Infoperformance

InfoPerformance Terms Of Use

Last Update: 21 Sep 2021

INFOPERFORMANCE, INC. (INFOPERFORMANCE) IS WILLING TO GRANT TO YOU, AS THE INDIVIDUAL, COMPANY, OR OTHER LEGAL ENTITY THAT WILL USE THE INFOPERFORMANCE SOFTWARE PLATFORM (COLLECTIVELY, “YOU” OR “YOUR”), THE RIGHT TO ACCESS AND USE THE INFOPERFORMANCE SOFTWARE PLATFORM ONLY ON THE CONDITION THAT YOU ACCEPT ALL TERMS OF THIS INFOPERFORMANCE SOFTWARE TRIAL AGREEMENT (“AGREEMENT”). THIS AGREEMENT IS MADE AND ENTERED INTO AS OF THE DATE INFOPERFORMANCE FIRST GIVES YOU ACCESS TO THE SOFTWARE PLATFORM (“EFFECTIVE DATE”). BY ACCESSING OR USING THE SOFTWARE PLATFORM, YOU CONFIRM THAT YOU HAVE READ AND ACCEPT ALL TERMS OF THIS AGREEMENT. CAPITALIZED TERMS HAVE THE MEANINGS INDICATED IN SECTION 8 AND ELSEWHERE IN THIS AGREEMENT.

1. Grants of Rights.

Subject to the terms and conditions of this Agreement, InfoPerformance hereby grants You a non-exclusive, non-transferable, non-assignable, worldwide, limited right (without the right to sublicense) to access and use the InfoPerformance software platform, including its associated documentation and information (collectively, the “Software Platform”), during the Agreement Term (defined below) solely for Your internal evaluation of the Software Platform (the “Purpose”). The foregoing access and use right is limited to a single Tenant Instance (defined below) of the Software Platform. All rights not expressly granted to You are reserved by InfoPerformance and its licensors.

2. Limitations on Use and Your Responsibilities.

2.1 You may not disclose to any third party the results of any evaluation of the Software Platform performed by or on behalf of You (e.g., any monitoring of its availability, performance or functionality, or any other benchmarking) without the prior written approval of InfoPerformance (email is sufficient).
2.2 You must not: (a)commercially exploit the Software Platform by licensing, sublicensing, selling, reselling, transferring, assigning or distributing it or otherwise making it available to any third party in any way; (b) modify or make any derivative works based upon the Software Platform; (c) reverse engineer the Software Platform; or (d) use any information regarding the Software Platform to build a product or service that competes with the Software Platform.
2.3 You also must not access or use the Software Platform to: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party Privacy Policy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Software Platform or the data contained therein; or (e)attempt to gain unauthorized access to the Software Platform or their related systems or networks.

 2.4 You are responsible for all activity occurring under Your User account. You must: (a) notify InfoPerformance promptly of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Software Platform; and (b) report to InfoPerformance promptly, and use reasonable efforts to promptly stop, any copying, distribution or other misuse of the Software Platform or any InfoPerformance Technology of which You or Your Users become aware.

 2.5 During the term of the Agreement You are responsible for providing InfoPerformance, its employees and contractors all reasonable access to your ticketing systems, databases, and all other internal and external access needed in order for InfoPerformance to perform its services.  It is also Your sole responsibility to ensure that all access provided to InfoPerformance, its employees and contractors is terminated upon termination of the Agreement.

3. Term and Termination.

The term of this Agreement (“Agreement Term”) commences on the Effective Date and continue for twelve (12) months after the Effective Date. At the expiration of the initial term, this Agreement shall continue from year to year under its then existing conditions. InfoPerformance may terminate this Agreement at any time. You may terminate this Agreement for convenience but only by providing thirty (30) days prior written notice to InfoPerformance, and only after all other Agreements that you may have with InfoPerformance or its Marketplace Partners, with whom you may have contracted using the InfoPerformance contact center marketplace, have expired or been terminated.  Sections 2, 3, 4, 5, 6, 7 and 8 of this Agreement will survive any expiration or termination of this Agreement.

4. Confidentiality and Feedback.

4.1 As used herein, “Confidential Information” refers to non-public financial, technical, commercial or other information or tangible materials concerning the business and affairs of the Party to this Agreement that discloses such information hereunder (each a “Disclosing Party”) to the Party that receives such information hereunder (each a “Receiving Party”), including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, and business methods or plans, which a reasonable person in the relevant industry should understand to be confidential based on the nature of the information and all relevant context. For the avoidance of doubt, Confidential Information with respect to You includes Your Data, and with respect to InfoPerformance includes non-public technical information regarding the Software Platform, and the results of any evaluation of the Software Platform performed by or on behalf of You for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

4.2 Confidential Information does not include information that: (a) becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (b) was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party or in connection with the performance by the Disclosing Party of its obligations under this Agreement; (c) becomes lawfully available to the Receiving Party on a non-confidential basis from an independent third party; or (d) is independently developed by the Receiving Party without use of any of Disclosing Party’s Confidential Information.

4.3 The Receiving Party must not use any of the Disclosing Party’s Confidential Information for any purpose other than carrying out the Purpose. Except to the extent expressly permitted by this section, each Receiving Party shall not disclose to any third party any Confidential Information of the Disclosing Party received in anticipation of, or in connection with the performance of, this Agreement, without the prior written consent of the Disclosing Party. For purposes of the preceding sentence, however, “third party” does not include any Affiliates, employees, attorneys, accountants, other professional advisors, as long as (a) the Receiving Party is responsible for any non-compliance with this Agreement by such person or entity, and (b) such person or entity (i) has a commercially reasonable need for access to such Confidential Information in connection with the Purpose, and (ii) is under contractual confidentiality obligations substantially equivalent to Section 4.

