iX ENGAGE TERMS OF SERVICE
These iX Engage Terms of Service (“Terms”) describe your rights and responsibilities as a customer of our iX Engage Products. If you are being invited or added to an iX Engage Product set up by a Infront X customer, the Infront X customer’s end user terms govern your access and use of the iX Engage Products (and not these Terms). These Terms are between you and Infront X, LLC (“Infront X”, “we” or “us”). As used in these Terms “you” means the entity you represent in accepting these Terms or, if that does not apply, you individually, as indicated in a signed Order Form for any of the iX Engage Products (“Order Form”), where an Order Form is available. If you do not have the authority to bind the entity you represent, please do not click “I agree” (or similar button or checkbox) that is presented to you. In the absence of an Order Form with an entity named as a party on whose behalf you represent, if you sign up for an Infront X Engage Product using an email address from an entity, then (a) you will be deemed to represent such entity, (b) your click to accept will bind that entity to these terms, and (c) the word “you” in these Terms will refer to that entity.
These Terms are effective as of (i) the date you first click “I agree” (or similar button or checkbox), (ii) the License Term in the applicable Order Form, or (iii) your use or access of an iX Engage Product, whichever is the earliest (“Effective Date”).
Please note, that these Terms do not have to be signed in order to be binding. You indicate your agreement to these Terms by clicking “I agree” (or similar button or checkbox), by accessing or using an Infront X Engage Product, or by signing an Order Form.
2. How iX Engage Products are administered.
2.1. Administrators. Administrators have rights and controls over your use of the iX Engage Products. This may include creating, monitoring or modifying End User usage permissions and managing access to Your Data by End Users or others. You are responsible for whom you allow to become Administrators and any actions they take. You agree that our responsibilities do not extend to the internal management or administration of the iX Engage Products for you except with providing bug/issue support.
2.2. Administrators Usernames and Passwords. Usernames and passwords (“Security Credentials”) will be issued by Infront X to Administrators to access the administrative portion of the licensed iX Engage Product(s). Security Credentials are granted to individually named persons and may not be shared. Administrators shall take all reasonable steps to safeguard Security Credentials. Passwords are subject to cancellation or suspension in Infront Xs sole discretion upon actual or suspected misuse. You are entirely responsible for any and all activities that occur using your Administrators’ Security Credentials, and you agree to immediately notify us of any unauthorized use of which you become aware.
2.4. Age Requirements and Responsibility for End Users. The iX Engage Products are not intended for, and should not be used by, anyone under the age of 16. You are responsible for ensuring that all End Users are at least 16 years old. You are responsible for compliance with these Terms by all End Users.
3. License to iX Engage Products.
3.1. Access to iX Engage Products. Subject to these Terms and during the applicable License Term, you may access and use the Engage Product(s) indicated in your agreement with Infront X, which may include an Order Form, for your own business purposes, all in accordance with these Terms, the applicable Order Form and the Documentation. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.
3.2. Support. During the License Term, we will provide Support, if any, for the iX Engage Products in accordance with Support Policy if indicated in the applicable Order Form.
3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the iX Engage Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the iX Engage Products to a third party; (c) use the iX Engage Products for the benefit of any third party; (d) incorporate any iX Engage Products into a product or service you provide to a third party, unless expressly authorized in the applicable Order Form; (e) interfere with or otherwise circumvent the mechanism in the iX Engage Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any iX Engage Products, except to the extent expressly permitted by by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any iX Engage Products; (h) use the iX Engage Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the iX Engage Products; or (j) encourage or assist any third party to do any of the foregoing.
3.4. Cooperation. You agree to cooperate with Infront X as necessary for Infront X to provide the iX Engage Products to you, which includes providing Infront X access to information, staff and assets as reasonably requested. Delays in receiving content, direction, approval, materials, or any other dependent deliverable in the designated format will impact the timing and delivery of the iX Engage Products.
4. Our Security and Data Privacy Policies.
4.1. Security. As part of our compliance program, we implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure.
4.4. GDPR Data Processing Addendum. If you are in the EEA, Switzerland or otherwise subject to the territorial scope of Regulation (EU) 2016/679 (General Data Protection Regulation) or any successor legislation, you can request and complete the Infront X Data Processing Addendum (available at www.infrontx.com).
