THIS AGREEMENT GOVERNS YOUR USE OF SOFTWARE AND SERVICES PROVIDED BY INSIGHTBYTE, INC. D/B/A PEPR, ON ANY AND ALL THIS AGREEMENT GOVERNS YOUR USE OF SOFTWARE AND SERVICES PROVIDED BY INSIGHTBYTE, INC. D/B/A PEPR, ON ANY AND ALL PLATFORMS INCLUDING BUT NOT LIMITED TO OUR MOBILE APP.
BY ACCEPTING THIS AGREEMENT, EITHER BY EXECUTING AN ORDER FORM FROM PEPR, BY CLICKING A BOX INDICATING YOUR ACCEPTING, OR BY INSTALLING OR USING THE APP, YOU AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING ANY UPDATES TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OUR SOFTWARE OR SERVICES.
2. Our Responsibilities
3. Use of Services
5. Fees and Payment
6. Term and Termination
8. Representations and Warranties
10. Limitation of Liability
11. Governing Law
12. General Provisions
“Agreement” means this Master License Agreement, including the Order Form as further defined below in this Section 1.
“Confidential Information” means all information disclosed by a party to another party, whether orally or written, that is classified as confidential or that reasonably should be understood as confidential in nature.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, copyrights, trademarks, developments, designs, discoveries, concepts, original works of authorship, formulas, processes, compositions of matter, computer software, algorithms, databases, moral rights, trade secrets, ideas, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Order Form” means the document specifying the Services to be provided by Us to You.
“Service” and “Services” mean the services that You ordered from Us through Our Order Form and made available by Us to You online including through our mobile app, or via other means.
“We”, “Us”, or “Our” means INSIGHTBYTE, Inc. d/b/a Pepr.
“User” means an individual who has login credentials to access the Service for whom You have ordered the Service.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement.
“Your Data” means electronic data and information provided by You and utilized in the Services.
2. OUR RESPONSIBILITIES
2.1 Provision of Services and Force Majeure. We will use commercially reasonable efforts to make Our services available 24 hours a day, 7 days a week except for (a) planned downtime (of which We will give advance notice and schedule to the extent practicable during weekend or off-peak hours and (b) any unavailability beyond Our reasonable control including, but not limited to, acts of war, labor difficulties, riots, fire, flood, hurricane, windstorm, governmental laws, acts or regulations, or shortages of materials; provided, however, that such relief will only continue for so long as the force majeure conditions remain.
2.2 Data Protection. We will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. These safeguards will include, but will not be limited to, encryption of user passwords, transmission of data via SSL, and measures for preventing use or disclosure of Your Data by Our personnel except as necessary to provide the Services or as required by law.
2.3 Results. Our site is made available to you on an “as is,” “with all faults” and “as available” basis with the express understanding that Your use of the site and Services is at Your own discretion and risk. We make no claims or promises as to the quality, accuracy or reliability of the site, site content, or software as all results generated through our Services are dependent upon Your Data, its quality, accuracy and reliability. It is your responsibility to ensure that Your Data is accurate, correct and reliable, and as such, we hold no responsibility as to the results generated through the use of Your Data.
3. USE OF SERVICES
3.1 Licenses. Unless otherwise indicated on the applicable Order Form, Services are purchased on a License basis covering the term indicated on the Order Form. Nonetheless, all License Services are hereby restricted and limited as per the terms stated below in Section 3.3.
3.2 Your Responsibility. You may use our Services only for Your internal business purposes. You are responsible for (a) complying with the terms of this Agreement; (b) the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of or right to use Your data and the means by which You acquired Your data; (c) safeguarding and maintaining the secrecy of Your usernames and passwords at all times and notifying Us promptly of any unauthorized use of Your usernames and passwords; and (d) using the Service in compliance with applicable laws and government regulations.
3.3 Use Restrictions. These Services are intended only for the Users set out in the Order Form, whether such Users are entities or individuals. If entities, You hereby agree to abide by the terms and conditions of the 2015 Pricing Schedule attached hereto and incorporated herein as Exhibit A. You further acknowledge and agree that you will not exceed the number of Users as outlined in your specific License plan. Furthermore, You will not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party or use the Service for third party training, commercial time sharing, rental or service bureau use in any way; (b) modify, copy, distribute, transmit, display, reproduce, disassemble, decompile, reverse engineer, or make derivative works based upon any portion of the Service; (c) interfere with or disrupt the integrity or performance of any Service contained herein; (d) use the Service to share or store any data or software which contains a virus, Trojan horse, worm, malware, or other harmful component; (e) create Internet “links” to Our site or “frame” or “mirror” any portion of our site or Service on any other server or wireless or Internet-based device; or (f) access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions, or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service.
