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Inesonic Terms Of Service
Version 1.0 – April 6, 2021



1. Access and Use

1.1. Access And Use. Subject to payment of all applicable fees set forth in the Order or payment or Indirect Order through a Channel Partner (as appropriate), Inesonic grants the Customer, during the Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) Inesonic Services and applicable Documentation solely for the Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and in the quantity specified in the applicable Order. The Customer will operate Inesonic Services in accordance with the Documentation and be responsible for the acts and omissions of its Authorized Users.

1.2. Access And Use Restrictions.  The Customer shall not (directly or indirectly): (a) copy or reproduce Inesonic Services or the Documentation except as permitted under this Agreement; (b) exceed the subscribed quantities, users or other entitlement measures of Inesonic Services as set forth in the applicable Order; (c) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in Inesonic Services, Documentation or Inesonic Intellectual Property; (d) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to the Customer under this Agreement to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble Inesonic Services; (f) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of Inesonic Services, attempt to recreate Inesonic Services or use Inesonic Services for any competitive purpose; (g) create, translate or otherwise prepare derivative works based upon Inesonic Services except as allowed by the Inesonic EULA, Documentation or Inesonic Intellectual Property; (h) interfere with or disrupt the integrity or performance of Inesonic Services; (i) attempt to gain unauthorized access to Inesonic Services or its related systems or networks, or perform unauthorized penetrating testing on Inesonic Services; (j) use Inesonic Services to infringe on the Intellectual Property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libelous or otherwise unlawful data; or (k) send, store or process in Inesonic Services any personal health data, credit card data, personal financial data or other such sensitive regulated, or any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Customer’s authorized use of Inesonic Services is subject to the purchased quantities and features set forth in the applicable Order for Inesonic Services. Fees for Inesonic Services are based on use of Inesonic Services in a manner consistent with the Documentation. If the Customer uses Inesonic Services in a manner that is outside or in violation of the Documentation, then the Customer will cooperate with Inesonic to address any applicable burden on Inesonic Services or pay an additional mutually agreed upon fee.

1.3. Login Access To Inesonic Services. The Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to Inesonic Services, (ii) that such Authorized Users have been trained in proper use of Inesonic Services, and (iii) proper usage of passwords, tokens and access procedures with respect to logging into Inesonic Services. Inesonic reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in this Agreement, in which case Inesonic will promptly inform the Customer in writing of such refusal or cancellation. In addition to the rights set forth in this Agreement, Inesonic may suspend the Customer’s access and use of Inesonic Services if there is an unusual and material spike or increase in the Customer’s use of Inesonic Services and Inesonic reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of Inesonic Services. Inesonic will provide notice prior to such suspension if permitted by applicable law or unless Inesonic reasonably believes that providing such notice poses a risk to the security of Inesonic Services. Inesonic will promptly reinstate the Customer’s access and use once the issue has been resolved.

1.4. Trial Services. If the Customer is using a free trial, a proof of concept version of Inesonic Services, a beta version of Inesonic Services, or using Inesonic Services on any other free-of-charge basis as specified in an Order including any related support services to the extent provided by Inesonic in its sole discretion (collectively, “Trial Services”), Inesonic makes such Trial Services available to the Customer until the earlier of: (i) the end of the free trial or proof of concept period or beta testing period as communicated by Inesonic or specified in an Order; (ii) the start date of any purchased version of such SaaS Products; or (iii) written notice of termination from Inesonic (“Trial Services Period”). Inesonic grants the Customer, during the Trial Services Period, a non-exclusive, non-transferable right to access and use the Trial Services for Customer’s internal evaluation purposes in accordance with the Documentation and subject to the access and use restrictions set forth in this Agreement. The Customer is authorized to use Trial Services only for evaluation and not for any business or productive purposes, unless otherwise authorized by Inesonic in writing. Any data the Customer enters into the Trial Services and any configurations made to the Trial Services by or for the Customer during the term of such Trial Services will be permanently lost unless the Customer: (a) has purchased a subscription to the same SaaS Products as covered by the Trial Services; or (b) exports such data or configurations before the end of such free period. There is no guarantee that features or functions of the Trial Services will be available, or if available will be the same, in the general release version of Inesonic Services, and the Customer should review Inesonic Services features and functions before making a purchase. Inesonic will be under no obligation to provide the Customer any maintenance or support services with respect to the Trial Services. Notwithstanding anything to the contrary, Inesonic provides the Trial Services “as is” and “as available” without any warranties or representations of any kind. To the extent permitted by law, Inesonic disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. The Customer assumes all risks and all costs associated with its use of the Trial Services. The Customer’s sole and exclusive remedy in case of any dissatisfaction or Inesonic breach of the Agreement with respect to such Trial Services is termination of the Trial Services. Any obligations on behalf of Inesonic to indemnify, defend, or hold harmless under this Agreement are not applicable to the Customers using Trial Services.

