IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (A) IDENTIFIED ON AN ORDER FORM WHICH REFERENCES THESE TERMS [OR (B) WHO ARE USING THE SERVICES ON A TRIAL BASIS] (“CUSTOMER”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CUSTOMER TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” WILL REFER TO SUCH CUSTOMER. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT USE THE SERVICES.
IF YOU ARE A CUSTOMER, OR ACTING ON BEHALF OF A CUSTOMER, WHO HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT (OTHER THAN AN ORDER FORM) WITH INSTAPLY, YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE GOVERNED BY SUCH SEPARATE WRITTEN AGREEMENT AND NOT BY THESE TERMS.
These Terms were last updated on January 6th, 2017. They are as of the date of your acceptance of these Terms. Capitalized terms used in these Terms and not otherwise defined will have the meanings set forth in the applicable Order Form.
Instaply may modify these Terms at any time, in its sole discretion. If Instaply does so, it will let you know either by posting the modified Terms on Instaply’s Web and Mobile Applications or through other communications. It’s important that you review the Terms whenever Instaply modifies them because if you continue to use the Services thereafter, you agree to be bound by the modified Terms. If you do not agree to be bound by the modified Terms, then you cannot use the Services anymore.
You will see that there are defined terms in these Terms. We need to include these defined terms so that we are on the same page. We have placed these terms in context in the Term where appropriate; below are also some additional terms defined in these Terms.
1.1.”Consumer” means an individual who uses the Services to communicate with a Customer or a Customer’s Authorized User.
1.2. “Authorized User” means a unique employee or contractor of Customer who has been personally authorized by Customer to access and use the Services for purposes of communicating with Consumers (either as a Call Center User or a Store Rep User), reviewing Consumer communications with Customer or communicating with other Authorized Users or Vendors.
1.3. “Call Center User” means an employee or contractor of Customer who has been authorized by Customer to access and use the Services to communicate with Consumers by using the Services in Customer’s call center which provides customer service to Consumers by telephone.
1.4. “Customer App” means a mobile application owned and/or operated by or for Customer which offers Instaply enabled communications through Customer’s use of the Services.
1.5. “Instaply Software” means the Instaply proprietary software provided by Instaply to Customer or to which Customer has access under these Terms.
1.6. “Instaply Web and Mobile Applications” means the interface that gives the Customer and Consumers access to Instaply Software through web browsers, and iOS and Android smartphones.
1.7. “Order Form” means an order form executed by Instaply and Customer from time to time pursuant to these Terms and Conditions, each of which will (i) reference these Terms and Conditions, (ii) specify the products or services to be provided or licensed hereunder, and (iii) include such payment and other terms as to which the parties may agree.
1.8. “Services” means the business communication platform and related services made available by Instaply to Customer and its Authorized Users that are ordered by Customer under an Order Form, including updates thereto from time to time. Services include the Instaply website available at www.instaply.com (the “Instaply Site”) and the Instaply Web and Mobile Applications. The Services are accessible for Customer and its Authorized Users on the Instaply Web and Mobile Applications. The Services are also accessible and integrated for the Consumers on the Customer Site, the Customer App and the Customer Interactive Voice Response system.
1.9. “Store Rep User” means an employee or contractor of Customer who has been authorized by Customer to access and use the Services to communicate with Consumers in the Customer’s physical retail store locations.
1.10. “Vendors” means third parties other than Consumers and Authorized Users who use the Services to communicate with Customer and Consumers.
2 INSTAPLY SERVICES TO CUSTOMER
2.1. SaaS Services and Software License to Customer. Subject to Customer’s compliance with these Terms, (a) Instaply will provide the Services for Customer, and (b) Instaply grants to Customer a non-exclusive, non-transferable, limited license, to use the Instaply Software made available to Customer through the Instaply Web and Mobile Applications, and also provided to Customer to integrate the Instaply Software into the Customer App, the Customer’s website that leverages the Services (the “Customer Site”) and the Customer Interactive Voice Response system (“IVR”). Customer and its Authorized Users may access and use the Services solely for Customer’s business purposes.