3.4 Third Party Integrations. User hereby acknowledges that any use of third-party application programming interface software (“Third-Party API”) may result in inaccuracies or misuse. If You decide to use Third-Party API, You will be responsible for reviewing and understanding the terms and conditions associated with such Third-Party API. Furthermore, You agree that we are not responsible for the performance of the services and actions of these third parties as well as any results generated by them.
4.1 Reservation of Rights. We retain all right, title, and interest in and to the Service including all intellectual property rights. Your use of the Service does not grant or confer any rights to You, by license or otherwise, in or to the Service. You acknowledge and agree that We may modify the Service at our sole discretion at any time.
4.2 Intellectual Property. We are the sole and exclusive owner of all right, title, and interest, including all Intellectual Property Rights in and related to the Service and all other information provided by You, excluding Your data, or any other party relating to Service functionality or organization, including but not limited to any graphics, content, features, layouts, trade names, logos, trademarks, service marks, domain names, social media identifiers, templates or materials provided by Us, any suggestions, ideas, enhancement requests, feedback, recommendations, modifications, or derivative works related to the Service, and any materials, software, technology or tools used or provided by (collectively the "Intellectual Property"). Once any data has been de-identified and made anonymous, we own such data compilations and aggregations, and any insights or meta-data derived from such aggregations, including any and all Intellectual Property Rights therein, and such items are deemed Our Confidential Information, even though certain limited elements of Our Confidential Information may previously been in your possession and/or in the public domain. You shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Intellectual Property or any portion thereof, or use such Intellectual Property as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, unless We grant You, in writing, a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the term of this Agreement. You shall keep the Intellectual Property confidential, and shall not prepare any derivative work based on the Intellectual Property or translate, reverse engineer, decompile or disassemble the Intellectual Property. You shall not take any action to challenge or object to the validity of Our rights in the Intellectual Property or Our ownership or registration thereof. All rights to the Intellectual Property not expressly granted in this Agreement are reserved by Pepr. We do not grant You a license or other authorization to copy or use our Intellectual Property Rights, except as expressly provided herein.
4.3 License by You to Use Feedback. You hereby assign any rights and interest in any suggestion, idea, feedback recommendations, modifications, or derivative works related to the Service to Us and agree to execute all documents reasonably requested by Us to demonstrate such assignment and to provide any information and cooperation reasonably requested by Us in order for Us to protect and enforce Our rights therein.
4.4 Aggregate Data. We may monitor use of the Services by all of our customers and use the data gathered in an aggregate and anonymous manner. Such usage may include compiling statistical information related to the performance of our customers’ revenue funnels and other financial and operations data, but only in an aggregate and anonymous manner that does not identify the name of your company or similar identifying information. You agree that we may use and publish such anonymous and aggregate information, provided that such information does not identify you and that it complies with the confidentiality provisions in Section 7 of this Agreement.
5. FEES AND PAYMENT
5.1 Fees. In exchange for use of the Service, you agree to pay all fees specified on the Order Form. Payment obligations are non-cancelable and fees paid are non-refundable except as provided in Section 6.3. Some portions of our Services may be priced based on the size of Your organization, and if listed as such on the Order Form, we may adjust the fees owed if the size of Your organization changes during your License term.
5.2 Invoicing and Payment. You will provide us with either valid credit card information or complete and accurate billing and contact information for invoicing, which includes legal company name, street address, telephone number, and name and email address of authorized billing contact. If You provide credit card information, You authorize Us to charge the credit card with the Services listed on the Order Form for the initial License term and any renewal License term(s) thereafter. We will charge your credit card on the effective date of the Agreement for the initial term and on the renewal date for each subsequent renewal term(s), either annually or in accordance with any different billing frequency as specified on the Order Form. If the Order Form specifies a payment method other than credit card, We will invoice you as of the effective date of this Agreement for the initial term and 30 days in advance of each renewal term or each billing cycle if billing frequency is not annually. Payment is due net 30 days from the invoice date.
