Inbox Insight Inc.
TERMS OF SERVICE, 2020 Edition
Inbox Insight Inc.
These Terms of Service (these “Terms”) govern each Campaign Booking Form incorporating these Terms by reference (each, a “Booking Form”) signed by Inbox Insight, Inc. (“Inbox Insight”), a Delaware corporation having its principal place of business at 1661 Worcester Road, Suite 207, Framingham, MA 01701, and the client identified by the Booking Form (“Client”). These Terms sometimes refer to Inbox Insight and Client individually as a “Party” and collectively as the “Parties.” Capitalized terms not otherwise defined by these Terms have the meanings supplied by the Booking Form.
In these Terms:
1.1. “Affiliate” with respect to a Party, means an entity controlling, controlled by or under common control with the Party.
1.2. “Agreement” means a Booking Form together with these Terms.
1.3. “Business Day” means a day other than a day which is a Saturday, Sunday or a public holiday in state or country of Client’s formation.
1.4. “Database” means the database comprising details of individuals that Inbox Insight has assembled for use in providing demand generation services to Client and other clients.
1.5. “Deliverables” means all documents and materials (including artwork and copy) that Inbox Insight agrees to provide to Client as part of the Services, in each case that the Booking Form expressly identifies as a “Deliverable.”
1.6. “Fees” means Inbox Insight’s fees for the Services as indicated in Section 4 and the Booking Form.
1.7. “Flight Date” means a Flight Date specified by the Booking Form.
1.8. “Intellectual Property Rights” means patents, registered and unregistered trademarks, registered and unregistered designs, applications for any of the foregoing and the right to apply for any of the foregoing in any part of the world, Confidential Information, business names, brand names, copyright and rights in the nature of copyright and get up, know how, domain names, inventions, service marks, and database rights and similar rights wherever situated in the world.
1.9. “Material for Publication” means any work of authorship, image, drawing, map, diagram, sound recording or other material supplied by Client for Inbox Insight’s distribution or display to Subscribers in the course of performing the Services.
1.10. “Proposal” means the email or letter from Inbox Insight (if any) offering to undertake Services and describing itself as a “proposal”, and which email or letter does not form part of the Agreement between the Parties.
1.11. “Section” means a section of these Terms unless the context requires otherwise.
1.12. “Services” means the services and materials to be provided by Inbox Insight under the Booking Form and any such further services as Inbox Insight agrees to provide to Client.
1.13. “Subscriber” means an individual on the Database.
1.14. “Third Party” means a company, person, partnership, authority or other undertaking other than a Party or a Party’s Affiliate.
1.15. “Unsuitable,” with respect to any material, means material that: (a) is obscene, hateful, profane, defamatory, which contains racist terminology or images of pornography or which is intended to annoy, threaten, harass or intimidate another person; (b) may be harmful to children; (c) contains discriminatory remarks; (d) infringes, misappropriates, dilutes or otherwise abuses a Third Party’s Intellectual Property Right; (e) violates the privacy rights of any Third Party; or (f) is otherwise antisocial in nature, tortious or unlawful, and “Suitable” and “Suitability” will be construed accordingly.
2. SERVICES; RELATED PROVISIONS
2.1. Services. Inbox Insight, subject to these Terms, will perform the Services specified by the Booking Form for the internal business purposes of Client. Inbox Insight will make commercially reasonable efforts to complete the Services on the schedule set forth in the Booking Form but, except as expressly provided by the Booking Form, all dates or time schedules set forth in the Booking Form sets for the performance of Services, and any projection of the number of hours or day required to perform the Services set forth in the Booking Form, are estimates only.
2.2. Booking Forms. The Booking Form becomes binding on the Parties only when executed by both Parties. Each Booking Form constitutes a separate agreement between the Parties. Nothing in these Terms or any Agreement will be interpreted as requiring either of the Parties to enter into any future Booking Form.