5. Your Data.
5.1. Using Your Data to provide iX Engage Products to You. You retain all right, title and interest in and to Your Data in the form submitted to the iX Engage Products. Subject to these Terms, and solely to the extent necessary to provide the iX Engage Products to you, you grant us a worldwide, limited term license to access, use, process, modify, copy, distribute, perform, export, and display Your Data. We may also access your accounts and your iX Engage Products in order to respond to your support requests.
5.2. Your Data Compliance Obligations. You and your use of iX Engage Products (including use by your End Users) must comply at all times with these Terms and the Acceptable Use Policy and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the iX Engage Products and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate any Laws, any third party intellectual property, privacy rights, publicity, or other rights, or any of your or third party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the iX Engage Products.
5.3. No Sensitive Data. You will not submit to the iX Engage Products (or use the iX Engage Products to collect) any Sensitive Data. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Data submitted in violation of the foregoing.
5.4. Your Indemnity. You will defend and indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.3 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of the iX Engage Products, (ii) your breach (or alleged breach) of Section 5.2 (Your Data Compliance Obligations) or 5.3 (No Sensitive Data); or (iii) Your Materials. This indemnification obligation is subject to you receiving prompt, written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); the exclusive right to control and direct the investigation, defense or settlement of such claim, and all reasonable necessary cooperation by us at your expense.
5.5. Removals and Suspension. We have no obligation to monitor any content uploaded to the iX Engage Products. Nonetheless, if we deem such action necessary based on your violation of these Terms, including our Policies, we may suspend your access to the iX Engage Products or remove Your Data from the iX Engage Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable. We have no liability to you for removing or deleting Your Data or suspending your access to any iX Engage Products as described in this Section 5.5.
6. Third Party Products with the iX Engage Products.
6.1. Third Party Products. Your receipt or use of any third party products or services (and the third parties’ use of any of Your Data) is subject to a separate agreement between you and the third party provider. If you enable or use third party products or services with the iX Engage Products, we will allow the third party providers to access or use Your Data as required for the interoperation of their products and services with the iX Engage Products. This may include transmitting, transferring, modifying or deleting Your Data, or storing Your Data on systems belonging to the third party provider or other third parties. Any third party provider’s use of Your Data is subject to the applicable agreement between you and such third party provider. We are not responsible for any access to or use of Your Data by third party providers or their products or services, for the security or privacy practices of any third party provider or its products or services. You are responsible for your decision to permit any third party provider or third party product or service to use Your Data. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.
7. Professional Services.
7.1. Professional Services. Subject to these Terms, you may purchase or we may provide Professional Services that we will provide to you pursuant to the applicable Order Form. Professional Services may be subject to additional policies and terms, as specified by us, including Support Services Policy.
7.2. Deliverables. We will retain all right, title and interest in and to Our Deliverables. You may use any of Our Deliverables provided to you only in connection with the iX Engage Products, subject to the usage rights and restrictions as for the iX Engage Products. For clarity, the iX Engage Products are not considered to be Our Deliverables.
7.3. Your Materials. You agree to provide us with reasonable access to Your Materials as reasonably necessary for our provision of Professional Services. If you do not provide us with timely access to Your Materials, in the designated formats, our performance of Professional Services will be excused until you do so. You retain your rights in Your Materials, subject to our ownership of the iX Engage Products, any of our Deliverables or any of Our Technology underlying Your Materials. We will use Your Materials solely for purposes of performing the Professional Services. You represent and warrant that you have all necessary rights in Your Materials to provide them to us for such purposes.
7.4. Development. Infront X Software Development Lifecycle (SDLC) suite of tools will be used to provide the Professional Services.
8. Billing, Renewals, and Payment.
8.1. License Terms. iX Engage Products may be offered on a monthly or annual License Terms, as indicated in the applicable Order Form, or may be custom in connection with a campaign. License Term commences when Infront X provides you with access to the admin portal of the iX Engage Products, regardless of when voting is active.