2.1. Restrictions. Customer will not attempt to interfere with or disrupt the Services or Instaply Software. Customer will not allow access to, or use of, the Services features by anyone other than Authorized Users, Consumers or Vendors. Customer will not: (a) copy, modify, reverse engineer or distribute any portion of the Services or Instaply Software; (b) rent, lease, or provide access to the Services or Instaply Software on a time-share or service bureau basis, except as anticipated by the functionality of the Services; and (c) transfer any of its rights hereunder. An Authorized User account can only be used by a single and duly identified Autorized User. No Authorized User account can be shared between several employees or contractors of Company.
2.2. Customer Content and Customer Communications. Instaply will not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption caused by any third party of any (a) text, graphics, images, works of authorship of any kind, and information or other materials (the “Content”) provided by Customer and Authorized Users to be made available through the Services, excluding Customer Communications (such Content, the “Customer Content”) or (b) individual communications, between Customer (via its Authorized Users) and Consumers and Vendors, made via the Services (the “Customer Communications”). Customer acknowledges and agrees that Instaply does not monitor Customer Content, Customer Communications or any other data transmitted through the Services and that Instaply has no responsibility in this regard. Customer agrees that Customer Communications will be sent in accordance with applicable law.
2.3. Aggregate Data. Customer acknowledges and agrees that Instaply will, during the Term, aggregate and anonymize Customer Communications (“Aggregate Data”). Aggregate Data will solely relate to the use of the Services by Customer, its Authorized Users, Consumers or Vendors and their Customer Communications and will not be associated or identified with Customer, Authorized Users, Consumers or Vendors specifically. That said, Customer acknowledges and agrees that Instaply may and will use such Aggregate Data in any manner in which it sees fit, including for improvement of the Services.
3 CUSTOMER OBLIGATIONS
3.1. Cooperation and Assistance. Customer will provide Instaply with good faith cooperation and assistance and make available such information, facilities, personnel and equipment as may be reasonably required by Instaply in order to provide the Services.
3.2. Use by Authorized Users. Customer will ensure that all Authorized Users comply with the terms and conditions of these Terms with respect to the Services. Customer will promptly notify Instaply of any suspected or alleged violation of these Terms. Instaply may suspend or terminate any Authorized User’s access to the Services upon notice to Customer in the event that Instaply reasonably determines that such Authorized User has violated these Terms. Customer will be liable for any violation of these Terms by any Authorized User.
3.5. Customer Licenses to Instaply.
3.5.1Customer grants to Instaply a non-exclusive, transferable, sublicensable, worldwide, royalty-free, limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) (i) in connection with provision of the Services to Customer and (ii) on the Instaply Site and marketing materials identifying Customer as an Instaply customer. All goodwill developed from such use will be solely for the benefit of Customer.
3.5.2 Customer grants to Instaply a non-exclusive, transferable, sublicensable, worldwide, royalty-free limited license to use, copy, modify, distribute, and display, Customer Content and Customer Communications only in connection with providing the Services to the Customer and for no other purposes.
3.6. Customer Representations. Customer represents and warrants to Instaply that: (i) it has all rights, power and authority that are necessary for Customer’s collection, use and processing of the Customer Content and Customer Communications as contemplated by these Terms; and (ii) Customer’s use of the Services pursuant to these Terms will not breach any third-party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world (collectively, the “Intellectual Property Rights”) or rights of publicity or privacy or agreement between Customer and any third party (including agreements with mobile application platform operators and mobile application distribution channels) or violate any applicable local, state or federal laws, regulations, orders or rules.
Instaply welcomes feedback, comments and suggestions for improvements to the Services (“Feedback”). Customer and Customer’s Authorized Users can submit Feedback by contacting Instaply via the Instaply Site or the Services or by email at email@example.com. Customer and Customer’s Authorized Users grant to Instaply a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that they own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Instaply respects copyright law and expects its users to do the same. It is Instaply’s policy to terminate in appropriate circumstances Account holders, Customers or Customers’ Authorized Users who repeatedly infringe or are believed to repeatedly infringe the rights of copyright holders. Please see our Copyright Policy at https://instaply.com/en/copyright, for further information.