2.3. Changes. Either Party may request a change to the scope or manner of performance of the Services. Inbox Insight has no obligation to perform any changed or additional services unless and until the Parties have agreed (in writing or by email) to the changed or additional Services and, as applicable, adjustment of the Fees and any amendment of other relevant provisions of these Terms in accordance with Section 11.5 to take account of the change. Notwithstanding the previous sentence and of Section 11.5 below, where Inbox Insight does undertake any changes at the written or verbal request of Client, Client will be liable to pay for that variation in accordance with Inbox Insight’s standard charges for time, materials and services from time to time prevailing.
2.4. Restrictions. Client will in no event: (a) resell any of the Services to, or engage Inbox Insight to provide Services for the benefit of, any Third Party, except that if Client is an advertising agency Client may contract for the Services for the benefit of the Client customer identified on the Booking Form; (b) access, recreate or use the Database in whole or part, or attempt to do any of the foregoing, including from the Subscriber responses Client receives as a result of the Services; or (c) provide to Inbox Insight for distribution or display any Material for Publication that is Unsuitable. Without limiting Client’s obligations under subsection (c), Inbox Insight will in its absolute discretion be entitled to restrict the publication of any Material for Publication which it deems Unsuitable.
3. CLIENT’S OBLIGATIONS
3.1. Materials for Publication; Additional Materials. Client, at least three (3) Business Days before each Flight Date, will provide to Inbox Insight, in an electronic format reasonably acceptable to Inbox Insight, the applicable Materials for Publication and such additional materials, data and information as Inbox Insight may reasonably require to perform the Services (the “Additional Materials”). Client, as between Client and Inbox Insight, is solely responsible for: (a) the compliance of Materials for Publication with applicable law; (b) the Suitability, accuracy, completeness, legibility, clarity and appropriateness of the Materials for Publication and Additional Materials. Inbox Insight may charge additional Fees to address Client’s failure to meet its obligations under this Section 3.1.
3.2. Consents. Client will be responsible for obtaining and maintaining all necessary licenses and consents as may be required for Client’s use of the Services, unless and to the extent (if any) Inbox Insight has indicated to the contrary in the Booking Form. This obligation will not apply to data protection legislation as it applies to the Database and its use.
3.3. Returned Email. Client will promptly inform Inbox Insight if it receives from the email system of any Subscriber a notice that a message sent by Inbox Insight is undeliverable for any reason.
3.4. Agency Arrangements. Where Client signs a Booking Form as agent for a Third Party principal, Client: (a) is Inbox Insight’s client for all purposes under this Agreement, including the obligation to pay Inbox Insight’s invoices; and (b) is responsible for ensuring the principal’s compliance with this Agreement.
3.5. Inspection of Deliverables. Client will promptly inspect any Deliverables or other materials Inbox Insight supplies to Client in connection with this Agreement and will raise any queries or objections to the Deliverables or materials within three (3) Business Days of receipt. Client’s failure to accept or reject a Deliverable or other materials within the three-day period will be deemed Client’s acceptance and authorization for Inbox Insight to use the same in performing the Services.
4. FINANCIAL TERMS
4.1. Invoices. Inbox Insight, except as provided by the Booking Form, may invoice Client for the fees contemplated by the Booking Form (the “Fees”) on the commencement of Services.
4.2. Payment. Client will pay Inbox Insight’s invoice, without deduction or set-off, on the date specified by the Booking Form or, if the Booking Form does not specify a date, within thirty (30) calendar days following the date of Inbox Insight’s invoice. For the avoidance of doubt, Client’s payment obligation is not contingent on Client’s receipt of payment from any Client customer or other Third Party.
4.3. Taxes. The Fees set forth on the Booking Form do not include sales, use, property, value-added, or other federal, state or local taxes based on the Services provided under this Agreement (excluding taxes based on Inbox Insight’s net income), all of which will be the responsibility of Client to the extent they apply. Client, if it claims exemption from any such taxes, will provide Inbox Insight with a valid tax exemption certificate.