8.2. Renewals. Except as otherwise specified in your Order Form or terms of the applicable campaign, unless either party cancels your license prior to expiration of the current License Term, your license will automatically renew for another License Term of a period equal to your initial License Term. You will provide any notice of non-renewal to our legal team (email@example.com). Cancelling your license means that you will not be charged for the next billing cycle, but you will not not receive any refunds or credits for amounts due and owing. All renewals are subject to the applicable Engage Product continuing to be offered, including standard features and functionalities, and will be charged at the then-current rates. Each party hereby expressly waives the application of New York General Obligation Law Section 5-903 to any renewal.
8.3. Modifications to Order Form. You may, at any time, increase your use of iX Engage Products by placing a new Order Form or modifying an existing Order Form. Unless otherwise specified in the applicable Order Form, you will only be charged for any increased use at our then-current rates, pro-rated for the remainder of the then-current License Term.
8.4. Payments. You agree to pay all fees in accordance with each Order Form, by the due dates. You also agree to reimburse, or pay in advance, any approved expenses which we incur as a result of providing the iX Engage Products or Professional Services to you. Other than as expressly set forth in Section 14.3 (Warranty Remedy), Section 16 (IP Indemnification) or Section 19 (Changes to these Terms), all amounts are non-refundable, non-cancelable, and non-creditable. You agree that we may bill your credit card or other payment method for renewals, overages, expenses, and unpaid fees, as applicable.
8.5. Delivery. We will deliver the login instructions for iX Engage Products to the designated email following the acceptance of these Terms (e.g. execution of the applicable Order Form). All deliveries under these Terms will be electronic.
8.6. Anti-Bribery & Anti-Corruption. Each party warrants to the other that it will at all times during the term of these Terms comply with all applicable anti-bribery and anti-corruption laws, such as the Foreign Corrupt Practices Act and the UK Bribery Act, or laws pertaining to trade and financial sanctions, including those adopted by the United Nations, the European Union and the United States, or any other applicable sanctions laws) and that it will not use the funds, products or services to be provided under these Terms for any activity which is prohibited under the United Nations, the European Union, the United States or any other applicable sanctions laws or make available any funds, products or services received under these Terms to any person, entity or body which is designated by the United Nations, the European Union, the United States or in any other applicable sanctions laws as the target of an asset freeze.
9. Taxes. Your fees under these Terms exclude any taxes payable in respect of the iX Engage Products in the jurisdiction where the payment is either made or received. You will pay all fees net of any applicable withholding taxes. To the extent that any taxes are payable by us, you must pay to us the amount of such taxes in addition to any fees owed under these Terms. If you have obtained an exemption from relevant taxes as of the time such taxes are levied or assessed, you may provide us with such exemption information and we will use reasonable efforts to provide you with invoicing documents designated to enable you to obtain a refund or credit from the relevant revenue authority, if such a refund or credit is available.
10. Evaluations and trials. We may offer certain iX Engage Products to you at no charge, including free accounts and trial use as defined below as part of a campaign or individually (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted during the License Term we designate in the applicable Order Form or campaign terms until terminated in accordance with these Terms. For the avoidance of doubt, License Terms for No-Charge Products shall not auto-renew or extend. Except as otherwise set forth in this Section 10, the terms and conditions of these Terms govern iX Engage Products fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta iX Engage Products, as well as any pre-release and beta features within generally available iX Engage Products, that we make available, whether for no-charge or for a fee (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain errors and bugs. We make no promises or guarantees that any Beta Versions will ever be made generally available. To the extent permitted by law, we disclaim all obligations and liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE $200 USD.
11. IP Rights in the iX Engage Products and Feedback. iX Engage Products are made available on a limited access basis, and no ownership right is conveyed to you. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology. From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate or market products or services, whether incorporating Feedback or otherwise.
12. Confidentiality. Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential information of the Disclosing party (“Confidential Information”), provided it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to iX Engage Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (i) hold in confidence and not disclose any Confidential Information to third parties and (ii) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 12. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever remedies it may have at law.
13. Term and Termination.
13.1. Effective Date and Duration. These Terms are effective as of the Effective Date and expire on the date of the expiration or termination of all License Terms.
13.2. Termination for Cause. Either party may terminate these Terms (including all related Order Forms) if the other party (i) fails to cure any material breach of these Terms within 30 days after notice; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement composition or composition or comparable proceeding, or if any such proceeding is instituted against that party and not dismissed within 60 days thereafter.