5.4 Currency. All fees specified in the Order Form are stated and will be billed in U.S. dollars.
5.5 Taxes. Our fees are exclusive of all taxes, levies, or duties (collectively referred to as “Taxes”) imposed by taxing authorities. You shall be responsible for paying all Taxes associated with Your purchase hereunder. In the event We have a legal obligation to pay or collect taxes related to Your purchase, We will invoice You and You will pay such amount in accordance with Section 5.2 unless You provide Us with a valid tax exemption certificate.
5.6 Non-Payment and Suspension. If any amount owed by You is 30 or more days overdue, We may suspend our Service to you until such amounts are paid in full. We will provide to You at least 10 days’ notice that Your account is overdue prior to suspending Service. If either You or We initiate cancellation of this Agreement, You will be obligated to pay any balance due on Your account. As a result of non-payment and suspensions, we will not delete any of Your Data. You may retrieve Your Data from the Services only upon providing payment in full of all amounts due and owing, including any charges incurred for the cancellation of the Services, if applicable. Upon said payment in full, we will provide you with the same data retrieval assistance that we generally make available to all customers post termination of this Agreement. If such assistance is not adequate and You shall require additional assistance, such further assistance shall be subject to a separate mutual agreement to be entered by You and Us.
6. TERM AND TERMINATION
6.1 Term. The term of this Agreement commences on the Effective Date on a License basis and shall remain in effect for the time period specified on the Order Form. Unless otherwise indicated in the Order Form, Licenses will renew automatically for subsequent periods equal to the expiring License term, unless either party gives the other notice of non-renewal. Notice of non-renewal must be at least 30 days before the end of the relevant License term and be provided in accordance with Section 12.6. License fees applied during any automatic renewal period will equivalent to the License fees during the immediate prior term unless We have given you notice of a pricing increase before to the end of the prior term, in which case the pricing increase will be effective upon renewal and each following renewal.
6.2 Termination. Either party may terminate this Agreement for cause upon 30 days’ written notice in accordance with Section 12.6 in the event the other party has materially breached this Agreement and if the breach remains unresolved at the end of the 30-day period.
6.3 Refund or Payment upon Termination. If You terminate this Agreement under the provisions of Section 6.2, We will issue you a refund of any prepaid fees covering the period from the termination effective date to the end of the current term. If We terminate this Agreement under the provisions of Section 6.2, you will pay any unpaid fees covering the remaining term specified in the Order Form. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the termination effective date. We will not exercise Our rights under Section 5.6 or terminate the agreement if You dispute an invoice in good faith and continue to pay any undisputed amount when it becomes due and cooperate with Us in a timely and reasonable manner to resolve the dispute. In the event a resolution between parties is not achieved within a reasonable period of time, We reserve the right to immediately terminate this Agreement.
6.4 Surviving Provisions. In the event of termination or expiration of this Agreement, the following Sections will survive: “Ownership”, “Fees and Payment”, “Confidentiality”, “Disclaimers”, “Indemnification”, “Limitation of Liability”, “Governing Law”, and “General Provisions”.
6.4 Data Portability. Within 30 days after the effective date of termination of this Agreement, You may make a written request to Us to make Your Data available to You for export or download. After said 30-day period, We shall have no obligation to maintain or provide Your Data, and may thereafter delete or destroy all copies of Your Data in our system, possession or control, unless otherwise, legally prohibited.
7.1 Confidential Information. Your Confidential Information includes Your data and Our Confidential Information includes the Services. Confidential Information also includes the terms and conditions of this Agreement and all Order Forms (including pricing) for each party.
7.2 Exceptions. Neither Your nor Our obligations under Section 7 will apply to any information that either party can demonstrate (a) was in the public domain prior to it being to communicated to the other party or becomes part of the public domain through no fault of either parties own after the disclosure of information; (b) was already in the other party’s possession without an obligation of confidentiality; or (c) is disclosed pursuant to the order of a court of competent jurisdiction, or any order of any governmental agency, provided each party gives notice to the other party of such an order and an opportunity to prevent disclosure.
