Terms of Service
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCEPTING THIS AGREEMENT, RECIPIENT AGREES TO THESE TERMS OF SERVICE.
These Terms of Service constitute an agreement (this “Agreement”) by and between Thingee Corporation (“Provider”), and (“Recipient”), a customer of Provider’s iDetail™ Service.
1. Definitions.
1a. “Account” refers to the Service plans and features selected by Recipient through Provider’s customer portal at the time of enrollment and accepted by Provider, as such plans and features may change by mutual consent of the parties, as recorded by Provider through such portal.
1b. “Authorized Representative” refers to the individuals listed in the attached Appendix A.
1c. “Content” refers to written and graphical content provided through the Service by the Recipient, including, without limitation, text, photographs, illustrations, and designs.
1d. “Effective Date” refers to the date of commencement of the Service as listed on Recipient’s iDetail Purchase Agreement.
1e. “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.
1f. “Recipient Data” refers to information in electronic form generated through the service by or from Recipient, including but not limited to account information, device information, metrics, and analytics.
1g. “Service” refers to Provider’s iDetail software player, web-hosted content portal, and support and reporting services. The Service includes, but is not limited to, such features as are set forth in Sections 2 through 4 below.
1h. “Software” refers to all software that is part of Provider’s iDetail product suite.
1i. “User Guides” refers to any iDetail product documentation.
2. Description of Service.
The Service consists of Provider’s web-hosted content portal that allows for the cloud-based storage, transfer, and management of Recipient Data and Content; and a set of support and reporting Services including, but not limited to, software upgrades and maintenance, incident and technical support, and presentation data analytics and report generation.
The Provider’s iDetail Player App Software is used in conjunction with the Service, and authorizes the Recipient and its designated users to access and download approved Content from the cloud-based Service. Users may store multiple presentations locally on the iPad for ad hoc presentations from the iPad, or presentations can be projected with the use of additional software. The iDetail Player App Software also collects usage metrics and Recipient Data.
3. Scope of Services.
The following services are included by this service level agreement:
3a. The iDetail Player App for the iPad®. The iDetail Player App authorizes Recipient and its users to access and download approved content from the cloud-based Service. Users may store multiple presentations locally on the iPad for ad hoc presentations from the device, or presentations can be projected with the use of additional software. The iDetail Player App also collects usage metrics.
3b. The iDetail Content Portal. The iDetail Content Portal is a web-hosted service for storing iDetail presentation content. Content is distributed through over-the-air installations and updates. The Content Portal allows for content upload, and user permissions are selectable by user account, limiting access if necessary. All data transmissions between the iDetail Player App and Content Portal are SSL encrypted.
3c. Software Support, Updates and Maintenance. As an annual subscriber, Recipient’s license fee entitles Recipient to upgrades to the latest version of the iDetail Player App and cloud-based services. For the length of the term of this agreement
4. Service Availability.
4a. Service Availability. The Service will have an available uptime of at least 99.5% per month.
4b. Scope of Service Availability. Uptime availability is for Recipient’s iDetail app and includes Recipient’s ability to access and administrate Recipient membership accounts; authorize users for accounts; update Recipient Content assets; download iDetail apps for use testing, update testing, and submission to IT for approval; receive notifications of updates for download.
4c Service Availability Monitoring. System availability is monitored through an independent third-party company.
4d. Service Availability Reporting and Metrics. Provider will provide Recipient a quarterly report via email detailing uptime availability. The report will be delivered within 10 days of the beginning of the quarter following the quarter being reported.
4e. Service Storage Limit. Storage allotted for Recipient account and Content assets is 10 GB to exceed this limit, an upgrade to the enterprise tier is required.
4f. Service Outage Detection and Notification. Due to the nature of mobile networks, minor periods of unavailability in the Service are to be expected. In the event of Service outages greater that 15 minutes, Provider will notify Recipient via text and email that an outage has occurred. When an outage occurs, the iDetail Player App functions in an offline mode and caches all newly generated Recipient Data and previously downloaded Recipient Content. Caching continues until the device reconnects to the Service. Recipient may also notify Provider’s Key Personnel listed in the Authorized Representatives list (Appendix A) via text or email if delays in the Service of greater than 15 minutes are detected.
4g. Service Restoration After an Outage. Time to restore the Service will vary depending on the severity of the outage. In the event of an outage greater than 15 minutes, the Service will be restored as quickly as possible once the outage has been declared and the restoration process has been initiated. Provider will notify Recipient when Service is restored.
