Latest Update: January 2022
PLEASE READ THIS AGREEMENT CAREFULLY. This Agreement (“Agreement”) governs Subscriber’s use of the applications, software, their associated upgrades, patches, and updates, data, reports and related services (the “Subscription Content”) currently provided, or which will be provided by InsightsNow, Inc. or any one of its successors or affiliated companies (collectively referred to as “InsightsNow”) through the InsightsNow® Innovation Center™, and sets forth the terms and conditions that will govern the relationship between InsightsNow and Subscriber and all transactions between InsightsNow and Subscriber, including as it relates to the services and/or goods provided pursuant to any Statement of Work (“SOW”) executed by the parties pursuant to these Terms of Use, the terms of which SOW(s) are incorporated in this Agreement by reference.
This Agreement sets out the basis on which InsightsNow makes the Subscription Content available to you (“Subscriber”) and on which Subscriber may use such Subscription Content. By using Subscription Content, Subscriber agrees to accept and to be bound by this Agreement. If Subscriber does not agree, please do not use any Subscription Content. Subscribers account for all users in Starter, Premium, or Enterprise Subscription plans regardless of annual agreement or pay-as-you-go account structures, in addition to Free Account holders.
INSIGHTSNOW reserves the right to change, modify, add or delete articles in this Agreement at any time, in accordance with the procedures described in Section 8.
GRANT OF LICENSE.
1.1 InsightsNow grants Subscriber a non-exclusive, non-transferable, non-sublicensed personal license to use the Subscription Content (in whole or in part) including that contained in Reports, for such time until either Subscriber or InsightsNow terminates this Agreement. Subscriber must in no event use, nor allow others to use, the Subscription Content for commercial purposes without first obtaining a Reseller License to do so from InsightsNow, unless Subscriber has specifically purchased a Group License, as set forth in the separately executed Purchase Agreement, and is in compliance with such Group License, in which case Subscriber can make commercial uses within Subscriber’s Group without a Reseller License. Any non-commercial use of Subscription Content outside of a Subscriber’s Group shall include attribution to InsightsNow, Inc. Updates, upgrades, patches and modifications may be necessary in order to be able to continue to use the Subscription Content on certain hardware. This subscription content is licensed to the Subscriber not sold.
1.2 Subscriber shall not, directly or indirectly (i) sell, resell, rent out, lease, license, distribute, market, exploit the Subscription Content or any of its parts, including deliverables such as tables, spreadsheets, presentation slides, downloadable files, and other Innovation Center reports, commercially to third parties not included in Subscriber’s Group License without first obtaining a Reseller Agreement for the same from InsightsNow; (ii) reverse engineer, decompile, disassemble, adapt, reproduce, or create derivate works of this Subscription Content (except if the Subscription Content enables Subscriber through a specific feature to create, generate or submit subscriber-generated content and for which Subscriber will need to create or be a part of a Group Account and comply with the Terms of Use), in whole or in part; (iii) create, use and/or distribute “cheat” or “hack” programs or software applications for this Subscription Content; (iv) remove, alter, disable or circumvent any copyright and trademark indications or other authorship and origin information, notices or labels contained on or within this Subscription Content and (v) export or re-export this Subscription Content or any copy of adaptation in violation of any applicable laws or regulations.
1.3 Credits. Subscriber will be issued access credits in accordance with the Purchase Agreement to access Subscription Content and generate Reports. Unused credits issued during a Trial Period will expire at the end of the Trial Period. Additional credits will be made available for purchase during the term of the Subscription Period. Upon renewal of a Premium or Enterprise Subscription, any unused credits, other than Trial Subscription credits, purchased by Subscriber may be carried over to the new Premium or Enterprise Subscription Period. Subscribers who are members of Starter Plans are not able to carry a credit balance and not able to roll over any credits. Users with Free Accounts must request an upgrade for Starter Account benefits.
1.4 Consent to Use of Data. Subscriber agrees that InsightsNow may collect and use data and related information, other than personally identifying information, including but not limited to technical information to facilitate the provision of software updates, Subscription Content support, and other services to you (if any) related to the Subscription Content. Also, please see the InsightsNow Privacy Policy which governs the use of personally identifiable information and your associated rights.
1.5 Group Accounts. A given Group Account for Premium and Enterprise Subscription holders may include an unlimited number of Subscribers who are employed by the Group Account Holder and which constitute the Group Account. For Group Accounts having more than one Subscriber, the Group Account Holder shall be responsible for designating an Account Administrator in the Purchase Agreements who shall ensure that only authorized employees of the Group Account are invited to become Subscribers under the Group Account. The Account Administrator shall further ensure that Subscribers to the Group Account comply with any requirements and/or policies concerning use and access established by InsightsNow and the Group Account Holder. The Account Holder and/or the Group Administrator share responsibility for maintaining their Group Account members and may request to delete Subscribers from their Group Account at their discretion; for which removed Subscribers will no longer have access to their Account. For single Subscriber Group Accounts with Premium or Enterprise plans, Subscriber shall serve as Account Holder. Subscribers enrolled in a Starter Plan are only allowed up to five teammates and are restricted from Group Account Holder or Group Admin benefits.
