenses during the subscription term solely for its own benefit and in accordance with the terms and conditions of this Agreement, along with the Documentation, and will abide by any scope of use restrictions designated in the applicable Order Form.
2.2 Instant’s Responsibilities for the Products/Services. The Products/Services shall be made available by Instant subject to any unavailability caused by circumstances beyond Instant’s reasonable control, including any force majeure events as contemplated in Section 10.10 and any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within Instant’s possession or reasonable control, and denial of service attacks. The Services may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation. Instant shall attempt to notify Customer of scheduled and unscheduled network outages that are expected to last more than four (4) hours and that may affect the Services. Instant shall be entitled to change the Services during the Term provided that Instant will not materially reduce the capabilities provided by the Services.
2.3 Permitted Users and Restrictions. Use of and access to the licenses is permitted by and only by the Customer and Affiliates specified in the applicable Order Form (“Permitted Users”). Customer shall not (and shall not authorize any third party to): (a) copy, modify, distribute or license the Software or documentation; (b) rent, lease, sublicense, resell, modify, translate, decompile, reverse engineer or disassemble the Software; (c) create derivative works based upon the Software or merge the Software with another product; (d) network the Software or any part thereof; (e) remove or obscure any proprietary rights, notices or labels on the Software (except to the extent Customer is so permitted); (f) frame or mirror any content forming part of the Services; (g) circumvent any user limits or other timing, use or functionality restrictions built into the Services; (h) access the Services in order to build a competitive service or to copy any ideas, features, functions or graphics of the Services. Any copies that Customer is permitted to make pursuant to this Agreement shall be subject to this Agreement and must contain the same copyright and other proprietary notices that appear on or in the Software.
2.4 Ownership and Proprietary Rights. Instant owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights), in and to the Services and the User Guide. This Agreement provides Customer only a license, and no ownership of any intellectual property. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that only Instant shall have the right to maintain, enhance or otherwise modify the Services. If Customer provides Instant with reports of defects in the Services or proposes or suggests any changes or modifications (collectively “Feedback”), Instant shall have the right to use and exploit such Feedback including, without limitation, the incorporation of such Feedback into Instant’s software products and/or services, without any obligation to Customer.
2.5 Agent/Manager Subscriptions. Unless otherwise specified in the applicable Order Form, (i) access to the Products is purchased as subscriptions and may be accessed by no more than the specified number of Agent/Managers, (ii) additional Agent/Manager subscriptions may be added during the applicable subscription term, prorated for the remainder of the subscription term in effect at the time the additional Agent/Manager subscriptions are added, and (iii) the added Agent/Manager subscriptions shall terminate on the same date as the pre-existing subscriptions. Agent/Manager subscriptions are for designated Agent/Managers only and cannot be shared or used by more than one Agent/Manager but may be reassigned to new Agent/Managers replacing the former who no longer require ongoing use of the Products.
2.6 Professional Services. Upon execution of a Purchase Order by the parties and subject to the terms and conditions set forth in Schedule A, Customer may retain Instant to provide Professional Services (including the development of Deliverables) for Customer, all as described in such Purchase Order. If Customer submits a purchase order, such order shall not be binding upon Instant until accepted by Instant. Once an order has been accepted, it shall be subject to the terms and conditions of this Agreement (such terms superseding any and all pre-printed terms and/or conditions within such order).
2.7 Customer Data. Instant shall have the limited right to use the Customer Data to provide the Services in accordance with this Agreement. Subject to the limited rights granted to Instant pursuant to this Agreement, Instant acquires no right, title or interest from Customer under this Agreement in or to Customer Data, including any intellectual property rights therein.
