InData Software and Software Support Customer Agreement
This InData Customer Agreement (the “Agreement”) is between you (“You”) and InData, a California corporation (“InData”). If You are agreeing to this Agreement not as an individual but on behalf of Your company, then “You” means Your company, and You are binding Your company to this Agreement. This Agreement governs Your use of InData’s Software and related services, and describes Your and InData’s obligations and limitations. This Agreement may be amended by InData from time to time as set forth under Updates to this Agreement below.
This Agreement may be presented as part of an on-line transaction, prior to downloading software, as part of the installation of Software or referred to in an InData order form. BY SELECTING THE “ACCEPT” BUTTON AT THE BOTTOM OF THIS AGREEMENT, OR DOWNLOADING, INSTALLING, OR USING ANY VERSION OF THE SOFTWARE, YOU AGREE TO COMPLY AND BE BOUND BY THE TERMS OF THIS AGREEMENT. The date on which You take any of these actions is referred to as the Effective Date.
This Agreement covers InData Smart Services, InData Employee Productivity and Inventory Control Systems (EPICs), and InData Reader (the “Software”), regardless of “Edition” designation (Team, Enterprise, etc.) and regardless of version number designation. This Agreement applies to the Software when provided for use on Your computers as well as the Software when provided through InData’s hosted or cloud based solutions (“Hosted Services”). Certain terms and conditions apply only in the case of Hosted Services. This Agreement also covers product documentation created by InData and provided to You with the Software that formally describes the use, function or technical details of the Software (the “Documentation”).
License Grant. Subject to the terms of this Agreement, upon and subject to Your advance payment in full of any applicable fees, InData hereby grants You a limited, non-exclusive, non-transferable, license to install and use the Software and Documentation in the quantities set forth in the applicable order and for the time period set forth in the applicable order (“License Term”). You may: (a) install and use the Software on computers that You own, lease or control and; (b) use the Documentation provided with the Software solely in connection with the use of the Software; and (c) make one copy of the Software and the related Documentation solely for backup purposes. The backup copy must retain all copyright notices.
Limitations. You are only granted a license for the machine-readable, object code portion of the Software and not to the source code of the Software. You will not modify, enhance, reverse engineer or alter the Software. You will not sell, lease, assign, publish, bargain, convey or otherwise transfer or grant any rights to the Software. You will not make derivative works of the Software. You will not use the Software except as set forth in the Documentation and will not use the Software in combination with any other software not explicitly provided for in the Documentation. You will not attempt to circumvent or disable any license key features of the software, nor modify or remove any copyright notice or other proprietary rights notices that may appear on any part of the Software or Documentation.
Hosting Services. InData may make available its hardware and systems available to customers to host a licensed copy of the Software known as InData Smart Services, InData Employee Productivity and Inventory Control Systems (EPICs), and InData Reader (the “Software”) (“Hosting Services”). If you elect to use Hosting Services, then the terms in this Agreement that are applicable to Hosting Services will apply. Subject to Your advance payment of any applicable fees and the terms and conditions of this Agreement, InData hereby grants You a non-exclusive right to access and use the Hosted Services during the applicable subscription term identified in an order (“Subscription Term”) and in accordance with this Agreement and the Documentation. InData will provide You with use of Hosting Services solely for the purpose of hosting the InData Smart Services, InData Employee Productivity and Inventory Control Systems (EPICs), and InData Reader (the “Software”). Hosting Services are provided on a private server with shared network infrastructure, using SSL protocols. Instances and data are backed up for recovery purposes every two weeks or otherwise in accordance with InData’s policy.
Hosting Service Levels. InData will use commercially reasonable efforts to make the Hosting Services available in accordance with prevailing hosting industry standards and the Documentation, taking into account Your computers, the speed of Your connection to InData hardware and other variables outside of InData’s control. If the Hosting Services fail to substantially conform to the Documentation over a continuous period of thirty (30) days after written notice to InData of such failure, You may terminate Hosting Services. Provided that the failure is not caused by or substantially contributed to by Your use of the Hosting Services in a manner inconsistent with the Agreement or by other factors outside InData’s control, and You terminate the Hosting Services, InData shall provide a pro-rated refund for any prepaid, remaining Subscription during a calendar year. This section sets forth InData’s sole obligation and Your sole remedy, for any failures of the Hosting Services.
Additional Limitations on Use. You may not use the Software or Hosting Services in any situation where failure or fault of the Software or Hosting Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, You may not use, or permit any other person to use, the Hosting Services in connection with aircraft or other modes of human mass transportation, operation of nuclear or chemical facilities, or Class III medical devices as defined under the US Federal Food, Drug and Cosmetic Act.
Term and Termination. This Agreement shall be in force upon the Effective Date and continue through the License Term or Subscription Term specified on Your order, unless terminated under the terms of this Agreement. Upon the earlier of termination of this Agreement or the end of Your License Term, You will cease use of the Software, uninstall any copies of the Software on Your computers and destroy all copies of the Software and Documentation in Your possession. Your License Term and Subscription Term will end upon termination of this Agreement, regardless of any expiration date set forth in an order or the absence thereof.
