Last Revision Date: October 22, 2011
PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT”) CAREFULLY. THIS AGREEMENT FORMS A LEGALLY BINDING AGREEMENT BETWEEN YOU (“YOU,” “YOUR”. OR “CUSTOMER”) AND INFORBIX LLC (“INFORBIX”), AND GOVERNS YOUR USE OF THE INFORBIX SERVICE AND SOFTWARE (COLLECTIVELY, THE “SERVICE”). IF YOU ELECTRONICALLY ACCEPT THIS AGREEMENT, EXECUTE AND DELIVER THIS AGREEMENT, OR OTHERWISE USE OR DOWNLOAD THE SERVICE, YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.
IF YOU DO NOT ACCEPT ANY OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO USE THE SERVICE. If you are entering into this Agreement as an employee or representative of your employer, the terms “you,” “your” or “customer” include your employer and any other party on whose behalf you act. Inforbix may take any legal action against you to enforce this Agreement or to prevent the breach of this Agreement, as described more fully below. In addition to any other rights and remedies we may have, Inforbix may, without limitation, immediately terminate your use of the Service if we believe, in our sole discretion, that you are violating this Agreement or that you intend to do so.
This Agreement describes the terms and conditions upon which Inforbix will provide the Service, a SaaS suite of product data applications, to you. Subject to your acceptance of and compliance with this Agreement, Inforbix’s determination that you are an Eligible Customer (defined below), and your subsequent payment of any applicable fees, Inforbix will provide the Service to you as described herein. In order to use the Service, you may be issued an individual user name and password. You must safeguard your user name and password and keep them confidential, and you will be responsible for any use of the Service by means of your user name and password.
1. Changes to Service. Inforbix may at any time, and in its sole discretion, add, modify, discontinue, remove, or suspend any part of the Service, either temporarily or permanently, without notice and without liability to you. You hereby agree that such activities may occur at Inforbix’s sole discretion, and Inforbix may require you to agree to such changes before permitting you to continue to use the Service.
2. Changes to Terms. Inforbix may add to, change, or remove any part, term or condition of this Agreement at any time, without prior notice to you. It is your responsibility to check this Agreement periodically for changes. We will notify you of any material changes to this Agreement by amending the effective date above, or where, we deem appropriate, by notifying you via email. Your continued use of the Service after such amendment and notice constitutes your agreement to such changes.
3. Payment and Subscription Terms. This Agreement incorporates by reference the Inforbix’s pricing statement (the “Pricing Statement”) for the Services, which can be found here. The Service is available subject to the fees and terms of our Pricing Statement. We currently offer several subscription levels, which include different levels of services and options, including the number of files indexed by the Service, and are available for the fees currently stated in our Pricing Statement. You are solely responsible for all charges, fees, duties, taxes, and assessments arising out of any use of the Service by you or anyone else using your Inforbix account. We may at any time amend the rates and fees for the Service, and will notify all customers by email at least thirty (30) business days prior to any such amendment. All fees are due in full and payable net thirty (30) days from the date of invoice or the commencement of the subscription term, whichever may apply.
4. Eligible Customer. The Inforbix Service is only available to qualified manufacturers and their representatives (“Eligible Customer”). Inforbix reserves the right, in its sole discretion, to determine if you qualify as an Eligible Customer.
5. Software License. Subject to the terms of this Agreement, Inforbix grants you a non-exclusive, non-transferable license to use the Service, including any upgrades and updates to such software made available by Inforbix from time to time (collectively, the “Software”), solely for use in connection with use of the Service and only during the Term (as defined below). Inforbix also grants you a non-exclusive, non-transferable license to use the accompanying Software documentation (“Documentation”), as available, in connection with your use of the Service. You acquire no right, title, or interest to the Service, including the Software or Documentation, except the limited license described in this paragraph. These Licenses are effective until terminated, and will terminate immediately without notice from Inforbix, as stated in the section “Term; Enforcement of Terms; Termination” below.
You understand and agree that Inforbix owns and will retain all right, title and interest, including without limitation all copyright, trademark, trade secret, patent and other proprietary rights, in and to the Service, Software, Documentation, Evaluation Data (as defined below) and Aggregated Meta-Data (as defined below) (collectively, the “Proprietary Materials”). You shall keep confidential and not disclose, sell, lease, transfer, sublicense, dispose of, or otherwise make available the Proprietary Materials or any portion thereof, in source or object code, to any third party other than your employees who need access to the Proprietary Materials in order to use the Service and exercise your license rights granted herein.