3 SERVICES SETUP AND OPERATION
3.1 Support. Instant shall provide basic support for the Services to Customer at no additional charge and/or upgraded support if purchased by Customer. For the purposes of this Agreement, “Support” means (i) fielding each initial call on a Services problem or other inquiry from a Customer; (ii) generating and issuing a trouble ticket containing a reference/tracking number (iii) to the extent reasonably possible, identifying the problem or performance deficiency in the Services; (iv) attempted resolution of the problem; (v) where such problem has not been resolved, preparation of an error notification in relation to the problem or performance deficiency; (vi) managing communications and expectations with the Customer
3.2 White Labelling. If mutually agreed by the parties in writing, Instant shall brand the Services with Customer-specific branding. The Services shall also be branded with “powered by Instant Technologies” marks and logos as the parties mutually agree. The Services shall in all cases retain any relevant intellectual property notices as may be determined to be appropriate by Instant. The Customer-specific branding will be applied to the Services by Instant for the fees specified in the applicable SOW or Purchase Order for such Professional Services. Instant shall only use any Customer-specific branding materials provided to Instant for the purposes of re-branding the Services as contemplated in this Section 3.2 and for the operation of the white-labeled Services.
3.3 Integration with Non-Instant Services. The Services may contain features designed to interoperate with Non-Instant Applications. To use such features, Customers may be required to obtain access to such Non-Instant Applications from their providers. If the provider of any such Non-Instant Application ceases to make the Non-Instant Application available for interoperation with the corresponding Service features on reasonable terms, Instant may cease providing such Service features without entitling Customers to any refund, credit, or other compensation.
3.4 Instant Protection of Customer Data. Instant shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Instant shall not (a) modify Customer Data except to the extent required to provide the Services, (b) disclose Customer Data except as compelled by law in accordance with Section 5.5 or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services and prevent or address service or technical problems in connection with Customer support matters.
3.5 Customer Responsibilities. Customer shall be responsible for compliance with Instant’s policies and procedures applicable to the Services and be responsible for the accuracy, quality and legality of the Customer Data and of the means by which it was acquired. Customer shall not: (a) make the Services available to anyone other than Customer and Users; (b) use the Services to store or transmit: deceptive, fraudulent, illegal, infringing, libelous, obscene, defamatory, threatening, harmful to minors, pornographic, indecent, harassing, hateful, religiously, racially or ethnically offensive, unlawful or tortious material; (c) store or transmit material in violation of third-party privacy rights; (d) use the Services to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; or (f) attempt to gain unauthorized access to the Services or their related systems or networks; (g) use the Services with any Customer Content that contains viruses, bots, worms, scripting exploits or other similar materials or could otherwise cause damage to Instant Technologies or any third party. Customer shall, solely at its own cost, employ at least one experienced technical person who is knowledgeable concerning the functions, specifications, and advantages of the Services.
3.6 Usage Limitations. If Instant opts to impose Services limitations on all customers, such as but not limited to disk storage space, application programming interface calls, Instant will use commercially reasonable efforts to provide at least one (1) month written notice of such limitations to Customer.
3.7 Usage Data. Notwithstanding anything to the contrary herein, Customer agrees that Instant Technologies may obtain technical data about Customer’s use of the Services that is non-personally identifiable with respect to Customer (“Usage Data”), and Instant Technologies may use the Usage Data to analyze, improve, market, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement. For clarity, this does not give Instant Technologies the right to identify Customer as the source of any Usage Data.
4 PAYMENT TERMS AND TAXES
4.1 Fees. Customer shall pay all Fees specified in all Order Forms pursuant to this Agreement. Except as otherwise specified in this Agreement or in an Order Form, (i) Fees are based on Agent/Manager licenses purchased and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, and (iii) the number of Agent/Manager subscriptions purchased cannot be decreased during the relevant subscription term stated on the applicable Order Form. Subscription Fees are based on periods that begin on the subscription start date and each anniversary thereof; therefore, Fees for Agent/Manager subscriptions added in the middle of a performance period will be charged at a pro-rated term for the remaining time in the subscription term. Instant may add new fees and charges from time to time and may adjust Customer’s recurring fees.
4.2 Payment Terms. All payments under this Agreement shall be made within thirty (30) days after the receipt of the applicable invoice. All amounts are payable in United States dollars. Any amounts not paid when due shall accrue interest at the lessor of one and one half percent (1.5%) per month (19.57% annually) or the maximum rate allowed by law. If Customer has been delinquent in its payments, Instant may condition future subscription renewals and Order Forms on prepayment or payment terms shorter than those specified in this Section 4.2.