1.6 While using the Subscription Content, Subscriber agrees to comply with all applicable laws, rules and regulations. In all cases, Subscriber may only use the Subscription Content according to anticipated use of the Subscription Content.
For example, and without limiting InsightsNow’s rights to take action against Subscriber, Subscriber may not:
a. create, use, share and/or publish by any means in relation to theSubscription Content any material (text, words, images, sounds, videos, etc.) which would breach of a duty of confidentiality, infringe any intellectual property right or an individual’s right to privacy or which would incite the committing of an unlawful act (in particular, piracy, cracking or circulation of counterfeit software);
b. modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of theSubscription Content, or their accessibility to other users, or attempt to do any of the above;
c. transmitor propagate any virus, trojan horse, worm, bomb, corrupted file and/or similar destructive device or corrupted data in relation to the Subscription Content, and/or organize, participate in or be involved in any way in an attack on InsightsNow’s servers and/or the Subscription Content and/or those of its service providers and partners;
d. create, supply or use alternative methods of using theSubscription Content, for example server emulators;
e. transmitting or communicating any material or content which, in the sole and exclusive discretion ofInsightsNow, is believed or deemed offensive, including, but not limited to, language that is harmful, threatening, unlawful, abusive, harassing, defamatory, disparaging, obscene, sexually explicit, or racially, ethnically, or otherwise objectionable; or
f. harassing or threatening any other users in theSubscription Content.
TERM. This Agreement shall remain in force for as long as the Subscriber has access to the Innovation Center unless terminated earlier in accordance with Section 7. After two years of inactivity, Subscriber may lose access to the Innovation Center Account and Subscriber information may be deleted from the Innovation Center. Please refer to the InsightsNow Privacy Policy which governs the use of personally identifiable information and your associated rights.
SUBSCRIPTION FEE. Subscriber shall pay the applicable content access fees set forth in the Purchase Agreement or Statement of Work. Paid Subscription term lengths may vary and will be documented accordingly.
4. OWNERSHIP.All title, ownership and intellectual property in and to the Subscription Content (including, without limitation, all information, data, materials, text, graphics, music or sounds, all messages or items of information, names, themes, objects, effects, dialogues, slogans, diagrams, concepts, videos, audio-visual effects, domain names and any other elements which are part of the Subscription Content, individually or in combination) as well as any deliverables provided to Subscriber by InsightsNow, and any data compiled by or on behalf of Subscriber, including surveys, research, activities, or any other method, are owned by InsightsNow, excepting subscriber-generated content. The Subscription Content is protected by national and international laws, including patent, trademark, and copyright treaties and conventions and other laws. The Subscription Content may contain certain licensed materials and, in that event, InsightsNow’s licensors may protect their rights in the event of any violation of this Agreement. Any reproduction or representation of these licensed materials in any way and for any reason without InsightsNow’s prior permission and, if applicable, InsightsNow’s licensors’ permission, is prohibited. Except as expressly set forth in this Agreement, all rights not granted hereunder to Subscriber are expressly reserved by InsightsNow.
This Agreement confers no title or ownership in the Subscription Content and should not be construed as a sale of any rights in the Subscription Content.
5. WARRANTY DISCLAIMER, LIMITATION OF LIABILITY.
Subscriber expressly acknowledges that use of the Subscription Content is at Subscriber’s own risk. to the fullest extent permissible under applicable law, the Subscription Content is supplied on an “as is” and “as available” basis. InsightsNow and/or InsightsNow’s Licensors do not make and hereby disclaim any guarantees, conditions, warranties of any kind, express, implied or statutory or other terms including as to: (a) its conformity, accuracy, currentness, completeness, reliability or security (b) its suitability for a particular use; (c) implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of quiet enjoyment, and of non-infringement of third-party rights; or (d) its market value. InsightsNow does not warrant that the Subscription Content will be uninterrupted or error-free, that defects will be corrected, or that the Subscription Content is free of viruses or other harmful components. no oral or written information or advice given by InsightsNow shall create a warranty. Subscriber assumes all responsibility for selecting the Subscription Content to achieve Subscriber’s intended results, and for the installation of, use of, and results obtained from the Subscription Content.
To the extent not prohibited by law, in no event shall InsightsNow be liable for personal injury or any incidental, special, indirect, or consequential damages whatsoever, including without limitation, damages for loss of profits, loss of data, business interruption, or any other commercial damages or losses, arising out of or related to Subscriber’s use of or inability to use the Subscription Content, however caused, regardless of the theory of liability (contract, tort, or otherwise) and even if InsightsNow has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to Subscriber.
Notwithstanding the aforementioned limitations of liability, Subscriber’s sole remedy in the event of a dispute with InsightsNow or its Licensors is to cease to use the Subscription Content; and if applicable, seek damages for Subscriber’s losses. in no event shall InsightsNow or its Licensors be liable for damages in excess of any amount you have paid to InsightsNow for the Subscription Content during the twelve (12) months immediately prior to the time Subscriber’s cause of action arose.