6. Permission to Use; Proprietary Rights. The Service is made available to you for your use only. No part of the Service may be copied, printed, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, modified, exchanged, sold, transmitted, or distributed in any way by you, or any third party on your behalf, for any business or commercial purpose. You may not remove any copyright or trademark notices or other proprietary notice language found on or within the Service or otherwise used in connection with the Service. You hereby acknowledge and agree that Inforbix and its licensors own all legal right, title and interest in and to the Service, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Service (whether such rights are registered or unregistered, and wherever in the world those rights may exist), and including without limitation, all trademark, copyright, patent and trade secret rights. Without limiting the foregoing, as between you and Inforbix, all content and other materials associated with the Service, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, “look and feel”, and arrangement of the Service and their content, and the domain names, trademarks, service marks, proprietary logos, and other distinctive brand features associated with the Service (collectively, “Content”), are all owned by Inforbix and its licensors. You may not use the Service, except as expressly set forth in this Agreement. Any unauthorized use of the Service may violate copyright, trademark, trade secret, trade dress, or patent laws, or various other intellectual property rights and unfair competition laws, the laws of privacy and publicity, and civil and criminal statutes. By making them available through the Service, Inforbix is not granting you any license to utilize its or its licensor’s domain names, trademarks, service marks, proprietary logos, and other distinctive brand features found on or associated with, the Service. Any rights not expressly granted by Inforbix in this Agreement are expressly reserved. There are no implied rights.
Without limiting the foregoing, you expressly agree that you will NOT: (i) make any copies of all or any part of the Software or otherwise reproduce the Software except for archival copies as permitted by the United States Copyright Act; (ii) copy or modify all or any part of the Documentation or distribute it to third parties; (iii) use the Software in connection with a service-bureau, time sharing or fee-for-service arrangement with third parties, or otherwise provide the benefit of the Service to any third party; (iv) unless otherwise permitted by applicable local law, decompile, decrypt, disassemble, reverse engineer or otherwise discover the source code for the Software, or attempt to disable or defeat any locking mechanism within the Software; (v) modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or any part of the Software; (vi) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software; or (vii) export the Software or use the Software in any country other than that in which it was obtained.
7. Consent to Access Your Systems. The Service and Software provide indexing of the data stored on your IT systems (the “Customer Systems”). By entering into this Agreement and downloading the Inforbix Software, you agree to provide and allow Inforbix access to your Customer Systems via the Internet for the purposes of providing the Service to you. You represent and warrant that you have the right to grant this access to Inforbix, and you agree to indemnify Inforbix for any and all causes of action or claims arising out of your failure to secure, confirm or accurately represent your right to grant this access, whether intentional or unintentional. You understand and acknowledge that, in order to provide the Service, after you have downloaded the Software, Software agents will scan your Customer Systems for relevant information and will index and transmit this information (“Customer Meta-Data” as defined below) to the Inforbix Cloud Domain, as described more fully in the Section “Customer Meta-Data,” below, and you consent to allow Inforbix to scan your Customer Systems and transmit this information. You are solely responsible for the set-up, maintenance, and security of the Customer Systems, and you acknowledge that frequent, regular software updates for Internet browsers, antivirus, operating systems, and other communication software are essential to the security of the Customer Systems.
8. Software Upgrades. In order to use the Service, any Software updates and upgrades that Inforbix makes available to fulfill the Service must be installed on the Customer Systems. By entering this Agreement and subscribing to the Service, you agree to install any Software updates and upgrades on the Customer Systems. If you fail to install and implement any Software update or upgrade within a reasonable time after release by Inforbix, this Agreement may be terminated without liability to you, and you will no longer have any right to use the Service.
9. Customer Meta-Data. In providing the Service to you, Inforbix will analyze, map and collect meta-data only relating to the data stored on Customer Systems (“Customer Meta-Data”), and the manner in which data is stored and used on the Inforbix Cloud Domain (“Inforbix Cloud”). Inforbix does not analyze, collect, or transmit any original proprietary information held within the files stored on Customer Systems to the Inforbix Cloud, and such information does not constitute Customer Meta-Data for the purposes of this Agreement. You agree that Inforbix may collect and store Customer Meta-Data on the Inforbix Cloud for the purposes of delivering the Service to you. You represent and warrant that, to the extent required, you have obtained all necessary rights and licenses to the data stored on Customer Systems for use as contemplated herein and that Inforbix’s use of the data stored on Customer Systems as set forth herein will not violate any intellectual property rights or privacy rights of any third party. Inforbix may aggregate non-identifiable Customer Meta-Data with non-identifiable anonymous meta-data from other Inforbix customers and third parties to create anonymous aggregated meta-data that does not identify any individual customer or the metrics or information pertaining to any individual customer or its domain (“Aggregated Meta-Data”). Inforbix will own all rights to Aggregated Meta-Data, and has the irrevocable right to maintain, store, use and disclose Aggregated Meta-Data.
10. Your Personal Information. Any personally identifiable information (“personal information”) that Inforbix collects from you, will only be used in accordance with the terms of our Privacy Policy, which can be accessed here.