4.3 Suspension of Services and Acceleration. Instant Technologies reserves the right to suspend Customer’s access to the Services if: (i) Customer’s account is thirty (30) days or more overdue; (ii) Instant determines that Customer has breached General Restrictions or Customer Obligations; or (iii) Instant determines that suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Services. Instant will give Customer at least seven (7) days prior notice that its account is overdue, before suspending the Services on that basis. Instant Technologies will have no liability for taking action as permitted above in this section. However, unless this Agreement has been terminated, Instant will cooperate with Customer to restore access to the Services once it verifies that Customer has resolved the condition requiring suspension.
4.4 Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, goods and services, harmonized, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases pursuant to this Agreement. If Instant has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Instant with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Instant is solely responsible for taxes assessable against Instant based on its income, property and employees.
5 CONFIDENTIALITY
5.1 Definition of Confidential Information. “Confidential Information” means any and all information disclosed by either party to the other which is marked “confidential” or “proprietary”, or which the recipient knows or has reason to know is regarded by the disclosing party as such, including oral information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such a disclosure; (d) is independently developed by the receiving party; (e) has been approved for release with the disclosing party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
5.2 Obligation. Neither party will use any Confidential Information of the disclosing party except as necessary to exercise its rights or perform its obligations pursuant to this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, consultants and legal advisors who need access to such Confidential Information in order to affect the intent of the Agreement and who have entered into written confidentiality agreements with it as least as restrictive as those in this Section 5. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information.
5.3 Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
5.4 Other Exemptions. Notwithstanding the foregoing provisions in this Section 5, the parties may disclose this Agreement: (i) as otherwise required by law, (ii) in confidence to legal counsel, (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed disclosure, to the extent such treatment is available, (iv) in connection with the enforcement of this Agreement or any rights under this Agreement, provided that reasonable measures are used to preserve the confidentiality of this Agreement, (v) in confidence, to auditors, accountants, legal counsel and their advisors, (vi) in confidence, in connection with a change of control or potential change of control of a party or an Affiliate of a party, provided that reasonable measures are used to preserve the confidentiality of the Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties shall reasonably cooperate to limit disclosure.
5.5 Compelled Disclosure. If a receiving party is compelled by law to disclose Confidential Information of a disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party's cost, if the disclosing party wishes to contest the disclosure.
6 WARRANTIES AND DISCLAIMERS
6.1 Warranties. Each party warrants to the other party that: (i) such party is a business duly formed or incorporated, validly existing, and in good standing under the laws of its jurisdiction of formation or incorporation; (ii) such party has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of such party; (iv) as of the Effective Date, there is no outstanding litigation, arbitrated matter or other dispute to which such party is a party, which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on such party’s ability to fulfill its obligations under this Agreement; and (v) no consent, approval or withholding of objection is required from any entity, including any governmental authority, with respect to such party’s entering into this Agreement.
Instant warrants that (i) the Products/Services shall perform materially in accordance with the User Guide, (ii) the functionality of the Products/Services will not be materially decreased during a subscription term, and (iii) Instant will not transmit Malicious Code to any Customers provided that if a Customer or a User uploads a file containing Malicious Code into the Services and later downloads that file, this warranty shall not apply to such file. Instant’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Instant to use commercially reasonable efforts to correct the reported non-conformity, or if Instant determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a pro-rated refund of any fees Customer has paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) for use towards a Trial Subscription.
6.2 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6, THE SERVICES AND THE USER GUIDE ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND. EACH PARTY AND ITS LICENSORS AND/OR SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICES AND/OR THE USER GUIDE PROVIDED UNDER THIS AGREEMENT AND EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY, CUSTOMER ACKNOWLEDGES THAT INSTANT DOES NOT REPRESENT OR WARRANT OR PROVIDE ANY CONDITIONS THAT THE SERVICES AND/OR THE USER GUIDE WILL BE ERROR-FREE OR WORK WITHOUT INTERRUPTIONS.