2. Payment and Taxes

2.1. Payment Terms. The Customer shall pay all invoices within thirty (30) days of date of invoice, without any deduction or set-off (except for any amount disputed promptly and in writing by the Customer in good faith), and payment will be sent to the address specified by Inesonic. Any amounts arising in relation to this Agreement not paid when due will be subject to a late charge of one and one-half percent (1½%) per month on the unpaid balance or the maximum rate allowed by law, whichever is less. Without prejudice to the Customer’s rights set out elsewhere in this Agreement, all fees are non-refundable and payable in advance. Inesonic may invoice for purchases of products upon delivery.

2.2. Taxes. The fees and charges covered by this Agreement are exclusive of any Indirect Taxes imposed or levied, currently or in the future based on applicable legislation, on Inesonic Services. Unless otherwise agreed between the Parties, the Customer will be liable for compliance with reporting and payment of such Indirect Taxes in its tax jurisdiction. Inesonic shall include the Indirect Taxes on its invoice to the Customer and remit such Indirect Taxes collected to the relevant authority if required by applicable law. For the avoidance of doubt, Inesonic will be responsible for direct taxes imposed on Inesonic’s net income or gross receipts in its tax jurisdiction.

2.3. Indirect Orders. If the Customer places an Indirect Order, then Inesonic grants the rights described in this Agreement in consideration for and subject to: (a) the Customer’s agreement to comply with the pricing and payment terms of the Indirect Order, to be separately agreed between the Customer and the applicable Channel Partner; and (b) the Customer’s agreement to comply with its obligations set forth in this Agreement (including the restrictions on use of Inesonic Services). Notwithstanding the foregoing, the final sales price or rate shall be freely and independently determined between the applicable Channel Partner and the Customer. For the avoidance of doubt, in the case of such an Indirect Order, any indication in this Agreement of an agreement between the Customer and Insonic for the price payable by the Customer for such Indirect Order shall be null and void and not form a binding part of this Agreement and the provisions of this Agreement related to payment terms, pricing and/or order procedures shall not apply.

3. Rights in Intellectual Property

3.1. Intellectual Property. Except for the rights granted in this Agreement, all rights, title, and interest in and to Inesonic Services, Documentation, and Inesonic Intellectual Property are hereby reserved by Inesonic, its Affiliates or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by the Customer, its Affiliates or licensors. Nothing in this Agreement shall (a) transfer ownership of any Intellectual Property rights from one Party to the other, or (b) provide either Party a right to use the other Party’s trade names, logos, or trademarks.

4. Security and Processing of Personal Data

4.1. Customer Data Content. As between Inesonic and the Customer, the Customer is solely responsible for: (i) the content, quality and accuracy of Customer Data as made available by the Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of Inesonic Services.  Please refer to the Inesonic, LLC Privacy Policy at https://www.inesonic.com/privacy-policy/ for more details regarding privacy and personal data protection.

5. Warranties

5.1. Compliance with Law. Each Party shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.

5.2. Disclaimer. Any and all warranties, expressed, incorporated or implied, are limited to the extent and period in this Agreement. To the maximum extent allowed by applicable law, Inesonic disclaims all other warranties, conditions and other terms, whether express or implied or incorporated into this Agreement by statute, common law or otherwise, including the implied conditions and warranties of merchantability and fitness for a particular purpose. Inesonic will have no liability for delays, failures or losses attributable or related in any way to the use or implementation of third-party software or services not provided by Inesonic.