6.1. Invoices; Credit Card; Payment; Late Payment. Customer agrees to pay to Instaply the fees described in the applicable Order Form in accordance with the payment terms on the Order Form and this Section 6.1. Customer will pay the One Time Set-Up Fee on the first day of the Initial Term described in the Order Form. Customer will pay Instaply for all other fees and applicable Taxes specified on the Order Form within thirty (30) days of the date of Instaply’s invoice. That said, if Customer is paying by credit card, Customer agrees that Customer’s credit card will be charged in advance of Instaply’s provision of any of the Services. Customer agrees that Instaply may use the services of Third-Party Service Providers for payment processing and that Customer may be required to comply with the additional processing terms and conditions of such Third Party Service Providers (as defined below). If Instaply has not received payment within five (5) days after the payment due date, interest will accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Instaply. Customer will reimburse Instaply for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
6.2. Taxes. All amounts and fees stated or referred to in the Order Form are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer is responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Instaply’s net income.
6.3. Fee Increases. Instaply reserves the right to increase the fees payable to Instaply by Customer for the Services for any renewal Terms under these Terms and will notify Customer in advance of such increases ninety (90) days prior to the end of the then current Term.
7.1. Instaply. As between Instaply, Customer and Consumer, the Instaply Software, Services, the Instaply Web and Mobile Applications and the Aggregate Data, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of Instaply or its licensors.
7.2. Customer. As between Customer and Instaply, the Customer Content, Customer App, and Customer Site and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of Customer or its licensors. As between Customer and Instaply, the Customer Communications and all Intellectual Property rights therein or relating there are the exclusive property of Customer and its Consumers.
8.1. Definition. “Confidential Information” means any business or technical information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; or (ii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Customer Content and Customer Communications are not considered to be Confidential Information of Customer (provided however that the user names and log in credentials of Authorized Users and Consumers is Confidential Information). The Services are Instaply’s Confidential Information.
8.2. Exclusions. The obligations and restrictions set forth in Section 8.3 will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of these Terms by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
8.3. Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of these Terms and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of these Terms; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 8.3 will remain in effect during the term of these Terms and for a period of three (3) years after the expiration or termination of these Terms.
8.4. Permitted Disclosures. The provisions of this Section 8 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request.
9 WARRANTY; DISCLAIMER
9.1. Service Performance for Customers Only. If you are a Customer, Instaply agrees to provide the Services to you in accordance with the Instaply service level commitments available at https://www.instaply.com/service-level-agreement/. For avoidance of doubt, this Section and the SLAs do not apply to Customer’s Authorized Users’ use of the Services and/or the Instaply Web and Mobile Applications.
9.2. Third Party Service Providers. Customer acknowledges and agrees that Instaply’s ability to provide the Services is dependent on certain third party service providers who provide services to Instaply, including third party SMS messaging services and third party telecommunications services (“Third Party Service Providers”) and Instaply does not have and will not have any liability or responsibility to Customer in the event that the Services do not perform due to the action or inaction of a Third Party Service Provider.
9.3. Disclaimer. EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS AND THE SERVICE LEVEL AGREEMENT, INSTAPLY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, INSTAPLY DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. INSTAPLY FURTHER DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. INSTAPLY FURTHER DISCLAIMS ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM INSTAPLY OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
10 TERM AND TERMINATION
10.1. Term. As between Instaply and Customer, these Terms will remain in effect for so long as any Order Form(s) remain in effect, and the term of any Order Form will begin on the start date and end on the expiration date specified therein (the “Initial Term”). After the Initial Term, Customer’s subscription to the Services will automatically renew for subsequent one (1) year periods, unless either party notifies the other in writing of its intent not to review at least sixty (60) days prior to the end of the then-current term. The Initial Term and renewal periods are collectively the “Term”.
10.2. Termination for Cause. Customer may terminate these Terms upon written notice to Instaply if Instaply materially breaches these Terms and fails to correct the breach within thirty (30) days following written notice specifying the breach. Instaply may terminate these Terms for any reason upon notice to Consumers. Instaply may terminate these Terms with respect to Customer if Customer materially breaches these Terms and fails to correct the breach within thirty (30) days following written notice specifying the breach.
10.3. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of these Terms, (a) any outstanding Order Form(s) will simultaneously terminate, (b) Customer’s and its Authorized Users’ right to access and use the Services will immediately terminate and (c) each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Instaply may destroy or otherwise dispose of any Customer Content in its possession unless Instaply receives, no later than ten (10) days after the effective date of the expiration or termination of these Terms, a written request for the delivery to Customer of the then-most recent back-up of the Customer Content. Instaply will use all reasonable efforts to deliver the back-up to Customer within thirty (30) days of its receipt of such a written request. Customer will pay all reasonable expenses incurred by Instaply in returning Customer Content to Customer. If any phone numbers were provided to Customer by Instaply during the Term, upon termination or expiration of these Terms for any cause whatsoever, if permitted by Instaply’s applicable agreement with a Third Party Service Providers and subject to the applicable terms in such agreement regarding transfer of phone numbers upon termination of the agreement, Instaply will transfer access and control over those phone numbers to Customer, unless instructed otherwise by Customer, in writing.
