Updated: March 27th, 2017
PLEASE READ THESE TERMS OF SERVICE BEFORE REGISTERING FOR THE DECISION CLOUD ACCOUNT. PARTICIPATION IN THE DECISION CLOUD SERVICE ACCOUNT INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS AND ARE AUTHORIZED TO DO SO ON BEHALF OF THE COMPANY IDENTIFIED IN THE REGISTRATION FORM. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER OR PARTICIPATE IN THE DECISION CLOUD SERVICE. "CLIENT" OR "YOU" MEANS ANY ENTITY IDENTIFIED IN A REGISTRATION FORM SUBMITTED BY THE SAME OR AFFILIATED PERSONS, AND/OR ANY NETWORK OR AGENCY ACTING ON ITS (OR THEIR) BEHALF, WHICH SHALL ALSO BE BOUND BY THE TERMS OF THIS AGREEMENT.
This terms of service Agreement (the "Agreement") is a legal contract between you (the "Client") and Insight, LLC, AKA iGen Management, LLC, AKA Decision Cloud ("Insight"). The Agreement governs your use of the Insight website or Decision Cloud application ("Site Use") and Insight's data services ("Services"). Your Site Use and use of the Services are conditional on your acceptance of this Agreement. By using any Service or by checking the acceptance box of this Agreement, you accept and agree to be bound by all the terms and conditions of this Agreement.
SERVICES. Insight will provide fraud monitoring and risk scoring services to the Client. Insight will provide Client a snippet of code that will need to be placed on the Client's web property, all provide an API for Client to post leads. The Decision Cloud, and all other Insight data services are accepted on an as-is basis.
COMPENSATION. The services above will be provided by Insight to Client. All payments and terms will be made in accordance with the terms agreed to by Client upon registration or in accordance with a subsequent amendment, addendum or payment authorization form that's mutually agreed upon by both parties. The terms of such amendment, addendum or payment authorization form will supersede the terms agreed to upon registration. Pricing is subject to change. Insight must notify Client no less than fifteen (15) days in advance of any price change and if Client does not agree with the price changes and wishes to terminate the agreement, then Client must give Insight written notice to terminate the agreement on or before that 15th day.
PAYMENT TERMS. Client agrees to be billed on or about the first day of every month for the monthly usage based on the pricing details specified in the registration process unless client agrees to be billed on a prepay basis at a predetermined cost. All Payments will be made on an automated basis via Client's credit card on file. Client will be responsible for making payment via alternate means if credit card is not successfully charged for any reason. Any late payments will accrue interest at a rate of 1.5% per month or the maximum allowed by law, whichever is greater. Client will be responsible to reimburse Insight for any fees incurred in collecting payment which would include any legal fees and/or collection fees associated with the collection of the past due amount.
TERM. This agreement will become effective immediately upon Client's registration and is on an annual basis, unless specified and agreed to differently in writing between the parties prior to registration. Either party may elect to terminate this agreement with 30 days prior written notice to the other party prior to the Term end.
CONFIDENTIALITY. Insight Obligations. Insight acknowledges that, during the term of this Agreement, it may have access to confidential Client information.Insight will use such information to provide Insight services and will not disclose such information in whole to any individual or entity, except to those who require access in connection with the provision of services. This confidentiality obligation applies to all personally identifiable information and shall not apply, or shall cease to apply, to information which (i) was publicly available at the time of disclosure to Insight, (ii) becomes generally known to the public after disclosure to Insight, through no fault of Insight, (iii) is determined to be part of a fraudulent transaction or (iiii) is disclosed under force of law, governmental regulation or court order.
CLIENT OBLIGATIONS. Client acknowledges that the Services and any other information provided to Client by Insight incorporates confidential and proprietary information developed by or acquired by Insight ("Insight Confidential Information"). Client will take (and will cause its affiliates to take) all reasonable precautions necessary to safeguard the confidentiality of the Insight Confidential Information. Confidential Information includes any and all documents, agreements, attachments, pricing structures, code, processes, software, logic used to detect fraud, reports, methods, algorithms, architecture, business plans, trade secrets or marketing plans used by Insight.