6. Indemnification

6.1. Customer Data and Use Indemnity. The Customer shall defend and indemnify Inesonic and/or its Affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity) resulting from an alleged infringement or violation by the Customer of such third-party’s patent, copyright, trademark, and trade secrets.

6.2. Process. Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to: (a) the indemnified Party’s prompt notification to the indemnifying Party of any claims in writing; and (b) the indemnified Party providing the indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld). At the indemnifying Party’s request, the indemnified Party shall reasonably cooperate with the indemnifying Party in defending or settling any claim.

6.3. Remedies. If Inesonic Services becomes, or Inesonic reasonably determines that Inesonic Services is likely to become, subject to a claim of infringement for which Inesonic must indemnify the Customer as described above, Inesonic may at its option and expense: (a) procure for the Customer the right to continue to access and use Inesonic Services, (b) replace or modify Inesonic Services so that it becomes non-infringing without causing a material adverse effect on the functionality provided by the infringing Inesonic Services, or (c) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the affected Order and provide the Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected Inesonic Service. This section states the sole liability of Inesonic and the exclusive remedy of Customer with respect to any indemnification claims arising out of or related to this Agreement.

7. Limitation of Liability

7.1. Maximum Liability. In no event shall Inesonic’s total liability to You under this Agreement for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00).

7.2. No Consequential Damages. Neither Party will have any liability to the other Party for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with this Agreement, however caused, whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, and whether or not the Party has been advised of the possibility of such damages.

7.3. Construction. This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by applicable law, including liability for (a) death or bodily injury caused by a Party’s negligence; or (b) gross negligence, willful misconduct, or fraud.

8. Assignment. Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon written notice to the other Party.

9. Restricted Rights and Export Control

9.1. Export Control. You may not use, export, re-export, import, sell or transfer the Inesonic Software and Inesonic Services except as authorized by United States law, the laws of the jurisdiction in which You obtained the Inesonic Software and Inesonic Services, and any other applicable laws and regulations. In particular, but without limitation, the Inesonic Software and Inesonic Services may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the Inesonic Software and Inesonic Services, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Inesonic Software and Inesonic Services for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons.

9.2. Government End User. The Inesonic Software and Inesonic Services and Documentation are “Commercial Items”, as that term is defined at 48 C.F.R.§2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

10. Professional Services.The Customer may separately purchase from Inesonic professional services in relation to Inesonic Services as may be generally available by Inesonic to its customers, pursuant to Inesonic’s then applicable professional services terms.

11. Term and Termination

11.1. Term. This Agreement will be effective upon signature by both Parties and shall remain in force during the applicable Subscription Term of Inesonic Services unless or until terminated by either Party pursuant to this section.

11.2. Effects of Termination/Expiration. Upon termination or expiration of an applicable Subscription Term: (i) Customer will have no further right to access or use Inesonic Services; and (ii) the customer shall, within thirty (30) days after termination of expiration of an applicable subscription term, return or destroy any tangible Confidential Information belonging to Inesonic, LLC. This excludes any Inesonic redistributable binaries required by the Customer’s software or products as allowed by the Inesonic EULA. Any Customer Data contained on Inesonic Services will be deleted within one-hundred and eighty (180) days of termination/expiration of Customer’s Subscription Term. Following termination of Inesonic Services, Inesonic may immediately deactivate Customer’s account. Any accrued rights and obligations will survive termination.

12. Miscellaneous

12.1. Independent Contractors. Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between Inesonic and the Customer, and neither Party will have the right, power or authority to obligate or bind the other in any manner whatsoever.

12.2. Notices. All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service; or (d) when provided via email when the sender has received a delivery/read receipt. Notices for Inesonic should be sent to the following addresses: (i) for physical Notices the address specified for Inesonic in section 13.4 “Governing Law and Jurisdiction” and; (ii) for electronic Notices to: contract-notices@inesonic.com.