4.4. Late Payment. Any late payment by Client under this section will be subject to Inbox Insight’s costs of collection (including reasonable legal fees and costs) and will bear a late fee 1½% for each month or partial month the amount remains unpaid or, if less, the maximum late fee permitted by law. In addition, Inbox Insight may suspend performance of the Services until Client pays all monies due; and require payment in full in advance for all other monies due under the Agreement before performing the remainder of the Services.
4.5. Disputes. Notwithstanding any other provision of this Agreement, Client may withhold payment of amounts it disputes in good faith, and Client’s payment will not be deemed late, provided that Client: (a) on or before the payment due date provides Inbox Insight notice specifying in reasonable detail the basis for the dispute; (b) timely pays all undisputed amounts; and (c) cooperates with Inbox Insight’s good faith efforts to resolve the dispute.
5. WARRANTIES; LIMITATION OF LIABILITY
5.1. Warranties. Inbox Insight represents and warrants that (a) Inbox Insight will perform the Services in a professional and workmanlike manner, and (b) the Services will conform in all material respects to their documentation. EXCEPT AS EXPRESSLY PROVIDED BY THIS SECTION 5.1, INBOX INSIGHT MAKES NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR DELIVERABLES, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, AND DISCLAIMS ANY LIABILITY IN CONNECTION WITH ANY SUCH WARRANTIES, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTY OF NON-INFRINGEMENT, OR ANY WARRANTY EXPRESS OR IMPLIED THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED, OR THAT THE SERVICE WILL GENERATE A PARTICULAR NUMBER OR PERCENTAGE OF RESPONSES, OR THAT CLIENT WILL ACHIEVE ANY PARTICULAR RESULT FROM THIS AGREEMENT OR THE SERVICES.
5.2. Limitation of Liability. NEITHER PARTY NOR ANY OF ITS MEMBERS, STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR SPECIAL DAMAGES OF ANY NATURE ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, WHETHER IN TORT OR CONTRACT, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, INCLUDING BUT NOT LIMITED TO DAMAGES FROM INTERRUPTION OF BUSINESS, LOSS OF INCOME OR OPPORTUNITIES, LOSS OF USE OF SERVICE, LOSS OF DATA, COST OF RECREATING DATA OR COST OF CAPITAL. IN NO EVENT WILL EITHER PARTY OR ANY OF ITS MEMBERS, STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF THE FEES PAID BY OR PAYABLE BY THE CLIENT UNDER THE CONTRACT. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO (a) THE CLIENT’S PAYMENT OBLIGATIONS UNDER THE CONTRACT; (b) EITHER PARTY’S OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION; OR (c) THE EXTENT PROHIBITED BY APPLICABLE LAW.
5.3. Insurance. Inbox Insight, at its own cost and expense, will obtain and maintain in full force and effect during the Term, to the extent required by applicable laws, the following minimum insurance requirements as set forth below. Such insurance will be with a financially sound and reputable insurance company or companies each of whom is rated A- or better by A.M. Best Co. (or its equivalent). Within thirty (30) days of receiving a written request from Client, Inbox Insight will provide Client with a certificate of insurance evidencing such coverage.
|Workers’ Compensation||As required by law|
|Integrated Liability and Indemnity||US $1,000,000 aggregate|
|Errors and Omissions||US $1,000,000 aggregate|
|Destructive Programming||US $1,000,000 aggregate|
|Cyber||US $1,000,000 aggregate|
|Intellectual Property||US $1,000,000 aggregate|
(a) Client will indemnify, defend and hold harmless Inbox Insight and any of its officers, directors, managers, employees, agents and other advisors and representatives, and successors and assigns against all Third Party claims, demands, suits and proceedings (each, a “Claim”), and all damages, obligations, losses, liabilities, costs and expenses (including reasonable attorneys’ fees, costs of collection, and other costs of defense) (collectively, “Losses”), arising from or relating to an allegation: (i) that the Materials for Publication infringe the Intellectual Property Rights of the Third Party or are not Suitable; (ii) that the Materials for Publication are Unsuitable, fraudulent or misleading; or (iii) arising from or relating to any contract, agreement, arrangement or relationship between Client and any Subscriber as a direct or indirect result of the Services.