Support. Subject to payment in full of the applicable license or support fees, InData makes available support regarding installation, operation, and use of the Software between 9:00AM and 5:00PM PT, Monday through Friday, excluding U.S. national bank holidays by: (a) email to [email protected] , (b) telephone at (877) 930-3276 (“Support”). For InData Trials, support is provided only over the web at www.indata.farm/support.
New Versions. InData may, from time to time, make new versions of the Software commercially available to its customers. Within a reasonable period after such availability, InData will make such versions available to You for no additional fees if: (i) this Agreement is still in effect, and (ii) the License Term or Subscription Term with respect to the particular Software module or product is still in effect. This Section does not apply to software that is separately priced and marketed by InData.
Warranty. InData warrants to You that the Software will perform without any Critical Errors (as defined below) for 30 days from Your acceptance of this Agreement. “Critical Error” means an error that causes Your complete inability to use the Software. Your sole and exclusive remedy and InData’s entire liability with respect to a breach of the warranty provided in this Section is as follows: (i) InData will provide a patch for the Critical Error; or (ii) if InData is unable to provide a patch for a Critical Error within 30 days of being reported by You, then InData will refund the license fees paid by You for the Software affected by the Critical Error and this Agreement will be terminated. No refund will be issued until InData receives a certification from You that all copies of the Software and Documentation have been destroyed. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN THIS SECTION, INDATA MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE, HOSTING SERVICES, DOCUMENTATION, OR OTHERWISE AND EXPRESSLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUIET POSSESSION, CORRESPONDENCE WITH DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT AS WELL AS ANY WARRANITES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. INDATA DOES NOT WARRANT THAT THE SOFTWARE, DOCUMENTATION, OR HOSTING SERVICES WILL SATISFY YOUR REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SOFTWARE OR HOSTING SERVICES WILL BE UNINTERRUPTED. INDATA EXERCISES NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY FOR THE CONTENT OF THE INFORMATION PASSING THROUGH THE HOSTING SERVICES. INDATA SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH THE HOSTING SERVICES. USE OF ANY INFORMATION OBTAINED VIA THE HOSTING SERVICES IS AT YOUR OWN RISK. IF THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW OF YOUR JURISDICTION, THE DURATION OF ANY IMPLIED WARRANTIES IS LIMITED TO 90 DAYS FROM THE DATE OF DELIVERY. INDATA EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON APPLICATIONS THAT ARE SIMULATED OR DEVELOPED USING THE SOFTWARE.
LIABILITY. UNDER NO CIRCUMSTANCES WILL INDATA BE LIABLE TO YOU FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT, OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THE SOFTWARE, DOCUMENTATION, HOSTING SERVICE OR YOUR USE OF THE SOFTWARE, DOCUMENTATION, OR HOSTING SERVICES INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, DISCLOSURE OF ANY PERSONALLY IDENTIFYING INFORMATION, COSTS OF RECREATING LOST DATA, LOSS OF USE OF THE SOFTWARE OR HOSTING SERVICES, LOSSES ASSOCIATED WITH BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR LOSS OF BUSINESS, EVEN IF INDATA HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING AND NOTWITHSTANDINGTHE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY UNLESS PROHIBITED BY APPLICABLE LAW IN YOUR JURISDICTION. UNDER NO CIRCUMSTANCES WILL INDATA’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THE SOFTWARE, DOCUMENTATION, OR HOSTING SERVICES OR YOUR USE OF THE SOFTWARE, DOCUMENTATION, OR HOSTING SERVICES, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO INDATA IN THE 12 MONTHS PRECEDING THE DATE OF THE APPLICABLE CLAIM. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. INDATA’S PRICING REFLECTS THE ALLOCATION OF RISK AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT.
Indemnification. We will defend You from and indemnify You for reasonable costs incurred, damages finally awarded by a court of competent jurisdiction, or any settlement amount agreed to in writing by InData arising from a claim brought against You by a third party alleging that the Software when used as authorized by this Agreement and in accordance with the Documentation infringes a United States patent or copyright (each, a “Claim”). Our obligation to defend and indemnify You is subject to You providing: (a) prompt written notice of such a Claim, and (b) reasonable assistance in the defense and investigation of the Claim. InData shall maintain the exclusive right to defend the Claim and any settlement shall be at our exclusive option. If Customer’s use of the Software is, or in InData’s opinion is likely to become enjoined or materially diminished as a result of a proceeding arising under this Section, then at InData’s exclusive option InData may either: (x) procure a license for Your continued use of the Software, (y) replace or modify the Software so that it no longer infringes, or (z) terminate the Agreement and provide You with a refund of any Software fees paid by You. InData indemnity obligations do not apply to any claims to the extent they arise out of or are based upon: (i) use of the Software outside the scope of this Agreement or that is not in accordance with the Documentation, (ii) Your failure to implement the latest version of the Software or comply with InData instructions, (iii) modifications to the Software not made by InData, (iv) combination, operation, or use of the Software in conjunction with a service, hardware, or software not provided or authorized by InData for use with the Software, in each case if the alleged infringement would not have occurred but for the applicable failure. This states our sole liability and Your exclusive remedy for infringement of intellectual property rights.