12.3. Force Majeure. With the exception of the Customer’s payment obligations herein, neither Party will be liable to the other Party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such event, both Parties will resume performance promptly after the cause of such delay or failure has been removed.

12.4. Dispute Resolution; Governing Law. Any litigation or other dispute resolution between You and Inesonic arising out of or relating to this Agreement, the Inesonic Software and/or Inesonic Services will take place in the Idaho Fourth Judicial District, and You and Inesonic hereby consent to the personal jurisdiction of and exclusive venue in the state and federal courts within that District with respect any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of Idaho, except that body of Idaho law concerning conflicts of law. Notwithstanding the foregoing, the following shall apply as exceptions to You, but solely to the limited extent that You are entering into this Agreement for the sole purpose of acting on behalf of Your entity:

A. If You (as an entity entering into this Agreement) are an agency, instrumentality or department of the federal government of the United States, then this Agreement shall be governed in accordance with the laws of the United States of America, and in the absence of applicable federal law, the laws of the State of Idaho will apply. Further, and notwithstanding anything to the contrary in this Agreement (including but not limited to Section 6 (Indemnification)), all claims, demands, complaints and disputes will be subject to the Contract Disputes Act (41 U.S.C. §§601-613), the Tucker Act (28 U.S.C. § 1346(a) and § 1491), or the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2401-2402, 2671-2672, 2674-2680), as applicable, or other applicable governing authority;
B. If You (as an entity entering into this Agreement) are a U.S. public and accredited educational institution, then (a) this Agreement will be governed and construed in accordance with the laws of the state (within the U.S.) in which Your educational institution is domiciled, except that body of state law concerning conflicts of law; and (b) any litigation or other dispute resolution between You and Inesonic arising out of or relating to this Agreement, the Inesonic Software and Inesonic Services, or Your relationship with Inesonic will take place in federal court within the Fourth District Of Idaho, and You and Inesonic hereby consent to the personal jurisdiction of and exclusive venue of such District unless such consent is expressly prohibited by the laws of the state in which Your educational institution is domiciled; and
C. If You (as an entity entering into this Agreement) are an international, intergovernmental organization that has been conferred immunity from the jurisdiction of national courts through Your intergovernmental charter or agreement, then any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The place of arbitration shall be London, England; the language shall be English; and the number of arbitrators shall be three. Upon Inesonic’s request, You agree to provide evidence of Your status as an intergovernmental organization with such privileges and immunities

This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

12.5. Entire Agreement, Execution, and Modification. This Agreement supersedes all prior agreements and representations between the Parties regarding the subject matter of this Agreement. The terms and conditions contained in any Order issued by the Customer will be of no force or effect, even if the Order is accepted by Inesonic. Inesonic may make changes to these Terms of Service from time to time. If Inesonic makes a material change to any of the foregoing, Inesonic will inform the Customer by e-mail to the e-mail address(es) noted on the Order (or subsequently designated by the Customer in writing as a contact for notifications from Inesonic), or through a banner or other prominent notice within Inesonic Services. If the Customer does not agree to the change, the Customer must so notify Inesonic by e-mail to  contract-notices@inesonic.com within thirty (30) days after Inesonic’s notice. If the Customer so notifies Inesonic, then the Customer will remain governed by the most recent terms of service applicable to the Customer until the end of the then-current year of the Subscription Term and the updated terms shall apply upon the commencement of the subsequent Subscription Term.

12.6. Severability and Waiver. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Should any term or provision of this Agreement be declared void or unenforceable by any court of competent jurisdiction, the Parties intend that a substitute provision will be added to this Agreement that, to the greatest extent possible, achieves the intended commercial result of the original provision. The failure of either Party to enforce any rights granted to it hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

12.7. Definitions and Interpretation. The following definitions and rules of interpretation apply in this Agreement:

“Affiliate” means a company controlling, controlled by, or under common control with a Party (an entity will be deemed to have control if it owns over 50% of another entity).