(b) Subject to the preceding sentence, Inbox Insight will indemnify, defend and hold harmless Client and any of its officers, directors, managers, employees, agents and other advisors and representatives, and successors and assigns against all Third Party Claims and Losses arising from an allegation that the Services infringe the Intellectual Property Rights of the Third Party.
(c) Each Party’s indemnity obligation is conditioned on the indemnified Parties’ providing the indemnifying Party with: (i) prompt notice of the Claim; (ii) sole control over the defense and settlement of the Claim; and (iii) at the indemnifying Party’s request and expense, reasonable cooperation in the defense and settlement of the Claim.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. Deliverables. Subject to the remainder of this Section 7, all Deliverables will be deemed “works made for hire” for the purposes of U.S. Copyright Act, 17 U.S.C. §101 et seq., as amended. If any right, title or interest in and to the copyright in any Deliverable does not automatically vest in Client, Inbox Insight on receipt of full payment under the Booking Form irrevocably assign, convey, and otherwise transfer to Client, and Client’s successors and assigns, all such right, title and interest in and to the copyright in Deliverables with no requirement of further consideration from or action by Inbox Insight or Client. Inbox Insight, at Client’s reasonable request and expense, will execute and deliver all documents reasonably requested by Client to effectuate the intent of this Section 7.1.
7.2. Client’s License Grant. Client grants Inbox Insight a limited, nonexclusive, nontransferable, fully paid up and royalty-free license to use Material for Publication and Additional Materials, and any copy, content, trademark, service mark logo and supporting materials, in each case solely as reasonably required to perform the Services and as Client otherwise may authorize in advance in writing, and for no other purposes.
7.3. Reserved Materials. Notwithstanding any other provision of this Agreement, Inbox Insight (as between Inbox Insight and Client ) will have exclusive title and ownership rights, including all Intellectual Property Rights throughout the world, in the Booking Form and Database, and any Proposal software, appliances, methodologies, code, templates, tools, policies, records, working papers, know how, and data (excluding any Client Confidential Information): (i) owned or possessed by Inbox Insight prior to the execution of the Booking Form; (ii) developed by Inbox Insight independently of its work under this Agreement; (iii) developed in the performance of this Agreement and not comprising a Deliverable; or (iv) prepared, developed, conceived, or delivered as part of or in connection with a product or service comprising a standard Inbox Insight commercial offering (collectively, “Reserved Materials”), without regard to whether they were specifically adapted by Inbox Insight in providing the Inbox Insight Services; provided, however, that Reserved Materials are prepared, developed, conceived, created or invented without the benefit of Client Confidential Information and will not include and may not reference, incorporate or refer to Client Confidential Information or information that identifies Client.
8.1. “Confidential Information” means all tangible and intangible confidential and proprietary information and trade secrets (whether or not patentable or copyrightable), owned or possessed by one Party (the “Disclosing Party”) and disclosed before or during the term of this Agreement to the other Party (the “Receiving Party”) or to which the Receiving Party gains or has gained access in connection with this Agreement, including the Disclosing Party’s and its Affiliates’ business/customer information, business practices, data processes, computer or software products or programs and all related documentation, cost and pricing data, know-how, marketing or business plans, analytical methods and procedures, hardware design, technology, financial information, patient information or personnel or end user data.