10.4. Survival. The rights and obligations of Instaply and Customer contained in Sections 1, 2.2, 2.4, 3.5, 6, 7, 8, 9, 10.3, 10.4, 11, 12 and 13 will survive any expiration or termination of these Terms.
11.1. Indemnification of Customer by Instaply. Instaply will defend any suit or action brought against Customer to the extent that it is based upon a third party claim that the Services (excluding the Customer App, Customer Site, Customer Content, Customer Communications and Consumer Content), as provided by Instaply to Customer pursuant to these Terms, infringe any U.S. copyright or misappropriate any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Customer. Instaply’s obligations under this Section 11.1 are contingent upon: (a) Customer providing Instaply with prompt written notice of such claim; (b) Customer providing reasonable cooperation to Instaply, at Instaply’s expense, in the defense and settlement of such claim; and (c) Instaply having sole authority to defend or settle such claim.
11.2. Exclusions. Notwithstanding the terms of Section 11.1, Instaply will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Services with equipment, devices, software or data (including without limitation the Customer App, Customer Site, Customer Content, Customer Communications and Consumer Content) not supplied by Instaply, if a claim would not have occurred but for such combination, operation or use; or (ii) Customer’s or an Authorized User’s or a Consumer’s use of the Services other than in accordance with these Terms.
11.3. Sole Remedy. THE FOREGOING STATES THE ENTIRE OBLIGATION OF INSTAPLY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.
12 LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 8, AND FOR THE PARTIES INDEMNIFICATION OBLIGATIONS IN SECTION 11, NO EVENT WILL ANY PARTY BE LIABLE TO ANOTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THESE TERMS, IN NO EVENT WILL INSTAPLY’S AGGREGATE LIABILITY TO A CUSTOMERS, CONSUMERS AND ANY THIRD PARTY IN CONNECTION WITH THESE TERMS OR CUSTOMERS’ AND CONSUMERS’ ACCESS TO AND USE OF THE SERVICES EXCEED THE TOTAL MONTHLY FEES PAID BY A CUSTOMER IN THE TWELVE (12)-MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
13.1. Governing Law. These Terms, and any related Order Form(s), and all matters arising out of or relating to these Terms will be governed by the laws of France, without regard to its conflict of law provisions. Any legal action or proceeding relating to these Terms will be brought exclusively in the COURTS OF PARIS, FRANCE. Instaply and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
13.2. Order Forms; Precedence. Each Order Form is governed by these Terms. In the event of any conflict between these Terms and an Order Form, the following order of priority will govern the interpretation of such documents: 1) the applicable Order Form and 2) these Terms.
13.3. Waiver. The waiver by a party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach.
13.4. Notices. All notices, including notices of address change, required to be sent hereunder will be in writing and will be sent to firstname.lastname@example.org.
13.5. Severability. In the event any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect.
13.6. Force Majeure. No party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
13.7. Compliance with Laws. Customer agrees that Customer and its Authorized Users will use the Services, Customer App and Customer Site and will collect, process and otherwise use personal data of Consumers and Authorized Users (which is controlled by Customer and processed by Instaply in connection with its provision of the Services to Customer) exclusively for authorized and legal purposes consistent and in compliance with all applicable laws and regulations and the rights of others.
13.8. Relationship Between the Parties. Nothing in these Terms will be construed to create a partnership, joint venture or agency relationship between the parties. No party will have the power to bind another or to incur obligations on another’s behalf without the other parties’ prior written consent.
13.9. Assignment. Customer and Consumer may not assign or transfer these Terms, in whole or in part, without Instaply’s prior written consent. Instaply may freely assign or transfer these Terms, in whole or in part, by operation of law or otherwise. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, these Terms will inure to the benefit of the successors and permitted assigns of the parties.
13.10. Entire Agreement. These Terms together with the exhibits hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of these Terms.