4h. Routine Service Maintenance. Provider will notify Recipient via email 5 business days prior to scheduled maintenance of the Service when availability may be impacted. Provider will notify Recipient when Service is restored.
4i. Emergency Service Maintenance. Provider will notify Recipient via text and email within one (1) hour if emergency maintenance of the Service is required and will affect availability. Provider will notify Recipient when Service is restored.
5. Data Management.
5a. Data Backup. Recipient Data and Content is backed up nightly. Backup files are transferred electronically to be stored at an offsite location each night.
5b. Data Recovery. In the event of an outage, where Recipient Data and Content is lost and needs to be restored, the loss in changed data will be less than 24 hours from the point of failure. The recovery time for Recipient Data and Content restoration will be six (6) business hours from the point of completion of Service restoration. While the Service is down, the iDetail Player App will function in an offline mode with all newly generated Recipient Data and previously downloaded Recipient Content being cached locally to the device. This caching continues until such time that the device is reconnected to the Service.
5c. Technical & Physical Security. In its handling of Recipient Data and Content, Provider will observe the procedures described in Subsections 5d through 5g.
5d. Encryption. All data, including but not limited to Recipient Data and Content, transferred between Recipient devices and web-based services, including upload and download of Recipient Content to the Content Management Service, are SSL encrypted endpoints using the HTTPS protocol. Passwords are stored encrypted on the server and at no time is a password stored on the Software.
5e. Individuals’ Access. Provider will not allow any of its employees to access Recipient Content, except to the extent that an employee needs access in order to facilitate the Services and executes a written agreement with Provider agreeing to comply with Provider’s obligations set forth in this Section 5.
5f. Leaks. Provider will promptly notify Recipient of any actual or potential exposure or misappropriation of Recipient Content (any “Leak”) that comes to Provider’s attention. Provider will cooperate with Recipient and with law enforcement authorities in investigating any such Leak, at Provider’s expense. Provider will likewise cooperate with Recipient and with law enforcement agencies in any effort to notify injured or potentially injured parties, and such cooperation will be at Provider’s expense, except to the extent that the Leak was caused by Recipient. The remedies and obligations set forth in this Subsection 5f are in addition to any others Recipient may have.
5g. Compliance with Law & Policy. Provider will comply with all applicable federal and state laws and regulations governing the handling of Recipient Content.
5h. Retention & Deletion. Provider will retain any Recipient Data and Content in its possession until Erased (as defined below). Provider will Erase: (i) all copies of iDetail-related Recipient Data and Content, including, but not limited to, presentations, assets, use metrics, and user account information after collection thereof; (ii) any or all copies of Recipient Data and Content promptly after Recipient’s written request; and (iii) all copies of Recipient Data and Content no sooner than thirty (30) business days after termination of this Agreement and no later than ninety (90) business days after such termination. Notwithstanding the foregoing, Recipient may at any time instruct Provider to retain and not to Erase or otherwise delete Recipient Data and Content, provided Recipient may not require retention of Recipient Data and Content for more than thirty (30) business days after termination of this Agreement. Promptly after Erasure pursuant to this Subsection, Provider will certify such Erasure in writing to Recipient. (“Erase” and “Erasure” refer to the destruction of Recipient Data and Content so that no copy of the Recipient Data and Content remains or can be accessed or restored in any way.)
5i. Recipient’s Rights. Except for material that Provider licenses to Recipient, Provider does not claim ownership of any Content that is transmitted, stored, or processed in Recipient’s account(s). Provider’s use and possession of Recipient Content is solely as Recipient’s agent. Provider also does not control, verify, or endorse the Content that Recipient and others make available on the Service.
5j. Access, Use, & Legal Compulsion. Recipient hereby grants Provider and its contractors the right to access, use, modify, adapt, reproduce, distribute, display and disclose Recipient Content posted on the Service solely to the extent necessary to facilitate the Service or as otherwise permitted by these Terms. Unless it receives Recipient’s prior written consent, Provider will not give any third party access to Recipient Data and Content. Notwithstanding the foregoing, Provider may disclose Recipient Data and Content as required by applicable law or by proper legal or governmental authority. Provider will give Recipient prompt notice of any such legal or governmental demand and reasonably cooperate with Recipient in any effort to seek a protective order or otherwise to contest such required disclosure, at Recipient’s expense. Provider provides functions that allow Recipient to control who may access Recipient’s Content. If Recipient enables the features that allow Recipient to share the Content with others, anyone Recipient has shared content with may have access to Recipient’s Content.