8.2. Exclusions. The obligations to preserve the confidential nature of any of the Confidential Information will not apply to information that (a) was previously known to the Receiving Party free of any obligation to keep it confidential; (b) is or becomes generally known to the public or is obtainable from public sources other than because of an act or omission of the Receiving Party; or (c) the Receiving Party can document was independently developed by or on behalf of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
(a) The Receiving Party will (a) hold the Disclosing Party’s Confidential Information in strict confidence, and apply at least the standard of care used by the Receiving Party in protecting its own similar Confidential Information, and not to disclose the Disclosing Party’s Confidential Information to any Third Party, and
(b) not use any Confidential Information of the Disclosing Party other than to accomplish the purposes of this Agreement.
(b) The Receiving Party will limit disclosure of the Disclosing Party’s Confidential Information to those employees and advisors who need to know it to accomplish the purposes of this Agreement, and who are bound by a written agreement or other legal obligation not to disclose the Disclosing Party’s Confidential Information or use it in any manner other than in furtherance of this Agreement.
(c) Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information as required by the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the Receiving Party, unless prohibited by law, will provide the Disclosing Party sufficient notice to allow the Disclosing Party to seek a protective order or similar relief. The Receiving Party will limit disclosure under this Section 8.3(c) to the portion of the Disclosing Party’s Confidential Information it reasonably believes it is required to disclose.
9. DATA PROTECTION
9.2. Client will comply with all applicable data protection laws. Without limitation, Client will seek the appropriate justification for processing the data of Subscribers who respond to the Material for Publication. Where Client is an agent working for a Third Party principal, Client will in addition procure that the Third Party principal will (i) comply with all applicable data protection laws and (ii) obtain the appropriate justification for processing the data of Subscribers who respond to the Material for Publication.
10. SUSPENSION AND TERMINATION
10.1. Termination. Either Party may terminate the Booking Form by written notice if the other Party commits a material breach of this Agreement and fails to cure the breach within ten (10) calendar days (in cases of nonpayment) or thirty (30) calendar days (in the case of any other breach) after receiving written notice of such breach.
10.2. Subscription Suspension. In addition to any other rights granted to Inbox Insight or available at law or in equity, Inbox Insight may suspend the Services and other services by written notice to Client if Client (a) has not paid Fees when payment is due, or (b) has breached Section 2.4.
10.3. Effect of Termination. On termination or expiration of the Booking Form: (a) Client will immediately stop using the Services; and (b) all Fees owed to Inbox Insight under the Booking Form will immediately become due. Sections 5, 6, 7, 8, 9 and 11 will survive the expiration or termination of the Booking Form for any reason, and neither the expiration nor termination of the Booking Form will excuse either Party from payment or other obligations accruing before the effective date of expiration or termination. Except as provided by the preceding sentence, these Terms will be of no further force or effect when all Booking Forms have expired or been terminated.
11.1. No Other Beneficiaries. This Agreement is being made and entered into solely for the benefit of the Parties, and neither Party intends by this Agreement to create any rights in favor of any other person as a third party beneficiary of this Agreement or otherwise.
11.2. Force Majeure. A Party will not be in breach of the Agreement, nor liable for any failure or delay in performance of any obligations under the Agreement, to the extent that the same arises from an event beyond the reasonable control of the Party claiming the benefit of this Section (or its sub-contractors) including any act of God, war, riot, civil commotion, compliance with a law or governmental order, rule, regulation or direction, fire, flood, storm, strike or other industrial action (including a strike or other industrial action by the employees of the Party claiming the benefit of this Section), utility company, internet service provider, local authority or like body to provide services, any failure, shortage or significant price increase of power, fuel, raw material or transport (each, a “Force Majeure Event”). The Party claiming the benefit of this Section 11.2 will notify the other Party of the Force Majeure Event as soon as reasonably practicable of the Force Majeure Event; and use and continue to use its reasonable efforts to mitigate the effects of the Force Majeure Event.