Governing Law; Arbitration. You must use the Software and Documentation in compliance with all applicable laws, including all export control laws. This Agreement will be construed, interpreted and governed by the laws of the State of California, without regard to conflicts of law provisions thereof, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. In the event of any dispute between the parties relating to this Agreement the dispute must be finally settled by binding arbitration in Los Angeles, California, under the Rules of Arbitration of the International Chamber of Commerce ICC rules. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. InData may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration provision.
No Assignment. You may not assign or otherwise transfer in any way (including by merger, sale of assets, operation of law, or otherwise) any of the rights and obligations arising out of this Agreement without the prior written consent of InData.
Entire Agreement. This Agreement constitutes the entire agreement between You and InData with respect to the subject matter of this Agreement and merges all prior and contemporaneous communications. This Agreement may only be modified by a written agreement signed by both You and InData.
Client Usage Data. InData may contract with a third party, from time to time, to gather the Software usage data of our clients (“Client Usage Data”). Further details related to the information gathered and its use may be found at: https://indata.farm/privacy-policy/ and https://indata.farm/eula/. As of the date of this Customer Agreement our analytics data is being collected by:
Updates to this Agreement. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision materially reduces Your rights, we will use reasonable efforts to notify You. If we modify the Agreement during Your License Term the modified version will be effective upon Your next renewal, unless You choose not to renew. You agree that Your only remedy in the event You do not agree to any changes to the Agreement is to not renew.
Confidential Information. Commencing on the Effective Date and continuing for a period of three (3) years from the termination of this Agreement, each party shall protect as confidential, and shall not disclose to any third party without the disclosing party’s written consent, any Confidential Information received from the disclosing party or otherwise discovered by the receiving party during the term of this Agreement, any information relating to the disclosing party’s technology, business affairs, marketing or sales plans, and any non-public information regarding the performance of the Hosting Services (collectively the “Confidential Information”). The parties shall use Confidential Information only for the purpose of this Agreement and shall only disclose Confidential Information to affiliates, employees, subcontractors or advisors under a similar obligation of confidentiality. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (i) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (ii) is, or becomes publicly known, through no wrongful act or omission of the receiving party; (iii) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (iv) is developed independently by the receiving party without reference to the Confidential Information, or (v) is required to be disclosed by law, regulation, or court or governmental order, however, the party subject to such law, regulation or court or governmental order shall use reasonable efforts to minimize such disclosure and shall notify the other party contemporaneously of such disclosure.
Data Ownership. All data created or transmitted by You and stored on InData’s servers as part of the Hosting Services (“Data”) shall at all times be owned by You and treated as Confidential Information under this Agreement. Upon termination or cancellation of this Agreement for any reason, InData shall return all Data to You. As a convenience to You, Your Data will be backed-up, but InData shall in no event be liable to You or any third party for loss, destruction or corruption of Data.
Personally Identifiable Information. You represent and warrant that Your Data will not contain: (i) a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health or other data or attribute, such as a combination of the individual’s name, address, or phone number with the individual’s social security number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, § 6809(4), and (iii) “protected health information” as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103.
Security. InData implements technical defenses and security procedures designed to protect Data from unauthorized access. These procedures are described in our Cloud Framework and Security Overview. However, You acknowledge that use of the Hosted Services necessarily involves transmission of Data over networks that are not owned, operated or controlled by InData, and InData is not responsible for any of Your Data that is lost, altered, intercepted or stored across such networks. InData also cannot guarantee that our security procedures will be error-free, that transmissions of Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers. All access to the Hosting Services is controlled by user names and passwords. Each user name and password will be unique to each user that You designate with access to the Hosting Services. You are solely responsible for the security of the user names and passwords that You issue. Any access to the Hosting Services using such user names and passwords will be deemed access by You, except where access is the result of unauthorized disclosure of user names and passwords by the negligent or willful act of InData.
Force Majeure. InData shall not be deemed to be in default of any provision of this Agreement or be liable for any delay or failure in performance due to Force Majeure, which shall include without limitation acts of God, earthquake, weather conditions, labor disputes, changes in law, regulation or government policy, riots, war, fire, epidemics, acts or omissions of vendors or suppliers, equipment failures, transportation difficulties, malicious or criminal acts of third parties, or other occurrences which are beyond InData’s reasonable control.
Copyright and Trademarks. The following copyright and trademarks apply to InData™,
Copyright © 2004 – 2019 InData. All rights reserved.
EULA Rev. 0010082019