CLIENT TRADEMARKS. Client hereby grants Insight authorization to use its trademarks, trade names, logos and other marks of Client in connection with its provision of its Services and in connection with the marketing services by Insight of its services to third parties. Insight agrees to comply with any reasonable written guidelines of Client relating to usage of Client's trademarks or trade names, which guidelines are received by Insight prior to the date the services are due to be rendered.
INSIGHT INTELLECTUAL PROPERTY. Client may not attempt or allow access for others to attempt to reverse engineer, disassemble, decompile, or translate the Software or service, or otherwise attempt to derive the source code of the Software or attempt to derive any algorithms, methods, logic, architecture or processes used by Insight. All trademarks, service marks, patents (pending and issued), copyrights, trade secrets, know-how, all services provided by Insight and other proprietary rights in or related to the software or otherwise used to perform services for Client hereunder, will remain the sole and exclusive property of Insight, whether or not specifically recognized or perfected by applicable law, or whether or not explicitly so stated.
NON-SOLICITATION OF EMPLOYEES. Client agrees that it will not at any time during this agreement or for a period of 5 years from the termination of this agreement, either individually or through any company controlled by Client and either on its own behalf or on behalf of any other entity competing or endeavoring to compete with Insight, directly or indirectly solicit for employment, or endeavor to employ or to retain as an independent contractor or agent, any person who is an employee of Insight. Client further agrees that, should it be approached by a person who is or has been an employee of Insight during the period described above, it will not offer to nor employ or retain as an independent contractor or agent any such person for a period of 5 years following the termination of this agreement.
NON-COMPETITION. Client agrees that it will not pursue or operate a similar business to Insight and/or a business that in any way competes with Insight for a period of 5 years following the termination of this agreement. Client agrees that the preceding statement applies to the Client itself and any of it's officers, directors, owners, partners, related entity affiliated with or partnered with Client today or at any time in the future.
INDEMNIFICATION. Client shall indemnify and hold Insight, and its officers, directors, employees, and agents, harmless from and against any claims, losses, damages, liabilities, costs or expenses of any nature (including reasonable attorney's fees) suffered or incurred by any of them for any reason whatsoever, including but not limited to losses that arise from technical errors or omissions. Client shall also indemnify Insight from any losses caused by or that arise in connection with (i) a breach of Client's obligations hereunder, (ii) any material breach of Client's representations and warranties contained herein, (iii) Insight's collection and use of Client's end Client information, proprietary, copyright, patent, trade mark, trade secret or other information that Insight obtains from Client or any of its affiliates, partners, end Clients and vendors for purposes of providing such services, (iv) any content provided by Client or any of its affiliates, partners, end Clients and vendors. Client agrees that no fraud alert or notification given by Insight to Client should be accepted or acted upon as definite proof that the said transaction is derived from fraudulent means. Therefore, Client agrees to separately follow up and verify each transaction to Client's satisfaction before acting on it in any way. Client agrees to indemnify and hold Insight harmless from any resulting actions, damages and/or losses.
REPRESENTATIONS AND WARRANTIES. Client represents and warrants to Insight that neither any information provided or made accessible to Insight in support of this Agreement nor Client's acceptance of this Agreement will infringe on any copyright, patent, trade secret or other proprietary right held by any third party. Client represents and warrants that it has engaged the services of California in accordance with Client's terms and conditions and privacy policies, laws aimed at protecting children, international law, federal law, state law, and local law.
LIMITATION OF LIABILITY. Insight shall not be liable to Client, its officers, directors, agents or employees or to any third party for any incidental, consequential, or special damages of any kind or nature, including without limitation, lost profits, loss of data or frustration or business expectations or expected business losses, whether arising out of such party's breach of contract, technical mishaps, oversight, breach of warranty, negligence or otherwise. Client acknowledges that the maximum liability hereunder for any claims whatsoever is expressly limited to the amount paid to Insight hereunder, prorated to a maximum of 6 months.
