Terms and Conditions
These Terms and Conditions are by and between INFORM Institut fuer Operations Research und Management GmbH ("INFORM") and the Customer. INFORM and Customer may be referred to herein collectively as the "Parties" or individually as a "Party." Any additional or different terms or conditions, or warranties, whether in another communication, understanding, or agreement, that in any way purport to modify these Terms and Conditions are expressly objected to and rejected and will not be binding on INFORM; neither INFORM's lack of objection to any terms, nor the access to the Services, will constitute an agreement by INFORM to any such additional or different terms. Customer is hereby notified of INFORM's express rejection of any terms inconsistent with these Terms and Conditions or to any other terms proposed by Customer. Customer's submission of a registration form hosted by INFORM for the Services (the "Registration Form"), use of the Services or other indication of acceptance of these Terms and Conditions will be deemed conclusive evidence of, and constitutes Customer's acceptance of and assent to these Terms and Conditions.
BY SUBMITTING A REGISTRATION FORM FOR THE SERVICES, USING THE SERVICES OR OTHERWISE INDICATING ACCEPTANCE OF THESE TERMS AND CONDITIONS, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS. THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF CUSTOMER REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO CONTRACTUALLY BIND CUSTOMER.
1. Definitions.
1.1 "Agreement" means, collectively, these Terms and Conditions, the DPA and the Registration Form.
1.2 "Aggregated Statistics" means data or information provided by or related to Customer's use of the Services that has been aggregated and anonymized.
1.3 "Authorized User" means Customer's employees, (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
1.4 "Customer" means the company as identified in the Registration Form.
1.5 "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
1.6 "DPA" means INFORM's standard form of data processing agreement as in effect from time to time, a copy of which is available at https://www.inform-software.com/en/software/ymslite/dpa-us .
1.7 "INFORM IP" means the Services and software, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, INFORM IP includes any information, data, or other content derived from INFORM's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
1.8 "Services" means the "YMSlite" solution as made available by INFORM from time to time.
2. Access and Use.
2.1 Subject to the terms and conditions of this Agreement, INFORM hereby grants Customer a non-exclusive, non-sublicensable, non-transferable right to access and use the Services through the internet, solely for use by Authorized Users for Customer's internal use in accordance with the terms and conditions herein. The Services are subject to modification from time to time at INFORM's sole discretion.
2.2 Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (a) copy, modify, or create derivative works of the Services, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or any ideas or algorithms of the Services or any software, documentation or data related to the Services; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software related to the Services, in whole or in part; (d) offer the Services on a timesharing, service bureau or similar basis; or (e) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. INFORM reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the INFORM IP.
2.3 INFORM may, without liability, suspend Customer's and any Authorized User's access to any portion or all of the Services if: (a) INFORM reasonably determines that (i) there is a threat or attack on any of the INFORM IP; (ii) Customer's or any Authorized User's use of the INFORM IP disrupts or poses a security risk to the INFORM IP or to any customer or vendor of INFORM; (iii) Customer, or any Authorized User, is using the INFORM IP for fraudulent or illegal activities; or (iv) INFORM's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (b) any vendor of INFORM has suspended or terminated INFORM's access to or use of any third-party services or products required to enable Customer to access the Services; (c) INFORM will undergo scheduled or emergency maintenance; or (d) in the event the Customer is in breach of this Agreement, including failure to pay any amount due to INFORM.
3. Customer Responsibilities.
3.1 Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
3.2 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer's knowledge or consent.
3.3 Customer hereby agrees to indemnify and hold harmless INFORM against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of Services. Although INFORM has no obligation to monitor the content provided by Customer or Customer's use of the Services, INFORM may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.4 Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties ("Third Party Services"). INFORM is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. INFORM does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party's terms and conditions.
4. Confidential Information.
4.1 Either Party may disclose or make available to the other Party information about its technology or business, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and reasonably cooperated with the other party's efforts, if any, to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. Each Party's obligations of non-disclosure with regard to Confidential Information are effective and will expire three years after the cancellation or termination of the Customer's access to the Services; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the cancellation or termination of this Agreement for the longer of: (x) three years after the cancellation or termination of the Customer's access to the Services or (y) as long as such Confidential Information remains subject to trade secret protection under applicable law.
4.2 Customer acknowledges that INFORM does not wish to receive any Confidential Information from Customer that is not necessary for INFORM to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, INFORM may reasonably presume that any unrelated information received from Customer is not Confidential Information.
5. Intellectual Property Ownership.
5.1 Customer acknowledges that, as between Customer and INFORM, INFORM owns all right, title, and interest, including all intellectual property rights, in and to the INFORM IP. INFORM acknowledges that, as between INFORM and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to INFORM a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for INFORM to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
5.2 If Customer or any of its employees or contractors sends or transmits any communications or materials to INFORM suggesting or recommending changes to the INFORM IP, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), INFORM is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to INFORM on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and INFORM is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although INFORM is not required to use any Feedback.
5.3 Customer hereby grants to INFORM a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Customer's name and logo solely for the purpose of INFORM's customer list and marketing materials, in accordance Customer's reasonable brand guidelines. Customer may revoke this license at any time upon written notice to INFORM, in which case INFORM will cease new uses of Customer's name and logo within a reasonable time, provided that INFORM shall not be required to remove or destroy existing materials.