6.3 Specific Disclaimers. TO THE EXTENT PERMITTED BY LAW, INSTANT TECHNOLOGIES IS NOT RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM (I) THE TRANSFER OF DATA OVER PUBLIC COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, OR (II) ANY DELAY OR DELIVERY FAILURE ON THE PART OF ANY OTHER SERVICE PROVIDER NOT CONTRACTED BY US AND OUTSIDE OUR REASONABLE CONTROL, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CUSTOMER ACKNOWLEDGES THAT INSTANT TECHNOLOGIES CANNOT GUARANTEE THE ABSOLUTE PREVENTION OF CYBER-ATTACKS SUCH AS HACKING, SPYWARE, AND VIRUSES. ACCORDINGLY, INSTANT TECHNOLOGIES SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED DISCLOSURE, LOSS OR DESTRUCTION OF CUSTOMER DATA ARISING FROM SUCH RISKS AS LONG AS SUCH RISK CANNOT BE ATTRIBUTED TO NEGLIGANCE OR FAILURE ON INSTANT TECHNOLOGIES’ PART.
7 INDEMNITY
7.1 Instant Indemnity. Instant will defend Customer from and against any claim by a third party alleging that a Service when used as authorized under this Agreement infringes any Intellectual Property Rights and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by Instant (including reasonable attorneys' fees) resulting from such claim provided that (i) Customer promptly notifies Instant of any Customer Claims, (ii) Customer permits Instant to control the defense and settlement of such Customer Claims (provided that Customer may participate with counsel of its own choosing, at its own expense), and (iii) Customer will assist Instant in defending or settling such Customer Claims. Instant shall not be liable for any settlement amounts entered into by Customer without Instant’s prior written approval. If Instant has reason to believe that it would be subject to an injunction or continuing damages based on the Services, then Instant shall be entitled to either modify the Services to make it non-infringing and/or remove the misappropriated material, replace the Services or portion thereof with a service or materials that provide substantially the same functionality or information, or, if neither of the foregoing is commercially practicable, require the Customers to cease using the Services, as the case may be, and refund to Customer any license fees that have been pre-paid by Customer but are unused (pro-rated license fees). The foregoing notwithstanding, Instant shall have no liability for a claim of infringement or misappropriation to the extent caused by (i) the combination of Services with any other service, software, data or products not provided by Instant, which claim would have been avoided if the Services had not been so combined; or (ii) the use of any material provided by any Customers; or (iii) any breach by Customer of this Agreement or any Services policies and/or procedures. THE FOREGOING IS INSTANT’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
7.2 Customer Indemnity. Customer shall indemnify, defend and hold harmless and/or settle at its expense, any and all claims, costs, damages, losses, liabilities, expenses, actions or proceedings against Instant and its Affiliates and their officers, directors, employees and contractors (the “Instant Indemnified Parties”) to the extent arising out of or relating to (a) bodily injury or damage to tangible or real property, including death, caused by or arising out of any negligent act or omission of Customer or those for whom Customer is responsible for at law; (b) the provision, use or failure of any product or service provided by Customer; (c) any representations or warranties made by Customer in respect to the Services or any portions thereof beyond those authorized in this Agreement; (d) any infringement or misappropriate of any intellectual property or other rights by any Customer Data; (e) any violation of any law or regulation by Customer or any of its Affiliates or any of its or their officers, directors, employees, contractors or agents, and Customer shall pay all damages finally awarded by a court of competent jurisdiction to such third party against any of the Instant Indemnified Parties, or any settlement amounts agreed by Customer in writing; subject to the conditions that, Instant shall notify Customer promptly of any Instant Claims, permit Customer to control the defense and settlement of such Instant Claims (provided that Instant may participate with counsel of its own choosing, at its own expense), and assist Customer, at Customer’s expense, in defending or settling such Instant Claims. Customer shall not be liable for any settlement amounts entered into by Instant without Customer’s prior written approval.
8 TERM AND TERMINATION
8.1 Term. This Agreement shall commence as of the Effective Date and shall continue in effect for an initial term of one (1) year (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
8.2 Termination. This Agreement may be terminated as follows: (a) if Customer fails to make any payment due hereunder within thirty (30) days after receiving written notice from Instant that such payment is delinquent, Instant may terminate this Agreement on written notice to Customer at any time following the end of such period; (b) if either party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching party may terminate this Agreement on written notice at any time following the end of such thirty (30) day period; (c) if either party ceases operation without a successor; (d) if either party becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they come due) or makes an assignment for the benefit of creditors, then the other party may terminate this Agreement immediately upon notice; or (e) without cause, with a sixty (60) day written notice.