5k. Confidentiality. During the course of this Agreement, each party (the “Receiving Party”) may be given access to Confidential Information of the other party and its Affiliates (the “Disclosing Party”) Each Receiving Party will hold in confidence and, without the consent of the other party, will not use, reproduce, distribute, transmit, or disclose, directly or indirectly, the Confidential Information of the Disclosing Party except as expressly permitted hereunder. The Receiving Party may only disclose the Confidential Information of the Disclosing Party to its employees and third party consultants with a need to know the information in connection with the performance of this Agreement, provided that any such third party consultants must first agree in writing with the Receiving Party to protect Confidential Information in a manner consistent with this Agreement and the Receiving Party shall be responsible to the Disclosing Party for any damages for unauthorized use, disclosure, duplication or other misuse of the Confidential Information by its third party consultants. Without limiting the foregoing, the Receiving Party agrees that it will exercise at least the same standard of care in protecting the confidentiality of the Disclosing Party’s Confidential Information as it does with its own Confidential Information of a similar nature, but no less than a reasonable degree of care.
6. Updates and Upgrades.
6a. Upgrades to the Service. During the term of this Agreement, Provider will, from time to time, in cooperation with Recipient, make updates and upgrades to the Service, which may add or delete features (collectively, “Upgrades”), in order to improve the delivery of the Service. Provider will implement the Upgrades in a way that will minimize the impact of any interruptions or delays that may be caused while the Upgrades to the Service are in progress.
6b. Communications of Service Changes. Provider will notify Recipient ten (10) business days in advance when scheduled Upgrades are to occur.
6c. Temporary Suspension of the Service. If at any time continued provision of the Service would compromise the security of the Service due, without limitation, to hacking attempts, denial of service attacks, mail bombs or other malicious activities, Recipient agrees Provider may temporarily suspend the Service.
7. User Accounts and Responsibilities.
7a. Obtaining an Account. To obtain access to certain Services, Recipient may be required to obtain an account with Provider (become a "Registered User"), by completing a registration process and designating a user ID and password. When registering with Provider Recipient must: (a) provide true, accurate, current and complete information about itself as requested by the Service's registration process (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
7b. Responsibility for Account. Only Recipient or its employees may use its Provider account. Recipient must keep its account and passwords confidential. Recipient must contact Provider immediately if Recipient suspects misuse of Recipient’s account or any security breach in the Service. Provider will not be liable for any loss or damage arising from any unauthorized use of Recipient’s accounts.
8. Content, Software, & Intellectual Property.
8a. Materials. Recipient recognizes and agrees that: (i) the Materials are the property of Provider or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (ii) Recipient does not acquire any right, title, or interest in or to the Materials except the limited license granted to Recipient pursuant to this Agreement.
8b. IP in General. Provider retains all right, title, and interest in and to the Service, including without limitation: all software used to provide the Service; all logos and trademarks reproduced through the Service; and all design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement. This Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components.
8c. Recipient Content Rights. Recipient represents and warrants that: (a) Recipient has all the rights in the Content necessary for Recipient to use the Service and to grant the rights in this Section; and, (b) the storage, use or transmission of the Content does not violate any law or these Terms. Recipient retains all right, title, and interest in and to the Recipient Data and the Content; and Provider does not acquire any right, title or interest in or to the Recipient Data or the Content, except as necessary for Provider to provide the Services to Recipient pursuant to this Agreement.
8d. Recipient Content Permissions. Recipient will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; and (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to Recipient by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices.
8e. Provider Software. Provider hereby grants to Recipient, and Recipient hereby accepts, subject to the terms of this Agreement, a non-exclusive and nontransferable license to display, present and use the Software and the Materials with the Content as permitted by this Agreement. Recipient’s use of the Software is governed by the terms set forth in this Agreement. Provider reserves all other rights to the Software. Any Software is licensed, not sold. Unless Provider notifies Recipient otherwise, the Software license ends when Recipient’s Service ends. Recipient must then promptly uninstall the Software, or Provider may disable it. Recipient must not work around any technical limitations in the Software.
8f. Transferability. Recipient may install the Software on more than one iPad, and may reassign seats among its users. Recipient may reassign seats between iPads so long as the Software is no longer being used on the original iPad and the new iPad uses the Software licensed to Recipient hereunder.