13.3. Termination for Convenience. You may choose to stop using the iX Engage Products and terminate these Terms (including all Order Forms) at any time for any reason upon written notice to us, but, upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current License Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
13.4. Effects of Termination. Upon any expiration or termination of these Terms (or applicable License Term), you must cease using the iX Engage Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable License Term), so you should make sure to request an export of Your Data from Infront X during the applicable License Term. Prior to the expiration of the License Term, we may provide you with an HTML-copy of the non-active iX Engage Product campaign to place on your website. If you terminate these Terms in accordance with Section 13.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current License Term after the effective date of termination. If we terminate these Terms in accordance with Section 13.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current License Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
13.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.1 (Third-Party Products), 8.4 (Payment), 9 (Taxes), 10 (Evaluations and trials), 11 (IP Rights in iX Engage Products and Feedback), 12 (Confidentiality), 13 (Term and Termination), 14.4 (Warranty Disclaimer), 15 (Limitation of Liability), 16 (IP Indemnification) (but solely with respect to claims arising from your use of iX Engage Products during the License Term), 18 (Dispute Resolution) and 21 (General Provisions).
14. Warranties and Disclaimer.
14.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.
14.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the iX Engage Products (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).
14.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable License Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Engage Product for the terminated portion of the applicable License Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 14.
14.4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 14, ALL IX ENGAGE PRODUCTS, SUPPORT AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE IX ENGAGE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE IX ENGAGE PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
15. Limitation of Liability.
15.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
15.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
15.3. Excluded Claims. “Excluded Claims” means (i) amounts owed by you under any Order Forms, (ii) either party’s express indemnification obligations in these Terms, and (iii) your breach of Section 3.3 (Restrictions).
15.4. Nature of Claims. The parties agree that the waivers and limitations specified in this Section 15 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
16. IP Indemnification. We will defend you against any claim brought against you by a third party alleging that iX Engage Products, when used as authorized under these Terms, infringe any third-party patent, copyright or trademark, or misappropriate any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of iX Engage Products is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of iX Engage Products in accordance with these Terms; (ii) substitute a substantially functionally similar product; or (iii) terminate your right to continue using iX Engage Products and refund any prepaid amounts for the terminated portion of the License Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your license to the iX Engage Products in the twelve (12) month period immediately preceding the Claim is less than $10,000 USD; (2) if the iX Engage Products are modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the iX Engage Products is used in combination with any non-Infront X product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of the iX Engage Products; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (z) any third-party deliverables or components contained with iX Engage Products or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 16 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY IX ENGAGE PRODUCTS OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.
17. Publicity. We may identify you as an Infront X client in our promotional materials. We will stop doing so upon your request sent to firstname.lastname@example.org.
18. Dispute Resolution.
18.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, in good faith and in recognition of their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, either party may pursue relief as may be available under these Terms pursuant to Section 18.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 18.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and code of evidence of applicable legislation and jurisdictions.
18.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the state of New York, without giving effect to the principles of conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought exclusively in Manhattan Borough, New York City, New York, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.
18.3. Remedy. Nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
18.4. Export Restrictions. You agree to comply with all applicable export and import laws and regulations in your access to, use of, and download of iX Engage Products (or any part thereof). You shall not, and shall not allow any third party to, remove or export from the United States or allow the export or re-export of any part of the iX Engage Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the iX Engage Products for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
19. Changes to these Terms.
19.1. Notice. We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 21.1 (Notice) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.
19.2. No-Charge Products. You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products.
19.3. Paid Licenses. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your License Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 8.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current License Term. If the effective date of such modifications is during your then-current License Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Order Forms upon notice to us, and we will refund you any fees you have pre-paid for use of the affected iX Engage Products for the terminated portion of the applicable License Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order Form is subject to the version of these Terms in effect at the time of the Order Form.
19.4. Policies. We may modify Our Policies to take effect during your then-current License Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current License Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
20. Changes to iX Engage Products. You acknowledge that iX Engage Products products are on-line, license-based products, and that in order to provide improved customer experience we may make changes to iX Engage Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide iX Engage Products and Professional Services under existing Order Forms, we can discontinue any iX Engage Products, any Professional Services, or any portion or feature of any iX Engage Products for any reason at any time without liability to you.