6. Warranty Disclaimer. THE SERVICES AND THE INFORM IP IS PROVIDED "AS IS" AND INFORM HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EACH INFORM PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. INFORM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR THE INFORM IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE, AND CUSTOMER ACKNOWLEDGES THAT IT IS NOT TECHNICALLY PRACTICABLE FOR INFORM TO DO SO.
7. Limitations of Liability. IN NO EVENT WILL INFORM BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) DELAY OR INABILITY TO USE THE SERVICES; OR (f) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER INFORM WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL INFORM'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO INFORM UNDER THIS AGREEMENT IN THE ONE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
8. Payments and Termination.
8.1 The Services will be offered to Customer on a month to month basis. Customer will be offered a trial of the Services for a period of 15 days. If the Customer does not cancel or otherwise terminate the Services during the period of the trial, the Customer's trial will be automatically transitioned into a month to month paid subscription for the Services.
8.2 Except as otherwise noted herein, paid subscriptions for the Services will continue indefinitely until cancelled. Customer will be billed on a recurring basis on the first day of each billing period and the Customer will pay the then-current subscription fee. The subscription fee for the month in which the trial period ends will be pro-rated from the day following the end of the trial period until the end of that month. The billing period for the Services otherwise begins on the first day of each month.
8.3 Either Party may terminate this Agreement on written notice to the other Party at any time; provided, that if such notice is received: (a) before the 15th of a calendar month, such termination will be effective as of the end of such month or (b) on or after the 15th of a calendar month, such termination will be effective as of the end of the month immediately following the month in which such notice was received. Unless otherwise required by law, INFORM will not provide refunds or credits for any partial subscription periods.
8.4 In addition to any other express termination right set forth in this Agreement: (a) INFORM may terminate this Agreement, effective on written notice to Customer, if Customer breaches any of its obligations under Section 2.1, 2.2 or 4; (b) INFORM may suspend Customer's and its Authorized User's access to the Services or delete the Customer's account if Customer fails to make any payment when due; (c) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (i) is incapable of cure or (ii) being capable of cure, remains uncured 20
days after the non-breaching Party provides the breaching Party with written notice of such breach; (d) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
8.5 All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, excise, value added, withholding and other taxes, and any other duties or charges imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder.
8.6 Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the INFORM IP and Customer shall delete, destroy, or return all copies of the INFORM IP and certify in writing to INFORM that the INFORM IP has been deleted or destroyed. No expiration or termination of this Agreement will affect any obligation arising prior thereto. Section 1, 4, 5, 6, 7, 8.6, 10 and any other provision the performance or effectiveness of which naturally survives will survive termination or expiration of this Agreement.
9. U.S. Government Matters.
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively "Controlled Subject Matter"), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by INFORM are "commercial items" and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
10. Miscellaneous.
10.1 This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof. Customer acknowledges and agrees that: (a) it has reviewed and understands the DPA and (b) the terms of the DPA are incorporated herein by reference and apply to this Agreement and the Parties' relationship thereunder.
10.2 If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
10.3 This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois. Any controversy or claim arising out of or relating to this Agreement will be determined by final, binding arbitration before one neutral arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of the arbitration will be Chicago, Illinois and the language of the arbitration will be English. Judgment on any arbitration award may be entered in any court of competent jurisdiction, and the parties intend that any arbitration award will be enforceable in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. All fees and expenses of the arbitration will be borne by the parties equally. However, each party will bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proof. Neither party nor the arbitrator may disclose the existence, content or results of any such arbitration without the prior written consent of both parties. This arbitration provision will survive if this Agreement should be adjudged null and void or should be canceled or terminated for any reason.
10.4 Upon the expiration or termination of the Agreement, INFORM shall upon Customer’s request make Customer Data available to Customer for export in a commercially reasonable format for 30 days. After that period, INFORM shall delete Customer Data from its active systems within 30 days and from backups pursuant to INFORM's standard retention policies, unless applicable law requires longer retention. INFORM has no obligation to retain Customer Data after the 30-day export period.
10.5 INFORM may modify the subscription fee for the Services and/or the terms of this Agreement at any time by providing prior written notice thereof to Customer; provided, that any such modifications will take effect as of: (a) the end of the then-current calendar month if such notice was provided before the 15th of such calendar month or (b) the end of the month immediately following the then-current calendar month if such notice was provided on or after the 15th of the then-current calendar month.
10.6 All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") will be written in English and, for (a) Notices sent to INFORM, addressed to INFORM Institut fuer Operations Research und Management GmbH, Pascalstraße 35, 52076 Aachen, Germany or email at ysmlite@inform-software.com and (b) Notices sent to Customer, addressed to the address provided by Customer when Customer registered for the Services, in each case as such address may be updated from time to time by the receiving Party in writing. All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), certified or registered mail (in each case, return receipt requested, postage prepaid) or via email. Except as otherwise provided in these Terms, a Notice is effective only (x) upon receipt of the receiving party, and (y) if the party giving the Notice has complied with the requirements of this Section 10.6.
10.7 Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of INFORM. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
10.8 Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 2.1, 2.2 or 4 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
10.9 The Parties hereto jointly participated in the negotiation and drafting of this Agreement and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Pronouns in masculine, feminine or neuter genders will be construed to state and include any other gender. Whenever the words "include," "includes" or "including" are used in this Agreement, they will be deemed to be followed by the words "without limitation."
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