“Agents” means Inesonic’s proprietary software, systems and locally-installed software agents and connectors that interact with Inesonic Services as may be provided by Inesonic in connection with Inesonic Services.

“Applicable Data Protection Laws” means the EU General Data Protection Regulation (2016/679) (“GDPR”), any applicable laws of EU member states implementing the GDPR (including the UK Data Protection Act 2018), and the California Consumer Privacy Act, in each case as amended, consolidated, re-enacted or replaced from time to time and only if and insofar as they apply.

“Authorized Users” means employees, agents, consultants, contractors, or vendors authorized by the Customer to use Inesonic Services solely for the internal use of the Customer and its Affiliates, subject to the terms and conditions of this Agreement.

“Channel Partner” means a third-party business entity that Inesonic has appointed as an approved partner to as applicable, distribute, re-sell and support Inesonic Services.

“Confidential Information” means all information provided by the disclosing Party to the receiving Party concerning the disclosing Party or its Affiliates’ business, products or services that is not generally known to the public, including information relating to customers, vendors, trade secrets, prices, products, services, computer programs and other intellectual property and any other information which a Party should reasonably understand to be considered Confidential Information whether or not such information is marked “Confidential” or contains such similar legend by the disclosing Party at the time of disclosure.

“Customer Data” means all data and/or content uploaded to Inesonic Services by the Customer (including where applicable Authorized Users), and in all data derived from it, including personal data. For the avoidance of doubt, Customer Data does not include Usage Data.

“Inesonic” means the Inesonic, LLC, and Idaho Limited Liability Company.

“Documentation” means the user guides, installation documents, reference documents, specifications, and other documents relating to Inesonic Services and Inesonic Software  that are made available from time to time by Inesonic in electronic or tangible form, but excluding any sales or marketing materials.

“Indirect Order” means an Order for the Software or Services from a Channel Partner of Customer’s choosing pursuant to an independent commercial agreement.

“Indirect Taxes” means excise, sales, use, gross-turnover, value added, goods and services tax or other similar types of indirect taxes, duties, customs or tariffs (however designated, levied or based and whether foreign or domestic, federal or state).

“Intellectual Property” means a Party’s proprietary material, technology, or processes including services, software tools, proprietary framework and methodology, hardware designs, algorithms, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned or licensed by a third party) and any derivatives, improvements, enhancements or extensions of such Intellectual Property conceived, reduced to practice, or developed.

“Notice” means any notice or other communication required or permitted under this Agreement.

“Order” means Inesonic’s quote accepted by the Customer via the Customer’s purchase order or other ordering document submitted to Inesonic (directly or indirectly through a Channel Partner) to order Inesonic Software and Inesonic Services, which references Inesonic Services, pricing, payment terms, quantities and other applicable terms set forth in an applicable Inesonic quote or ordering document.

“OSS Licenses” means the respective open source licenses that the Third-Party Materials are subject to.

“Prohibited Persons” means anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list.

“SaaS Products” means the software-as-a-service products specified in the Order as further described in the Documentation (including any updates and upgrades to Inesonic Services provided by Inesonic in its sole discretion, and any software, systems and locally-installed software agents and connectors that interact with Inesonic Services as may be provided by Inesonic in connection with Inesonic Services).

“Subscription Term” means the period of time during which the Customer is subscribed to Inesonic Services, as specified in an Order and which shall begin upon delivery of Inesonic Services.

“Suggestions” means, any ideas or suggestions for improvements, new features, functionalities, corrections, enhancements or changes to Inesonic Services suggested by Customer to Inesonic, which constitute Intellectual Property rights under applicable law.

“Third-Party Materials” means open source software programs that are made available by third parties under their respective OSS Licenses.

“Usage Data” means data generated in connection with the Customer’s access, use and configuration of Inesonic Services and data derived from it (e.g., types of applications or accounts utilized or interacting with Inesonic Services).

Any words following the terms including or include shall be regarded as examples only and not construed as an exhaustive list.

Should the Customer have any questions concerning this Agreement, or if the Customer desires to contact Inesonic for any reason, please e-mail us at: contract-notices@inesonic.com.