21. General Provisions.
21.1. Notice. All notices and requests required or permitted under this Agreement and any other communications contemplated in this Agreement shall be given in writing and shall be deemed given as of the date of confirmation of receipt, either by courier, registered mail, or email delivery confirmation. Notice to Infront X shall be sent to 1261 Broadway, Suite 200, New York, NY 10001, ATTN: Legal; email@example.com. We may provide notice to you through the address/email indicated in any Order Form with you, or as an in-product notification. The parties agree that any electronic communications will satisfy any applicable legal communication requirements, including that such communications be in writing.
21.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
21.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Order Forms) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
21.4. Precedence. In event of any conflict between the main body of these Terms and any provision in either Our Policies or Order Forms, the provision in Our Policies or Order Forms (to the extent applicable) will control with respect to their subject matter. In the event of any conflict between Our Policies or Order Forms, the provision in the Order Form (to the extent applicable) will control with respect to their subject matter.
21.5. Waiver. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 19 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.
21.6. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any clause or provision of these Terms or Order Forms shall be held to be invalid or unenforceable, such clause or provision shall be construed and enforceable as if it has been more narrowly drawn so as not to be invalid or unenforceable and such invalidity or unenforceability shall not affect or render invalid or unenforceable any other clause or provision of these Terms or Order Forms.
21.7. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
21.8. Entire Agreement. These Terms are the entire agreement between you and us relating to iX Engage Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to iX Engage Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document will be for administrative purposes only and will have no legal effect.
22. Definitions. Certain capitalized terms are defined in this Section 22, and others are defined contextually in these Terms.
22.1. “Administrators” means the individual(s) designated by you who administer iX Engage Products to End Users on your behalf.
22.2. “Affiliate” means any entity, which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
22.3. “Documentation” means our standard published documentation for iX Engage Products.
22.4. “End User” means any individuals who accesses or uses iX Engage Products via accounts established by you or an Affiliate of yours, or who access an online site or service owned or operated by you or an Affiliate of yours, in which iX Engage Products is embedded. Without limiting the foregoing, an End User may include your employees, customers, or agents.
22.5. “iX Engage Products” means our hosted or cloud-based solutions, including BracketPro, PollPro and MVP Vote.
22.6. “Feedback” means comments, questions, ideas, suggestions or other feedback relating to iX Engage Products, Support or Professional Services.
22.7. “Laws” means all applicable local, state, federal, and international laws, regulations and conventions, including those relating to data privacy and data transfer, international communications and the exportation of technical or personal data.
22.8. “License Term” means your permitted license period for a iX Engage Products product, as set forth in the applicable Order Form or campaign.
22.9. “Order Form” means order forms and statements of work describing the products and services you are ordering from us. As applicable, the Order Form will identify: (i) iX Engage Products products, (ii) License Term, (iii) domain(s) associated with your use of iX Engage Products, (iv) storage, capacity or other limits on scope of use, (v) the amount or rate you will be charged (if any), the invoicing, renewal terms, applicable currency and form of payment. Order Forms may also include Professional Services and No-Charge Products.
22.10. “Our Deliverables” means any materials, deliverables, designs, modifications, derivative works or development that we provide in connection with any Professional Services.
22.12. “Our Technology” means iX Engage Products, including all No-Charge Products, Our Deliverables, their “look and feel” , any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
22.13. “Professional Services” means any design, development, or other services related to iX Engage Products we provide to you, as identified in an Order Form. For the avoidance of doubt, Professional Services do not include the standard level of support included in your license.
22.14. “Sensitive Data” means any (i) special categories of personal data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) patient, medical or other protected health information regulated by Health Insurance Portability and Accountability Act, as amended and supplemented; (iii) credit, debit or other payment card data subject to Payment Card Industry Data Security Standards (PCI DSS); (iv) other personal information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.
22.15. “Support” means support for iX Engage Products, as further described in the Support Policy, specified in the applicable Order Form.
22.16. “Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to iX Engage Products. In this context, “submit” includes submitting, uploading, transmitting, or otherwise making available Your Data to or through iX Engage Products.
22.17. “Your Materials” means your materials, systems, personnel or other resources.