8.3 Term of Purchased Subscriptions. Subscriptions purchased by Customer commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall have the option to renew for additional periods, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
8.4 Survival. The following sections shall survive the termination or expiration of this Agreement for any reason: 1, 2.4, 2.7 (for sixty (60) days after expiration or termination of the Agreement), 5, 6, 7, 8.4, 8.5, 8.6, 9, 10, in addition to any payment obligations incurred prior to the expiration or termination of this Agreement.
8.5 Effect of Termination. Upon expiration or termination of this Agreement, Customer shall cease all use of the Services, and shall promptly return all copies of the User Guide to Instant or else destroy those copies and provide assurances (signed by an officer of Customer) to Instant that it has done so, in addition to deleting any Instant confidential information in its possession.
8.6 Rights upon Termination. Termination is not an exclusive remedy and is in addition to other rights or remedies that may be available. Upon any termination for cause by Instant, Customer shall pay any unpaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any expiration or termination relieve Customer of the obligation to pay any Fees payable to Instant for the period prior to the effective date of termination. If this Agreement is not terminated for a breach by Customer and if each of the parties is amenable to such an arrangement, then for any Customers to whom Instant has sold subscriptions for the Services during the Term , Instant will continue to provide Services for such Customers for the remainder of their then-current subscription period (as of the effective date of termination of expiration of this Agreement) subject to payment of the applicable fees for such Customers and subject to Customer’s continued compliance with the terms and conditions of this Agreement, which shall continue in respect to such Customers. In the interest of absolute clarity on this, it is agreed between both the parties that if the Agreement is not terminated for a breach by Customer and if each of the parties is amenable to such an arrangement, then once Instant has sold a subscription for the Services to a Customer during the Term, ongoing revenue for the remaining term of such Customer’s subscription (as of the effective date of termination of expiration of this Agreement) will continue to be shared as per the clauses in this Agreement and Instant shall continue to provide services to such Customer in the manner prescribed in this Agreement for the remainder of such subscription term.
9 LIMITATION OF LIABILITY
9.1 WITH THE EXCEPTION OF A PARTY’S OBLIGATION TO PROVIDE INDEMNIFICATION UNDER THIS AGREEMENT AND EACH PARTY’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, OR ITS LICENSORS OR SUPPLIERS BY VIRTUE OF THIS AGREEMENT, HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS SET FORTH IN THIS SECTION 9 DO NOT APPLY TO ANY INFRINGEMENT OR MISAPPROPRIATION BY EITHER PARTY OR ITS CONTRACTORS OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT SHALL INSTANT, ITS AFFILIATES OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS BE LIABLE TO CUSTOMER FOR MORE THAN THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES UP TO THE GREATER OF U.S. $10,000.00 (OR EQUIVALENT IN LOCAL CURRENCY) OR THE REMAINING PRORATED CHARGES FOR THE PRODUCTS/SERVICES THAT ARE THE SUBJECT OF THE CLAIM, WHICHEVER IS LESSER, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THE FOREGOING LIMITATION ON DIRECT DAMAGES SHALL NOT APPLY TO ANY BREACH OF CONFIDENTIALITY OBLIGATIONS OR INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS UNDER SECTION 7. THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK.
10 GENERAL
10.1 Forms. The terms, provisions or conditions of any purchase order or other business form or written authorization used by either party will have no effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of the receiving party to object to those terms, provisions or conditions.
10.2 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
10.3 Assignment. Neither party may assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior express written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Instant may assign this Agreement (including all Order Forms) with notice to Customer in connection with any merger or acquisition or sale (such notice to be delivered within sixty (60) days of such assignment). Such assignment will not in any event relieve the assignor of any obligations that accrue under this Agreement prior to any such assignment. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in violation of this Section 10.3 shall be null & void.
10.4 Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
10.5 Choice of Law; Jurisdiction; Venue. This Agreement shall be governed by the laws of New Hampshire, USA, without regard to its conflict of law principles. The parties irrevocably attorn to the exclusive jurisdiction of the courts located in or encompassing Rockingham or Strafford Counties, New Hampshire, USA . No choice of laws rules of any jurisdiction shall apply to this Agreement. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
10.6 Compliance with Laws. Each party shall comply with all applicable laws and regulations regarding the general conduct of business including without limitation all relevant anti-corruption and anti-bribery laws. Customer agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries. Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction.
