Terms of Service
TERMS AND CONDITIONS FOR USE OF CONCEPTS IN DATA MANAGEMENT U.S. INC.’S SERVICES
1. ACCEPTANCE OF TERMS AND CONDITIONS
These Terms and Conditions govern your (“Subscriber” or “you”) use of the Authentisign, TransactionDesk, TransactionDeskApp, InstanetForms, DocBox or InstanetFax services (the “Subscription Service”) of CONCEPTS IN DATA MANAGEMENT U.S. INC. (“INSTANET SOLUTIONS”, “we,” “us,” and “our”), as accessed either directly through Authentisign.com, TransactionDesk.com, InstanetForms.com, Instanetsolutions.com, TransactionDesk App or through an INSTANET SOLUTIONS affiliate’s web page offering a Service Plan (as defined below) (collectively, the “Site”) or through the purchase of site license access. By depositing any information or document into the System (as defined below), you accept these Terms and any modifications that may be made to the Terms and Conditions from time to time. If you do not agree to these Terms and Conditions, you should not use the Subscription Service or visit or browse the Site. These Terms and Conditions constitute a binding legal agreement between you and Concepts In Data Management U.S. Inc. Please read them carefully and print a copy for your future reference.
2. MODIFICATION OF TERMS AND CONDITIONS
We reserve the right to modify these Terms and Conditions at any time and in any manner at our sole discretion by:
(a) posting a revision on the Site; or
(b) sending information regarding the amendment to the email address you provide to us. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE SITE TO OBTAIN TIMELY NOTICE OF ANY AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE SUBSCRIPTION SERVICE FOR MORE THAN 30 DAYS AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. You agree that we shall not be liable to you or to any third party for any modification of the Terms and Conditions.
“Account” means a unique account established by Subscriber to enable its Authorized Users to access and use the Subscription Service.
“Authorized User” means any employee or agent of Subscriber, identified by a unique email address and user name, who is registered under the Account, provided that no two persons may register, access or use the Subscription Service as the same Authorized User.
“Transaction” means an electronic record containing Information uploaded to the System.
“Form” means an electronic document used in collecting and displaying Information uploaded to the System.
“Document” refers to a contract, notice, disclosure, or other record or document deposited into the System by Subscriber for processing using the Subscription Service.
“Information” refers to any transactional, form related, personal or client information deposited into the System by Subscriber for processing using the Subscription Service.
“Signing” means an electronic record containing one or more Documents consisting of a single page or a group of pages of data uploaded to the System.
“Seat” means an active Authorized User listed in the membership of an Account at any one time. No two individuals may log onto or use the Subscription Service as the same Authorized User, but Subscriber may un-register or deactivate Authorized Users and replace them with other Authorized Users without penalty, so long as the number of active Authorized Users registered at any one time is equal to or less than the number of Seats purchased.
“Service Plan” means the right to access and use the Subscription Service for a specified period in exchange for a periodic fee, subject to the Service Plan restrictions and requirements that are used to describe the selected Service Plan on the Site or negotiated directly with INSTANET SOLUTIONS. Restrictions and requirements may include any or all of the following:
(a) number of Seats and/or Signings that a Subscriber may use in a month or year for a fee;
(b) fee for sent Signings in excess of the number of Signings allocated to Subscriber under the Service Plan;
(c) per-seat or per-user restrictions;and
(d) per use fees.
“Subscription Service” means AUTHENTISIGN, TRANSACTIONDESK, TRANSACTIONDESK APP, INSTANETFORMS, DOCBOX and/or INSTANETFAX services, as updated from time to time, which provides on-line transaction management, form and contract management, electronic signatures, storage services for Documents, internet faxing and offer distribution, via the Internet.
“System” refers to the software systems and programs, communication and network facilities, and hardware and equipment used by INSTANET SOLUTIONS or its agents to provide the Subscription Service.
“Term” means the period of effectiveness of these Terms and Conditions, as specified in Section 12 below.
“Transaction Data” means the metadata associated with a Transaction, Form or Signing (such as Transaction Information, property Information, Form Information, image hash value, method and time of Signing deletion, Transaction participants, sender and recipient names, email addresses, signature IDs) and maintained by INSTANET SOLUTIONS in order to establish the digital audit trail required by the Subscription Service.