11.3. Entire Agreement; Conflicts. These Terms and the Booking Form constitute the entire agreement between the Parties with respect to its subject matter and supersede any previous Proposal arrangement, understanding or agreement between them relating to the subject matter of these Terms or the Booking Form. To the extent of any conflict between the Booking Form and these Terms, the Booking Form will prevail. Any purchase order, acknowledgment form or other business form supplied by either Party is solely for the convenience of the issuing Party and will not modify or supplement this Agreement.
11.4. Interpretation. In these Terms: (a) the headings are for convenience only and will not affect the interpretation of these Terms; (b) the use of the plural will include the singular and the use of the singular will include the plural; (c) the word “including” will be construed as followed by “without limitation”; (d) where the context permits, the words “other” and “otherwise” are illustrative and will not limit the sense of the words preceding them; (e) references to the masculine, feminine or neuter genders will include each and every gender; and (f) references to any statutory provision include a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.
11.5. Amendment. Amendments to these Terms as they apply to any Booking Form previously adopted by the Parties must be made in a written document signed by both Parties. Inbox Insight may amend these Terms at any time by posting the amended Terms at www.inboxinsight.com, and the amended Terms will apply to any Booking Form the Parties execute after the adoption date of the amended Terms.
11.6. Waiver. Except to the extent Inbox Insight grants Client a waiver in a signed writing, the failure of Inbox Insight at any time to enforce a provision of the Agreement will not be deemed a waiver of such provision or of any other provision of this Agreement or of Inbox Insight’s right thereafter to enforce that or any other provision of this Agreement.
11.7. Severability. If any provision of this Agreement or its application to any person or circumstances will to any extent be invalid or unenforceable: (a) the remainder of this Agreement, or the application thereof to any person or circumstances other than those as to which it is invalid or unenforceable, will not be affected, and each provision of this Agreement will be valid and enforced to the fullest extent of the law; and (b) the Parties will in good faith amend and if necessary novate this Agreement to reflect as near as may be the spirit and intention behind such unenforceable provision or provisions so that the same comply with the laws of that jurisdiction.
11.8. Assignment. Neither Party may assign any of its rights under this Agreement without the other Party’s prior written consent, provided, that no consent will be required for Inbox Insight to assign this Agreement in whole (but not in part) to an Affiliate or in connection with a sale of substantially all of its outstanding equity or substantially all of its assets to which this Agreement relates. Any attempted assignment without the required consent is void.
11.9. Relationship of Parties. The Parties are and will act as independent contractors. Nothing in this Agreement may be construed or implied to create an agency, association, partnership or joint venture. At no time will either Party make any commitments or incur any charge or expense for or in the name of the other.
11.10. Notices. All notices, demands and other communications regarding this Agreement will be in writing, and will be deemed properly given if sent: (i) by hand delivery; (ii) by reputable next business day courier; or (iii) by registered or certified U.S. mail, return receipt requested, postage prepaid, to the address set forth below or such other address as the Party designates by notice to the other Party and will be deemed given upon receipt or refusal of delivery. The address for notices for each Party is as set out in these Terms or as may be notified by a Party from time to time.
11.11. Limitation on Claims. Client may not bring any claim or action against Inbox Insight arising out of or related to acts and/or omissions relating to this Agreement, regardless of the form, more than two (2) years after the occurrence of such acts or omissions giving rise to the claim.
11.12. Choice of Law; Venue. This Contract will be governed by and interpreted under the laws of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods (UNCCISG) will not apply to this Contract. All disputes related to this Contract will be submitted to the state or federal courts in the State of Massachusetts, and each Party consents to the jurisdiction of such courts and waives any objection it may have regarding venue.
11.13. Counterparts; Electronic Signatures and Electronic Transmittal. The Booking Form: (a) may be executed in two or more counterparts, each of which is deemed an original, but all of which together will constitute one and the same instrument; and (b) may be executed by electronic signature. Either Party may also sign by hand and transmit its signed counterpart in its entirety to the other Party by electronic mail.