Terms of Service
Last modified on February 26, 2013
This Agreement contains the terms and conditions that govern your access to and use of the Software and services (including associated APIs), the Infomous Content, the Infomous Marks, the Infomous web site, and any other product or service provided by us under this Agreement (collectively, “Services”), and is an agreement between Infomous, Inc. (“Infomous,” “we,” “us,” or “our”) and you or the entity you represent (“you“ or “your”) . Refer to Section 1 for definitions of certain capitalized terms used in this Agreement.
“API” means an application program interface.
“Content” means software (including machine images), data, text, audio, video, images or other content.
“Documentation” means the any technical and operations manuals and specifications for the Services provided by us to you, whether electronically or otherwise.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses your Content; or (b) otherwise accesses or uses the Services.
“Infomous Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Infomous and its affiliates that we may make available to you in connection with this Agreement.
“Infomous Content” means Content that Infomous or any of its affiliates make available in connection with the Services or on the Infomous web site to allow access to and use of the Services, including WSDLs; Documentation; sample code; software libraries; command line tools; and other related technology. Infomous Content does not include the Services.
“Services” means the Software and services (including associated APIs), the Infomous Content, the Infomous Marks, the Infomous web site, and any other product or service provided by us under this Agreement. Services do not include Third Party Content.
“Software” means certain software and related documentation named Infomous that includes software that runs on a hosted server and is accessible via the Internet by use of an internet browser.
“Suggestions” means all suggested improvements to the Services that you provide to us.
“Term” means the term of this Agreement described in Section 7.A.
“WSDL” means Web Services Description Language.
You may access and use the Services in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Services.
B. Your Account
You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party and, except to the extent caused by our breach of this Agreement, we and our affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen.
C. Support to You
During the term of the Agreement and at no additional charge, Infomous shall install Software upgrades, if and when they are made generally available. Software may automatically report version number or other diagnostic information and may automatically download upgrades to the Software to update, enhance and further develop Services, including providing bug fixes, patches, enhanced functions, missing plug-ins and new versions. If you would like any customization services or support for the Services other than the support we generally provide to other users of the Services without charge, you may enter into a Professional Service Agreement with us at our standard rates and terms then available.
D. LINKS and acceptable use
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content") are the sole responsibility of the person from which such Content originated. Third parties may provide links to other World Wide Web sites or resources. We have no control over such sites and resources and you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
Infomous reserves the right, but shall have no obligation, to pre-screen, flag, filter, refuse, modify or move any Content available via the Services. You agree that you are responsible for your own conduct and any Content that you create, transmit or display while using Infomous services and for any consequences thereof. You agree to use Infomous services only for purposes that are legal, proper and in accordance with this Agreement and any applicable policies or guidelines, including your company’s data usage and privacy policies. You agree that you will not engage in any activity that interferes with or disrupts Services or servers or networks connected to Services. To report any activity or Content that may violate the terms of this Agreement, please contact us.
You agree not to upload to, distribute, or otherwise publish through the Infomous web site any Content, information or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under US or international law; or (c) includes any bugs, viruses, worms trap doors, Trojan horses or other harmful code or properties.
Users outside of the United States agree to comply with their own local rules regarding online conduct and acceptable content, including laws regulating the export of data to and from the United States or your country of residence.
A. To the Service
We may change, discontinue, or obsolete any of the Services (including the Services as a whole) or change or remove features or functionality of the Service from time to time.
B. To the API’s
We may change, discontinue or obsolete any APIs for the Services from time to time but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or made obsolete for 12 months after the change, discontinuation, or obsolescence (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities).
By using Services, you acknowledge and agree that we may access, preserve, and disclose your account information and any information associated with that account if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce the terms of this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam), or (d) protect against imminent harm to the rights, property or safety of us, our users or the public as required or permitted by law.
You understand that the technical processing and transmission of Services may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks, devices or services.
A. Operation and Use of Services
You are solely responsible for the development, content, operation, maintenance, and use of the Services with respect to your systems. For example, you are solely responsible for:
(a) the technical operation of your systems, including ensuring that calls you make to any Service are compatible with then-current APIs for that Service;
(b) use in compliance with this Agreement and the law;
(c) any claims relating to your use of the Services; and
(d) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that your use of the Services violate such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.