4. SUBSCRIPTION SERVICE
During the term of the Service Plan and subject to these Terms and Conditions, Subscriber will have the right to obtain an Account and register its Authorized Users, who may access and use the Subscription Service, and INSTANET SOLUTIONS will provide the Subscription Service in material conformance with the Specifications. Subscriber’s right to use the Subscription Service is limited to its Authorized Users, and Subscriber agrees not to resell or otherwise provide or assist with the provision of the Subscription Service to any third party. In addition, INSTANET SOLUTIONS’ provision of the Subscription Service is conditioned on Subscriber’s acknowledgement and agreement to the following:
(a) The Subscription Service facilitates the creation, maintenance and distribution of Transactions and Forms and the execution of Documents between the parties to those Documents. Nothing in these Terms and Conditions may be construed to make Instanet Solutions a party to any Transaction, Form or Document processed through the Subscription Service, and INSTANET SOLUTIONS makes no representation or warranty regarding the transactions sought to be effected by any Transaction, Form or Document;
(b) Between INSTANET SOLUTIONS and Subscriber, Subscriber has exclusive control over and responsibility for the content, quality, and format of any Transaction, Form or Document. All Transactions, Forms or Documents stored by INSTANET SOLUTIONS are maintained in an encrypted format;
(c) Certain types of agreements and documents may be excepted from electronic signature laws (e.g. wills and agreements pertaining to family law), or may be subject to specific regulations promulgated by various government agencies regarding electronic signatures and electronic records. INSTANET SOLUTIONS is not responsible or liable to determine whether any particular Document is subject to an exception to applicable electronic signature laws, or whether it is subject to any particular agency promulgations, or whether it can be legally formed by electronic signatures;
(d) INSTANET SOLUTIONS is not responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws, regulations, or legal or administrative agency processes. Further, INSTANET SOLUTIONS is not responsible for or liable to produce any of Subscriber’s Documents or other documents to any third parties;
(e) Certain consumer protection or similar laws or regulations may impose special requirements with respect to electronic transactions involving one or more “consumers”, such as (among others) requirements that the consumer consent to the method of contracting and/or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction. Subscriber undertakes to determine whether any “consumer” is involved in any Document presented by Subscriber or its Authorized Users for processing, and, if so, to comply with all requirements imposed by law on such Documents or their formation. INSTANET SOLUTIONS does not and is not responsible to:
(A) determine whether any particular transaction involves a “consumer”;
(B) furnish or obtain any such consents or determine if any such consents have been withdrawn;
(C) provide any information or disclosures in connection with any attempt to obtain any such consents;
(D) provide legal review of, or update or correct any information or disclosures currently or previously given;
(E) provide any such copies or access, except as expressly provided in the Specifications for all transactions, consumer or otherwise; or
(F) otherwise to comply with any such special requirements; and
5. RESPONSIBILITY FOR CONTENT OF COMMUNICATIONS
As between Subscriber and INSTANET SOLUTIONS, Subscriber is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, and written or audible communications submitted by any Authorized User or otherwise processed through its Account, the Subscription Service, or under any Service Plan. Accordingly:
(a) Subscriber will not use or permit the use of the Subscription Service to send unsolicited mass mailings outside its organization. The term “unsolicited mass mailings” includes all statutory or common definitions or understanding of those terms in the applicable jurisdiction, such as those set forth for “Commercial Electronic Mail Messages” under the U.S. CAN-SPAM Act, as an example only; and
(b) Subscriber will not use or permit the use of the Subscription Service: (i) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (ii) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability (other than contractual liability of the parties under Documents processed through the Subscription Service); (iii) in any manner that is likely to damage, disable, overburden, or impair the System or the Subscription Service or interfere with the use or enjoyment of the Subscription Service by others; or (iv) in any way that constitutes or encourages conduct that could constitute a criminal offense.
INSTANET SOLUTIONS does not monitor the content processed through the Subscription Service, but in accordance with DMCA (Digital Millennium Copyright Act) safe harbors, it may suspend any use of the Subscription Service, or remove or disable any content that INSTANET SOLUTIONS reasonably and in good faith believes violates this Agreement or applicable laws or regulations. INSTANET SOLUTIONS will use commercially reasonable efforts to notify Subscriber prior to any such suspension or disablement, unless INSTANET SOLUTIONS reasonably believes that:
(A) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or
(B) it is necessary to delay notice in order to prevent imminent harm to the System, Subscription Service, or a third party. Under circumstances where notice is delayed, INSTANET SOLUTIONS will provide the notice if and when the related restrictions in the previous sentence no longer apply.
6. PRICING AND PER USE PURCHASES
The prices, features, and options of the Subscription Service available for an Account depend on the Service Plan selected by Subscriber. Subscriber may also purchase optional services on a periodic or per-use basis. INSTANET SOLUTIONS may add or change the prices, features or options available with a Service Plan without notice.