6. INDEMNITY.
Subscriber is solely responsible for any damage caused to InsightsNow, its Licensors, and other users of the Subscription Content or any other individual or legal entity as a result of Subscriber’s violation of this Agreement.
Subscriber hereby agrees to defend, indemnify and keep indemnified InsightsNow and their Licensors against any claim or alleged claims, liabilities, losses damages and all costs (including lawyers’ fees), directly or indirectly attributable to Subscriber’s fault and/or resulting from (a) a violation of any provision of this agreement or (b) Subscriber’s use or misuse of the Subscription Content. InsightsNow reserves the right to take sole responsibility, at its own expense, for conducting the defense of any claim for which Subscriber agreed to indemnify InsightsNow. The provisions of this Section 7 shall remain in force after termination of this Agreement.
7. TERMINATION.
InsightsNow (or its Licensors) may terminate this Agreement for breach of any terms of this Agreement by Subscriber. Termination by InsightsNow will be effective upon (a) notice to Subscriber or (b) termination of Subscriber’s Account or (c) at the time of InsightsNow’s decision to discontinue offering and/or supporting the Subscription Content. In the event InsightsNow terminates this Agreement for any reason other than a breach of the Agreement by Subscriber, InsightsNow will refund any unused credits held by Subscriber at the time of termination. Subscriber can terminate at the end of a Subscription term by electing not to renew or may terminate upon thirty (30 days) notice to InsightsNow. Any unused credits in a Group Account will be forfeited at such time as the last remaining Subscriber under a given Group Account terminates this Agreement.
8. CHANGES TO THISAGREEMENTOR TO THE SUBSCRIPTION CONTENT.
InsightsNow reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this Agreement for security, legal, best practice or regulatory reasons. Such changes will be effective with or, as applicable, without prior notice to Subscriber. If any future changes to this Agreement are unacceptable to Subscriber or cause Subscriber to no longer be in agreement or compliance with this Agreement, Subscriber may terminate this Agreement in accordance with Section 7. Subscriber’s continued use of the Subscription Content following any revision to this Agreement constitutes Subscriber’s complete and irrevocable acceptance of any and all such changes.
InsightsNow may modify the Subscription Content for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the Subscription Content. Subscriber agrees that InsightsNow may cease support to previous versions of the Subscription Content upon availability of an updated version. InsightsNow shall have no obligation to furnish any maintenance or customer support with respect to the Subscription Content.
9. MISCELLANEOUS.
9.1 Subscriber may not use or otherwise export or re-export the Subscription Content except as authorized by United States law. In particular, but without limitation, the Subscription Content may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Subscription Content, Subscriber represents and warrants that Subscriber is not located in any such country or on any such list. Subscriber also agrees that Subscriber will not use these products for any purposes prohibited by United States law.
9.2 Severance. If any court of competent jurisdiction or competent authority finds that any provision of this Agreement is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable to reflect InsightsNow’s initial intentions.
9.3 No Waiver. No failure or delay by InsightsNow (or its Licensors) to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Waiver of a right or remedy may be considered to have taken place only after signing of a written statement to this effect by InsightsNow or by Subscriber.
9.4 Force Majeure. Neither party shall be responsible for delay or failure in performance caused by any government act, law, regulation, order or decree, by communication or power failures beyond its control, acts of terrorism or war, or by fire, flood or other natural disasters or by other causes beyond its reasonable control, nor shall any such delay or failure be considered to be a breach of this Agreement; provided that the delayed party gives the other party prompt written notice thereof and uses its best efforts to resume performance. In no event will any of the foregoing apply to Subscriber’s obligation to pay pursuant to the terms of this Agreement.
9.5 Law, Jurisdiction and Dispute Resolution.
9.5.1 To the extent permitted by applicable law, this Agreement, and any disputes or claims arising out of or in connection with it, or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of the United States and the State of Oregon, without giving effect to any principles of conflicts of laws. This Agreement shall not be governed by the United Nations Conventions of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded from any interpretation of this Agreement.
9.5.2 InsightsNow’s goal is to provide Subscriber with a neutral and cost-effective means of resolving a dispute quickly. Thus, for any claim related to this Agreement Subscriber must, initiate dispute proceedings by notifying InsightsNow about the nature of Subscriber’s dispute and providing, if warranted, an opportunity to cure. InsightsNow may offer to settle the claim, provided however that if the dispute is not resolved within 30 days from the date of InsightsNow ‘s offer to settle or InsightsNow ‘s receipt of the notification Subscriber may invoke binding arbitration by filing a separate Demand for Arbitration. A party electing arbitration shall initiate it through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted, at the option of the party seeking relief, in person, by telephone, online, or based solely on written submissions; (b) any in person arbitration will take place in Portland, Oregon; (c) either party may bring a claim in small claims court in lieu of arbitration; (d) the ADR provider may award any form of individual relief; (e) each party will bear its own costs (f) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction; (g) claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
9.5.3 All claims Subscriber brings against InsightsNow must be resolved in accordance with this Section 9.5. All claims filed or brought contrary to this Section shall be considered improperly filed and a breach of this Agreement. Should either party file a claim contrary to this Section, the other party may recover attorneys’ fees and costs, provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.