DISCLAIMER OF WARRANTIES. Except as otherwise specifically provided herein, the application of the system and services are provided "as is" without warranty of any kind. Insight expressly disclaims any and all warranties, conditions, representations, and guarantees with respect to the application software and application services, whether express or implied, arising by law, custom, prior oral or written statements, or otherwise, including, without limitation, any warranty of merchantability, fitness or for a particular purpose, or non-infringement. Client acknowledges and understands that Insight does not warrant that the software or services will be uninterrupted or error free and that Insight may occasionally experience outages. Any such outage shall not be considered a breach of this agreement by Insight.
TERMINATION. Either party may elect to terminate this agreement with 30 days prior written notice to the other party prior to the Term end. If no such notice is given, then agreement will automatically renew for same Term (annual). If Client chooses to end services prior to Term end date, Client will be responsible for continuation of payments until end of Term.. Upon termination of this Agreement, all license rights granted to Client hereunder will terminate. Termination of this Agreement shall cause Insight to cease providing services under this Agreement; however, termination for any reason whatsoever, shall not decrease or eliminate the compensatory obligations of Client pursuant to this Agreement nor its other responsibilities and obligations as stated in this agreement.
Modification: This Service Agreement sets forth the entire understanding of the Parties with respect to the subject matter hereof. This Service Agreement may be amended by Insight at any time. Insight must notify Client fifteen (15) days in advance of any change and if Client does not agree with the changes and wishes to terminate the agreement, then Client must give Insight written notice to terminate the agreement on or before that 15th day.
Disagreements: Any dispute or other disagreement arising from or out of this Service Agreement shall be submitted to arbitration under the rules of the American Arbitration Association and the decision of the arbiter(s) shall be enforceable in any court having jurisdiction thereof. Arbitration shall occur only in Sonoma County, California. The interpretation and the enforcement of this Agreement shall be governed by California Law as applied to residents of the State of California relating to contracts executed in and to be performed solely within the State of California. In the event any dispute is arbitrated, the prevailing Party (as determined by the arbiter(s)) shall be entitled to recover that Party's reasonable attorney's fees incurred (as determined by the arbiter(s)).
Construction: Each and every term and provision of this Contract has been mutually agreed to and negotiated by the parties hereto and should be construed simply according to its fair meaning and not strictly for or against any party.
Waiver: Any waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed to be a waiver of any other breach of that provision or of any breach of any other provision of this Agreement. The failure of a Party to insist upon strict adherence to any term of this Agreement on one or more occasions will not be considered a waiver or deprive that Party of the right thereafter to insist upon adherence to that term of any other term of this Agreement.
Binding Effect: This Contract shall inure to the benefit of and be binding upon the parties hereto and their respective successors, affiliates, agents and assigns.
Relationship: Insight serves as an independent contractor to Client and to all Customers of Client, if applicable, and shall not be deemed to have incurred or undertaken any general agency or fiduciary relationships to either even if, for some purposes, Insight's conduct might conceivably be deemed or interpreted as an agent or fiduciary of either or of both.
Severability: If any provision of this Agreement is invalid, illegal, or unenforceable, the balance of this Service Agreement shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances.
Waiver of Independent Counsel: Client acknowledges it has either obtained or has waived the right to be represented by legal counsel of his/her own choosing in connection with the preparation, negotiation and execution of this Agreement.
Attorney's Fees: In the event there is any litigation between the parties arising directly and/or indirectly out of this Agreement or the transactions and services contemplated hereby, the prevailing party in such litigation shall be entitled to recover from the other litigation costs and expenses, including reasonable attorneys' and all pre-litigation and/or paralegals' fees and costs incurred before and at trial and at all tribunal levels.
Non-exclusivity of Services: It is expressly understood that Insight represents and has relationships with other companies in similar business as Client, and that Client may, at its option, now and hereafter, retain the services of individuals or companies providing services similar to Insight, and that this Agreement between CLIENT and Insight is mutually non-exclusive.
Governing Law and Venue: This Agreement shall be construed in accordance with and governed by the laws of the state of California. Venue for the enforcement of this Agreement shall be Sonoma County, California, and by execution of this Agreement the parties hereto submit to the jurisdiction of any appropriate court in Sonoma County, California.
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