11. Evaluation Data. Upon request by Inforbix, you agree to provide Inforbix with reasonable information about your use and evaluation of the Service, including, without limitation, any errors, logs, usage statistics or problems and any information reasonably necessary for Inforbix to evaluate such errors or problems, test results and performance data, information relating to the compliance of the Service with documentation, specifications or functionality and comparison with other Software or products (collectively, “Evaluation Data”). Without limiting the foregoing, you irrevocably consent to Inforbix’s collection of Evaluation Data and any other information and data relating to your use of the Service, by various means (including without limitation through the Service), without any further notice to, or consent of, you.
12. Restrictions. You represent and warrant that you will NOT: (a) attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service, or to any Inforbix (or third party) server, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Service; (c) use any device, Software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the Service, or with any other person’s use of the Service; (d) breach any security measures implemented on or in the Service; (e) track or seek to trace any information on any other person who uses the Service, or disclose any information relating to such users; (f) forge headers or otherwise manipulate identifiers in order to disguise your identity, or the origin of any message or other communication that you send to Inforbix in connection with the Service; (g) pretend that you are, or that you represent, someone else, or impersonate any other person; (h) use the Service for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; (i) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary Software used to provide, maintain, or otherwise applicable to, the Service; (j) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party, the Service; or (k) use the Service to send or store content containing Software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You hereby agree that you will promptly notify Inforbix if you become aware that the Service is being used for any illegal or unauthorized purpose.
13. Compliance with Laws. You acknowledge that the Service is subject to United States export laws and regulations and you shall comply with all such laws and regulations in your use of the Software. You may not and agree not to use, export or re-export any portion of the Service made available to you, or any Content or any copy or adaptation of such Content, in violation of any applicable laws, rules or regulations, including but not limited to, United States of America export laws, rules and regulations. By downloading, copying or using the Content, you represent and warrant that such download, copy or use is not in violation of any such laws, rule or regulation.
14. Your Feedback. With respect to all communications you make to Inforbix, including but not limited to feedback, questions, comments, suggestions and the like: (i) you shall have no right to confidentiality in your communications and Inforbix shall have no obligation to protect your communications from disclosure; (ii) Inforbix shall be free to reproduce, use, disclose and distribute your communications to others without limitation; and (iii) Inforbix shall be free to use any ideas, concepts, know-how, content or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information.
15. Term; Enforcement of Terms; Termination. This Agreement takes effect when you first subscribe for the Service or otherwise begin using the Service, and continues until terminated as set forth in this Agreement (the “Term”). Inforbix may suspend or terminate your access to the Service, cancel your account, or block your future access to the Service, without notice, if you fail to comply with any of the Terms of this Agreement; in such event, you must cease using the Service and your license to use the Service is terminated. In addition, we may notify the relevant law enforcement authorities or other third parties, of any illegal or prohibited conduct by you. You may also stop using the Service at any time, or otherwise terminate your account, at which point your license to use the Service expires. If as of termination, Inforbix has collected a fee from you for the Service, you will not receive a refund of that portion of the fees paid attributable to the terminated Service. Upon termination, you understand and agree that you will be unable to access your User Content or the Service. The obligations under this Agreement that, by their nature, are intended to survive the termination of your use of the Service, shall continue to apply after such termination. Upon termination you must destroy and uninstall the Software and all copies thereof. If you fail to fulfill any of your material obligations under this Agreement, Inforbix and/or its licensors may pursue all available legal remedies to enforce this Agreement, and Inforbix may, at any time after your default of this Agreement, terminate this Agreement and all licenses and rights granted to you hereunder. You agree that Inforbix’s licensors are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property.
If you subscribe to a no-charge price plan we reserve the right to limit the term of your license, and to terminate your license and suspend your use of the Service if you subscribe to the service but do not install the required Software and begin to use the Service within five days of subscribing for the Service, or after five weeks of inactivity (i.e., a period of five weeks during which you do not use the Service).
Information on price and terms for the Service are available here.
Interruption or Discontinuation of Service. You agree that Inforbix may, upon reasonable notice to you, modify, interrupt, suspend or discontinue the operation of, or access to, the Service, or any portion of such.
16. U. S. Government Users. Pursuant to the policy stated at 48 CFR 227.7202-1, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by Inforbix for licenses granted to the public for the use of the Software, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the Government, except to the extent which such licenses are inconsistent with federal procurement law. Contractor/manufacturer is Inforbix, LLC of 908 W. Roxbury Pkwy, Chestnut Hill, MA 02467, USA.
17. Support for Services. Inforbix will provide you with reasonable assistance with installation of the Software through its email help address at support@Inforbix.com. At the discretion of Inforbix, the Service may include implementation, helpdesk, support or maintenance service with respect to the Software, or to any bug fixes, error corrections, updates, upgrades or new versions of the Software.