4.4 A disclosure by the Receiving Party of any of the Disclosing Party’s Confidential Information (a) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (b) as otherwise required by law, or (c) necessary to establish the rights of either Party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, the Receiving Party gives the Disclosing Party prompt written notice and reasonable cooperation so the Disclosing Party may seek to prevent or limit such disclosure.

4.5 Each Receiving Party’s confidentiality obligations with respect to the Disclosing Party’s Confidential Information shall remain in effect for three (3) years after the expiration or termination of this Agreement.

4.6 You grant InfoPerformance a non-exclusive, perpetual, worldwide, transferable, royalty-free license (including the right to sublicense) to make, use, copy, develop, distribute, offer to sell and sell Feedback (defined below) as a component of the Software Platform. InfoPerformance and its Affiliates may also use information regarding Your use of the Software Platform under this Agreement solely for purposes of enhancing and supporting the InfoPerformance Service and marketing it to you more effectively.

5. Warranties, Warranty Disclaimer and Limitation of Liability.

5.1 Mutual Warranties.  Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding Agreement enforceable against such Party in accordance with its terms.

5.2 WARRANTY DISCLAIMER. EXCEPT TO THE EXTENT EXPRESSLY STATED IN SECTIONS 4 AND 5 OF THIS AGREEMENT: (A) INFOPERFORMANCE AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND (B) INFOPERFORMANCE AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR ANY PROFESSIONAL SERVICES ARE OR WILL BE ERROR-FREE, MEET MEMBER’S REQUIREMENTS, OR ACHIEVE ANY PARTICULAR RESULTS. INFOPERFORMANCE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY PROFESSIONAL SERVICES, AND YOU HAVE NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY INFOPERFORMANCE.

THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. INFOPERFORMANCE IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY INFOPERFORMANCE.

YOU AGREE THAT YOUR SUBSCRIPTION TO THE SOFTWARE PLATFORM IS NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES. MORE GENERALLY, IN ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS RELYING ON ANY OTHER COMMITMENTS, STATEMENTS OR OTHER MATTERS NOT EXPRESSLY ADDRESSED IN THIS AGREEMENT.

5.3 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE: (A) IN NO EVENT WILL INFOPERFORMANCE’S AND ITS AFFILIATES’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT (OR ANY RELATED PROFESSIONAL SERVICES OR DELIVERABLES) EXCEED ONE HUNDRED DOLLARS ($100); AND (B) IN NO EVENT WILL INFOPERFORMANCE OR ITS AFFILIATES OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, OPPORTUNITIES, DATA OR USE) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE PLATFORM IN CONNECTION WITH THIS AGREEMENT, EVEN IF INFOPERFORMANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. Indemnity.

Each Party will defend, indemnify and hold harmless the other Party and its Affiliates and licensors, and their respective Affiliates, officers, directors, employees, attorneys and representatives from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable legal fees, costs and expenses) to the extent arising out of or in connection with a claim alleging that the other Party’s breach of this Agreement violated any rights of a third party.

Each Party’s respective defense and indemnity obligations under Section 6 are contingent upon the indemnified Party: (a) promptly giving notice of the third party claim to the defending/indemnifying Party once the claim is known; (b) giving the defending/indemnifying Party sole control of the defense and settlement of the claim and not compromising or settling the claim without the defending/indemnifying Party’s approval (though the defending/indemnifying Party must not settle such claim unless the settlement unconditionally releases the other Party of all liability and does not adversely affect the other Party’s business or service in a material manner); and (c) providing appropriate information and reasonable cooperation to the defending/indemnifying Party in connection with the claim.

7. General.

This Agreement is governed by the federal laws of the U.S.A., and the laws of the State of Delaware, without regard to their conflicts of law rules, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Software Platform are subject to the exclusive jurisdiction of the state and federal courts located in Delaware, U.S.A. Neither Party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. This Agreement may be modified only if authorized representatives of both Parties consent in writing. Failure to enforce any provision of this Agreement will not constitute a waiver thereof or of any other provision; any waiver to be effective must be signed by an authorized officer of both Parties. If any provision of this Agreement is held illegal, invalid, or unenforceable, that provision will be deemed amended to achieve an economic effect as near as possible to that provided by the original provision and the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected. All legal notices (e.g., claimed breach or termination of this Agreement) required to be provided under this Agreement must be delivered in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified US mail to the other Party at its U.S. corporate headquarters. All other notices from You to InfoPerformance may be made by emailing legal@infoperformance.net.

8. Definitions

As used in this Agreement:

Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;

Feedback” means any comments or suggestions made by You to InfoPerformance or its Affiliates in connection with this Agreement regarding the Software Platform or any InfoPerformance Confidential Information or InfoPerformance Technology;

Software Platform” means one or more Tenant Instances of InfoPerformance’s proprietary Software Platform subscription service environment;

Party” and “Parties” means a party to this Agreement – i.e., InfoPerformance or You;

Tenant Instance” means a single, discrete operational environment within InfoPerformance’s SaaS environment in which Customer may use the Software Platform in accordance with this Agreement;

User(s)” means Your employees, representatives, consultants, contractors or agents who are authorized to use the Software Platform and have been supplied user identifications and passwords by You (or by InfoPerformance at Your request);

Your Data” means any data, information or content that You or Your Users process using the Software Platform in accordance with this Agreement; and

InfoPerformance Technology” means all of InfoPerformance’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by InfoPerformance in connection with this Agreement.