7.3 Protection of Confidential Information. Each party agrees (a) to not disclose any Confidential Information to any third party without first obtaining the other party’s written consent, (b) to only disclose the Confidential Information to employees and such consented to third parties under written obligations of confidentiality with respect to the Confidential Information that are no less restrictive than those contained herein, (c) use the Confidential Information solely in accordance with the terms of this Agreement, and (d) to protect the Confidential Information from unauthorized disclosure or use. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliates, legal counsel, or accountants will remain responsible for such affiliate’s legal counsel’s or accountant’s compliance with Section 7.3. Notwithstanding the foregoing, You hereby acknowledge and agree that Pepr may compile data and information based on Your Data and usage of Our Services, however, all such data and information will be stripped from any personally identifiable information prior to being used as further described above in Section 4.4. Such aggregated data may be used for case studies, usage patterns, improvements of Services, and for any other purposes, provided that such use shall not identity You.
7.4 Access to Your Information by Third Parties. On occasion, We may share with third parties aggregated data stripped of all personal identifiers without your consent.
8. REPRESENTATIONS AND WARRANTIES
8.1 Representations. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
8.2 Warranty. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to the Service.
8.3 Disclaimers. Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory, or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement to the maximum extent permitted by applicable law. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
9.1 Indemnification by Us. We will defend You against any claim, demand, suit, or proceeding made or brought against You by a third party claiming that the use of Our Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights. We will indemnify You from any damages, attorney’s fees and costs finally awarded against You as a result of a claim against You provided You (a) promptly give Us written notice of the claim against You, (b) give Us sole control of the defense and settlement of the claim against you, and (c) give Us all reasonable assistance, at Our expense.
9.2 Indemnification by You. You shall indemnify, defend, and hold harmless Us, our licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, members, employees, advisors, and agents from and against any losses, damages, liabilities, expenses, costs, claims, causes of action or complaints from a third party arising out of or related to Your use of the Service in breach of this Agreement, including but not limited to reasonable attorney’s fees, costs, expert witness fees, or litigation loss of any kind provided We (a) promptly give You written notice of the claim against Us, (b) give You sole control of the defense and settlement of the claim against us, and (c) give you all reasonable assistance, at Your expense.
10. LIMITATION OF LIABLITY
10.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABLITY ARISING OUT OF OR RELATED TO THIS AGREEEMENT, WHETHER ARISING IN TORT, CONTRACT, COMMON LAW, STATUTE, REGULATION OR OTHERWISE EXCEED THE TOTAL AMOUNT PAID BY YOU. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY COMPENSATORY, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMANGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMINC ADVANTAGE) ARISING OUT OF YOUR USE OF THE SERVICE OR INABILITY TO GAIN ACCESS TO OR USE THE SERVICE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. SOMES STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABLITY FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES. IN SUCH STATES, LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
FURTHERMORE, YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE OR OUR SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION OF ACCESS TO, OR USE OF THE SITE.
11. GOVERNING LAW
11.1 Governing Law and Jurisdiction. In the event of any dispute related to the Service, the laws of the State of Delaware shall govern the validity, performance, enforcement, interpretation and any other aspect of this Agreement without regard to principles of conflicts of laws thereunder. Any proceeding arising from this Agreement shall be exclusively brought and exclusively maintained in a state or federal court situated in Polk County, Iowa, and You hereby consent to waive any objections to the exclusive personal jurisdiction of, and exclusive venue in, such courts.
12. GENERAL PROVISIONS
12.1 Local Laws and Export Compliance. You represent and warrant that You will comply with all applicable local, state, national, province, and foreign laws, including but not limited to export, re-export, and foreign policy controls which may be imposed by the United States government, and treaties and regulations in connection with Your use of the Service. You acknowledge and agree that the Service shall not be used by, transferred to or otherwise exported or re-exported to countries, or nationals or residents thereof, as to which the United States maintains an embargo.
12.2 Entire Agreement and Order of Precedence. This Agreement comprises the entire agreement between You and Us and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No modification, amendment, or waiver of provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency between the Order Form and the Agreement, the Order Form shall take precedence.
12.3 Assignment; Change in Control. Neither party may assign any of its rights or obligations hereunder without the other party’s prior written consent; provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice an accordance with Section 12.6. In the event of a termination under these conditions, We will refund You any unpaid prepaid fees covering the remainder of the License term.
12.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.5 Severability. If any provision(s) of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
12.6 Notice. Where required, We will give notice to You by a general posting on our site or by electronic mail to Your email address on record. Such notices shall be deemed to have been given upon the expiration of 48 hours after posting to the site or 12 hours after sending electronic mail. You may give notice to us by electronic mail to the addressL PLATFORMS INCLUDING BUT NOT LIMITED TO OUR MOBILE APP.