18. Limited Warranty. Inforbix warrants that, during the period that you have paid applicable fees, remain in compliance with this Agreement and your access to the Service has not been terminated, the Service will operate in substantial conformance with the functionality current at the time you commence using the Services. Inforbix’s sole responsibility and your sole remedy for any material failure of the Service to conform to this warranty shall be Inforbix’s commercially reasonable efforts to remedy any error in the Service so as to conform to the warranty, within a reasonable time after you notify Inforbix of the error, or, in the event that Inforbix is unable to remedy any material error, Inforbix shall refund to you the fees paid by you, if any, with respect to the period during which the Service failed to operate in material accordance with the limited warranty. Neither Inforbix nor its licensors make any warranties with respect to third party software included in the Service. Notwithstanding the above, you understand and agree that the Service or Software may not accurately locate, identify, index or transmit all relevant Customer Meta-Data on your Computer Systems, and that Inforbix makes no representations or warranties as to the length of time it will take the Software to locate, identify, index or transmit Customer Meta-Data in order to provide the Service.
19. WARRANTY DISCLAIMER. YOUR USE OF THE SERVICE IS AT YOUR OWN DISCRETION AND RISK. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE SERVICE IS FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, AND ARE SUBJECT TO CHANGE WITHOUT NOTICE. INFORBIX, AND ITS AFFILIATES, SUBSIDIARIES, MEMBERS, MANAGERS, LICENSORS AND THIRD PARTY SERVICES PROVIDERS, AND THEIR RESPECTIVE MEMBERS, MANAGERS, STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “INFORBIX PARTIES”): (A) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DO NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THEY WILL BE UPDATED, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, WILL MEET ANY MINIMUM SERVICES LEVEL OR STANDARD OF OPERATION, OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OF SERVICE, OR THE RESULTS OF THE USE OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE FOR: (I) THE LOSS OF ANY OR ALL OF YOUR CONTENT OR PERFORMANCE RESULTS; OR (II) ANY HARM, DAMAGES OR LOSSES YOU SUFFER AS A RESULT OF YOUR RELIANCE ON, OR OTHER USE OF, THE SERVICE OR ANY CONTENT THAT YOU ACCESS THROUGH THE SERVICE. YOUR SOLE REMEDY AGAINST THE INFORBIX PARTIES FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THEM.
Some jurisdictions may not allow the exclusion and/or limitation of implied warranties or conditions, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. In such event, Inforbix’s warranties and conditions with respect to the Service will be limited to the greatest extent permitted by applicable law in such jurisdiction.
21. Release. To the greatest extent permitted by applicable law, you hereby release the Inforbix Parties from and against any and all demands, claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses of any kind that arise from, out of, in connection with, or incident to, whether directly or indirectly, your use of the Service.
22. Indemnification. You hereby agree to indemnify, defend and hold harmless each of the Inforbix Parties from and against any and all liability and costs (including, without limitation, settlement costs, attorneys’ fees and any legal or other fees and expenses incurred in investigating or defending any actions or threatened actions) incurred in connection with any actual or alleged claim arising from or relating to your use or misuse of the Service, your breach or alleged breach of this Agreement, or the submission or use of your User Content or Feedback.
23. Governing Law; Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, excluding its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. You and Inforbix agree that the federal and state courts located in Suffolk County, Massachusetts, shall have exclusive jurisdiction over any disputes arising in connection with the Service or this Agreement, and each party hereby submits to jurisdiction and venue of such courts.
24. Assignment. Inforbix may assign or transfer its rights, or delegate its performance, under this Agreement to one or more third parties in its sole discretion. You may not assign your rights or obligations under this Agreement or any right or license hereunder without the prior written consent of Inforbix.
25. Limited Time to Bring Claim. To the greatest extent permitted by applicable law, any cause of action arising under this Agreement must be commenced by you within one (1) year after the claim or cause of action arises.
26. JURY TRIAL WAIVER. TO THE EXTENT NOT OTHERWISE PROHIBITED BY APPLICABLE LAW, THE PARTIES HERETO WAIVE TRIAL BY JURY WITH RESPECT TO ANY MATTERS ARISING UNDER OR RELATING TO THIS AGREEMENT.
27. Entire Agreement, Notice, Waiver, and Severability. This Agreement constitutes the entire agreement between you and Inforbix relating to your use the Services or the subject matter of this Agreement. The failure of Inforbix to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. Should any part of the Agreement be declared invalid or unenforceable by a court of competent jurisdiction, this shall not affect the validity of any remaining portion and such remaining portion shall remain in full force and effect as if the invalid portion of the Agreement had been eliminated.
28. Contact Us. You may contact us at:
Website Administrator
Inforbix LLC
908 W. Roxbury Pkwy
Chestnut Hill, MA 02467
admin@INFORBIX.com
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