8g. Compliance with Software Export Laws. The Software is subject to applicable U.S. export laws and regulations. Recipient must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, Recipient may not transfer the Software or Service without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department's compliance list at http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). Recipient represents and warrants that Recipient is not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
9. Payment of Fees.
Fees for the Service are due as part of the iDetail SOW or Purchase Agreement, and Recipient agrees to pay according to the schedule outlined in that Agreement.
10. Disclaimer of Warranties.
Except for the recovery procedures specified in Section 4 (Service Availability), Section 5 (Data Management) and Section 7 (User Accounts and Responsibilities), THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY THAT THE SERVICE WILL BE TIMELY, UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, THAT THE MATERIALS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Indemnification.
To the extent permitted by law, Recipient will defend Provider, its parents, its affiliates and their respective officers, directors, employees, attorneys, representatives, licensors, third-party providers and agents against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by Recipient, or Recipient’s use of the Service, in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Provider's actions); or, (b) violates applicable law or these Terms. Provider will reasonably notify Recipient of any such claim or demand that is subject to Recipient’s indemnification obligation.
12. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PROVIDER, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF PROVIDER HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF PROVIDER AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO AN AMOUNT EQUIVALENT TO ONE MONTH OF RECIPIENT’S LICENSE FEES. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE RECIPIENT FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO RECIPIENT TO THE EXTENT PROHIBITED BY LAW.
13. Term & Termination.
13a. Term. This Agreement will continue for one year following the Effective Date (a “Term”) or pursuant to the applicable Purchase Agreement or SOW, which ever is sooner. Thereafter, both parties will renegotiate this Agreement for subsequent terms (“Terms”).
13b. Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other party first cures such breach.
13c. Termination for Convenience. Recipient may terminate this Agreement for convenience upon 60 days’ advance written notice. On the date of such termination, Recipient may continue to use Services paid for up to the end of the contracted period.
13d. Effects of Termination. Upon termination of this Agreement, the licenses granted in Subsection 8e (Provider Software) will terminate, Recipient will cease all use of the Software and delete all copies in its possession or control, and each party will promptly return any property of the other’s. The following provisions will survive termination of this Agreement: (i) any obligation of Recipient to pay for Service rendered before termination; (ii) Sections 5c, (Data Security), 8 (Content, Software, & Intellectual Property) 10 (Disclaimer of Warranties), 11 (Indemnification), and 12 (Limitation of Liability) of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
14. Miscellaneous.
14a. Notices. Provider may send notices pursuant to this Agreement to Recipient’s contact points listed in Recipient’s Account, and such notices will be deemed received 7 business days after they are sent. Recipient may send notices pursuant to this Agreement to Key Personnel and such notices will be deemed received 7 business after they are sent.
14b. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
14c. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
14d. Force Majeure. Neither party will be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers and other third parties; explosions and fires; embargoes, strikes and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a party.
14e. Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties
14f. Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of New Jersey, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of New Jersey.
14g. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
14h. Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of the Appendices and Attachments, the terms of this main body will govern. In the event of any conflict between this Agreement and any Provider policy posted online, the terms of this Agreement will govern.
14i. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
14j. Content Stored in the United States. The Service is provided from the United States. By using and accessing the Service, Recipient understands and consents to the storage and processing of the Content and any other personal information in the United States. Provider reserves the right to store and process personal information outside of the United States, and will use commercially reasonable efforts to provide Recipient with at least 30 days notice of any such changes in the processing location.
14k. Compliance with Laws. Recipient and all users agree to comply with all applicable local, state, national and foreign laws, rules and regulations in connection with their access and/or use of the Services under this Agreement. Recipient shall comply with all legal duties applicable to Recipient as a data controller by virtue of Recipient submitting uploaded Recipient Data and Content to or storing uploaded Recipient Data and Content within the Service. Specifically, Recipient shall provide the relevant persons and/or participants with all information or notices Recipient is required by applicable privacy and data protection law to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required by such laws.
14l. Export Restrictions. By using the Service outside of the U.S., Recipient agrees that it is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of the U.S. and other countries.
14m. European Users. Users in the European Union understand and consent to the processing of personal information in the United States.
14n. Government Use. If Recipient is a U.S. government entity, Recipient acknowledges that any Software and User Guides that are provided are "Commercial Items" as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.