10.7 Notices. All notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the addresses set forth in this Agreement. Notice shall be considered delivered and effective on the earlier of actual receipt or when (a) emailed; (b) the day following transmission if sent by telex, telegram or facsimile when followed by written confirmation by registered overnight carrier or certified mail; or (c) one (1) day after posting when sent by registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (d) five (5) days after posting when sent by certified mail. Notice shall be sent to the parties at the addresses set forth in this Agreement or at such other address as shall be specified by either party to the other in a notice in accordance with this Section 10.7.
10.8 Promotional Rights. Customer agrees that Instant Technologies may refer Customer’s name, trademarks, logos, feedback, comments, suggestions, case studies, testimonials, name and pictures of individual issuing testimonials or comments in its marketing, advertising, customer references and website.
10.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
10.10 Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.
10.11 Headings and References. The headings and captions used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
10.12 Counterparts. This Agreement may be executed in counterparts, both of which, when taken together, shall constitute a signed agreement binding upon the parties. Delivery of a signed counterpart of this Agreement by facsimile transmission, in paper copy by courier or regular mail or as an email attachment in PDF format shall constitute valid and sufficient delivery thereof.
10.13 Third-Party Beneficiaries. Customer hereby acknowledges that there may be third-party beneficiaries to this Agreement.
10.14 Instant Affiliates. Instant may use one or more Affiliates to perform its obligations under this Agreement, provided that such use will not affect Instant’s obligations hereunder.
10.15 Complete Understanding. This Agreement (as may be updated from time to time) including all Order Forms, Statements of Work and Schedules, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement even if accepted by either party in writing. If any provision in this Agreement is invalid or unenforceable under applicable law, then it shall be, to that extent, deemed omitted and the remaining provisions will continue in full force and effect.
10.16 Privacy Policy. Privacy Policy explains the practices that apply to your information when you use Chime. Your ongoing use of Chime signifies your consent to the information practices disclosed in our Privacy Policy. You can review our Privacy Policy for Chime.
SCHEDULE A
PROFESSIONAL SERVICES TERMS AND CONDITIONS
The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Schedule shall have the meaning ascribed to such words in the Agreement.
Instant is willing to provide Professional Services (including the development of Deliverables) on a time and materials or fixed price basis according to the terms and conditions set forth in this Schedule A or such other form as the parties may agree in writing. Such Professional Services may include but are not limited to: instruction and training on the use of Instant products and services; installation, configuration, maintenance and testing of Instant products and services; evaluation, design and implementation of system architectures; business and network planning; and custom software development.
1. General. All Professional Services to be performed and Deliverables to be developed by Instant at Customer’s request shall be described on the Purchase Order or in a Statement of Work. Upon execution by authorized representatives of each party, each Purchase Order or Statement of Work shall become a part of the Agreement. Each Purchase Order or Statement of Work will incorporate the terms and conditions of this Schedule A.
2. Instant’s Obligations. Instant shall perform Professional Services and develop Deliverables for Customer as described in any Purchase Order or Statement of Work agreed to by the parties. Instant shall perform such Professional Services and develop Deliverables in a reasonable, professional and workmanlike manner in keeping with industry standards and practices. Instant shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services and developing the Deliverables. Customer acknowledges and agrees that Instant may retain the services of independent consultants (“Subcontractors”) from time to time to perform, or to assist Instant in performing the Professional Services and developing the Deliverables under this Schedule A or a Purchase Order or Statement of Work. Instant personnel or Subcontractors shall remain under the direction and control of Instant. Instant shall in the performance of any Professional Services and development of any Deliverables use reasonable efforts to comply with all Customer procedures and rules which have been communicated to Instant in writing.
3. Customer Obligations. Customer acknowledges and agrees that performance of Professional Services is heavily dependent upon information and responses to be provided by Customer. Accordingly, in addition to any specific responsibilities set out in the PO or SOW, Customer shall: (i) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by Instant, to allow Instant to perform the Professional Services and develop the Deliverables; (ii) carry out reviews and respond to requests for approval and information on a timely basis; (iii) ensure that Instant has available to them personnel familiar with Customer’s requirements and with the expertise necessary to permit Instant to undertake and complete the Professional Services; and (iv) Customer shall make available to Instant all equipment, material, information, data, network access and/or facilities that Instant may reasonably require to carry out its obligations. Customer acknowledges that any delay on its part in the performance of its obligations may have an impact on Instant’s performance of its activities under this Agreement or under any Purchase Order or Statement of Work and Instant shall not be liable for any delay to the extent caused by Customer’s failure to fulfill any of its requirements under the Agreement, this Schedule A and/or any PO or SOW.