B. Other Security and Backup
You are responsible for properly configuring and using the Services and taking your own steps to maintain appropriate security, protection and backup of your systems, which may include the use of encryption technology to protect your systems from unauthorized access and routine archiving of your systems.
C. End User Violations
You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, and use of the Services. You are responsible for End Users’ use of the Services. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User’s access to the Services.
D. End User Support
You are responsible for providing customer service (if any) to End Users. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
We may suspend your or any End User’s right to access or use any portion or all of the Services immediately upon notice to you if we determine:
(a) your or an End User’s use of the Services (i) poses a security risk to the Services or any other Infomous customer, (ii) may adversely impact the Services or the systems or use of Services by any other Infomous customer, or (iii) may subject us, our affiliates, or any third party to liability; or
(b) you are, or any End User is, in breach of this Agreement.
Our right to suspend your or any End User’s right to access or use the Services is in addition to our right to terminate this Agreement pursuant to Section 7.
7. Term; Termination
The Term of this Agreement will commence on the Effective Date and will remain in effect unless terminated by you or us in accordance with this Section 7.
B. Termination for convenience
You may terminate this Agreement for any reason by closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement at any time for any reason.
C. Effect of Termination
Generally. Upon any termination of this Agreement:
(a) all your rights under this Agreement immediately terminate; and
(d) Sections 4, 7.C, 8.D-F, 9, 10, and 12 will continue to apply in accordance with their terms.
As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Services. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term: (a) access and use the Services solely in accordance with this Agreement; and (b) copy and use the Infomous Content solely in connection with your permitted use of the Services. Except as provided in this Section 8 you obtain no rights under this Agreement from us or our licensors to the Services, including any related intellectual property rights.
B. License Restrictions
Neither you nor any End User may use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any Software, (b) reverse engineer, disassemble, or decompile such Software or apply any other process or procedure to derive the source code of any Software, or (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas. All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Services you have used.
You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) that may be affixed to or contained within the Services.
If you provide any Suggestions to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any End Users’ use of the Services (including use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any End User; or (c) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
We will promptly notify you of any claim subject to Section 8.E, but our failure to promptly notify you will only affect your obligations under Section 8.E to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
THE SERVICES ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES, INCLUDING ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN SECTIONS 9 AND 10 WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
We may modify this Agreement (including any Policies) at any time by posting a revised version on the Infomous web site or by otherwise notifying you in accordance with Section 12.H. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Infomous web site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.
You will not disclose Infomous Confidential Information during the Term or at any time during the 5 year period following the end of the Term.
You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Services. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement or other written agreement between us and you. We may name you as a client on our web site during the Term.
C. Force Majeure
We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
E. No Third Party Beneficiaries
This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
F. U.S. Government Rights
The Services are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
G. Import and Export Compliance
In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Services, including your use of the Services and your provision of Services to End Users, and the region in which any of the foregoing occur.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Infomous web site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Infomous web site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. (b) To Us. To give us notice under this Agreement, you must contact Infomous as follows: (i) by facsimile transmission to 617-492-1505; or (ii) by personal delivery, overnight courier or registered or certified mail to Infomous Inc., 10 Fawcett Street, Cambridge, MA 02152, Attn: Director of Contracts. We may update the facsimile number or address for notices to us by posting a notice on the Infomous web site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent. (c) Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
J. No Waivers
The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
L. Governing Law; Venue
The laws of the Commonwealth of Massachusetts, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. Any dispute relating in any way to the Services or this Agreement where a party seeks aggregate relief of $7,500 or more will be adjudicated in any state or federal court in Suffolk County, Massachusetts. You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our, our affiliates, or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
M. Entire Agreement
This Agreement is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 3 of this Agreement contain our and our affiliates’ entire obligation regarding the security, privacy and confidentiality of Your Content. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document.
N. Section headings
The section headings in the Agreement are for convenience only and have no legal or contractual effect.