Customer shall designate a Project Management Contact for the purposes of communication with Instant. The Project Management Contact shall be the primary point of contact for Customer with Instant for matters relating to the provision of Professional Services and development of Deliverables.
4. Price and Payment. Customer shall pay Instant the fees set forth in the Purchase Order or Statement of Work either on a time and materials basis at Instant’s then-current price, or on a fixed price per project basis to be negotiated between the parties and set forth in the applicable PO or SOW. If applicable, Customer shall reimburse Instant for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by Instant in the performance of any Professional Services or development of any Deliverables, provided that such expenses are approved in advance in writing by Customer. The fees for Professional Services and development of Deliverables shall exclude all applicable federal, state, provincial, value-added, goods and services, harmonized and local taxes (other than taxes on Instant’s net income).
Unless otherwise specified in the Purchase Order or Statement of Work, Instant shall invoice Customer for fees for Professional Services and development of Deliverables provided pursuant to this Agreement or a Purchase Order or Statement of Work upfront or on agreed upon intervals. All such fees shall be paid within thirty (30) days of the date of the invoice.
5. Term and Termination. This Schedule A shall remain in effect only during the Term of the Agreement. Unless provided otherwise in writing, Customer may terminate a Statement of Work without cause upon thirty (30) days prior written notice to Instant. If Customer terminates a Statement of Work for convenience, Customer shall pay Instant the full fee for any Professional Services performed (including all other costs for which Instant has the right to reimbursement) up to the effective date of termination of such Statement of Work, provided that if the fee for any Deliverables are based on identified milestones being achieved by Instant, Customer shall pay Instant the pro-rated fee for the next scheduled milestone with such pro-rated fee to be determined based on the percentage of time between the commencement of work on such milestone and the effective date of termination. For greater certainty, if the time from the commencement of work on the next milestone to the scheduled achievement date for that milestone is three (3) months, and if the effective date of termination occurs at the two (2) month point in such timeframe, then Customer shall pay Instant two-thirds of the fee for such milestone.
Each party shall be entitled to immediately terminate a Statement of Work for cause in the event of: (i) the material breach by the other party of its obligations under this Schedule A or a Statement of Work, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) the filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) the assignment or attempt to assign the Agreement to a third party (except as permitted in the Agreement). In the event of termination for cause, the non-defaulting party may terminate this Schedule A and any Statements of Work hereunder. The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.
6. Intellectual Property Rights. Except as set forth in the Agreement or otherwise set forth in the relevant Statement of Work, Instant shall own all right, title and interest and all intellectual property rights to any Deliverables created by Instant pursuant to this Schedule A or any Purchase Order or Statement of Work hereunder. Instant shall retain all right, title and interest and all intellectual property rights to any and all Instant proprietary information and Instant software (including, without limitation, any modifications to the Services and/or the User Guide).
7. Indemnification. Each party shall indemnify and defend the other party against any claims and costs awarded by a court of competent jurisdiction (including reasonable attorney’s fees) arising out of or relating to the other party’s negligence or intentional misconduct where actions result in death or bodily injury to any person or damage to tangible or real property, provided that: (a) the indemnified party gives the indemnifying party prompt notice in writing of each claim received by the indemnified party, (b) the indemnified party gives the indemnifying party the right to control and direct the investigation, defense and settlement of each claim, and (c) indemnified party has not compromised or settled the claim.
8. Non-Solicitation. Customer shall not enter into a contract for or of service with an employee of Instant who has been involved with, directly or indirectly, any of the Professional Services or development of any Deliverables hereunder within twelve (12) months of such employee's last involvement with such Professional Services or Deliverables. Customer shall be permitted to make generalized employment searches, by advertisements or by engaging firms to conduct searches which are not focused on the employees of Instant.