Subscriber’s usage under a Service Plan is measured based on the actual number of Seats as described in the Service Plan on the Site or negotiated directly with INSTANET SOLUTIONS. Once a per-Seat Service Plan is established, the right of the named Authorized User to access and use the Subscription Service is not transferable; any additional or differently named Authorized Users must purchase per-Seat Service Plans to send Signings. Extra seats, users and/or per use fees will be charged as set forth in Subscriber’s Service Plan if allowed by such Service Plan. Subscriber is allowed to send a reasonable number of Signings from the number of Seats purchased. If INSTANET SOLUTIONS suspects that the number of Signings sent from a particular Seat or a group of Seats is abusive and/or unduly burdensome, INSTANET SOLUTIONS will promptly notify Subscriber, discuss the use-case scenario with Subscriber and any continued monitoring, additional discussions and/or information required to make a final determination on the course of action based on such information. In the event Subscriber exceeds, in INSTANET SOLUTIONS’s sole discretion, reasonable use restrictions under a Service Plan, INSTANET SOLUTIONS reserves the right to transfer Subscriber into a higher-tier Service Plan without notice. If you misrepresent your eligibility for any Service Plan, you agree to pay us the additional amount you would have been charged under the most favorable pricing structure for which you are eligible. INSTANET SOLUTIONS may discontinue a Service Plan at any time, and with prior notice to you, may migrate your Account to a similar Service Plan that may carry a different fee. You agree to allow us to charge your credit card for the fees associated with a substitute Service Plan, even if those fees are higher than those you agreed to when you registered your Account.
Optional services subject to per use charges, such as premium Signing Authentication Measures (“Knowledge Based Assessment”, “KBA”) are measured at the time of use, and such charges are specific to the number of units of the service(s) used during the billing period.
7. SUBSCRIBER SUPPORT
INSTANET SOLUTIONS will provide Subscriber support to Subscriber as specified in the Service Plan selected by Subscriber, and that is further detailed on INSTANET SOLUTIONS’s website.
INSTANET SOLUTIONS will store Documents in accordance with the terms of the Service Plan selected by Subscriber. For Service Plans that specify the Transaction, Form, Document or Signing storage amount as “Unlimited,” INSTANET SOLUTIONS will store an amount of Transactions, Documents, Forms and Signings that is not abusive and/or unduly burdensome, in INSTANET SOLUTIONS sole discretion. Subscriber may retrieve and store copies of Transactions, Documents and Forms for storage outside of the System at any time during the Term of the Service Plan when Subscriber is in good financial standing under these Terms and Conditions, and may delete or purge Transactions, Documents, Forms and/or Signings from the System at its own discretion. INSTANET SOLUTIONS may, at its sole discretion, delete an empty Transaction or Form and uncompleted Documents from the System immediately and without notice upon earlier of: (i) expiration of the Signing (where Subscriber has established an expiration for such Signing, not to exceed 365 days); or (ii) expiration of the Term. INSTANET SOLUTIONS assumes no liability or responsibility for a party’s failure or inability to electronically sign any Document within such a period of time. INSTANET SOLUTIONS may retain Transaction Data for as long as it has a business purpose to do so.
9. BUSINESS AGREEMENT BENEFITS
You may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, “Benefits”) through a business Subscriber’s agreement with us (a “Business Agreement”). Any and all such Benefits are provided to you solely as a result of the corresponding Business Agreement and such Benefits may be modified or terminated without notice. If you use the Subscription Service where a business or government entity pays your charges or is otherwise liable for the charges, you authorize us to share your account information with that entity and/or its authorized agents. If you are enrolled in a Service Plan or receive certain Benefits tied to a Business Agreement with us, but you are liable for your own charges, then you authorize us to share enough account information with that entity and its authorized agents to verify your continuing eligibility for those Benefits and the Service Plan.
10. FEES AND PAYMENT TERMS
The Service Plan rates, charges, and other conditions for use are set forth in the Site or negotiated directly with INSTANET SOLUTIONS. Subscriber will pay INSTANET SOLUTIONS the applicable charges for the Services Plan as set forth on the Site. If you add more Authorized Users than the number of Seats you purchased, we will add those Authorized Users to your Account and impose additional charges for such additional Seats on an ongoing basis. Charges for pre-paid Service Plans will be billed to Subscriber in advance. Charges for per-use purchases and standard Service Plan charges will be billed in arrears.
When you register for an Account, you will be required to provide INSTANET SOLUTIONS with accurate, complete, and current credit card information for a valid credit card that you are authorized to use. You must promptly notify us of any change in your invoicing address or changes related to the credit card used for payment. By completing your registration for the Services Plan, you authorize INSTANET SOLUTIONS or its agent to bill your credit card the applicable Service Plan charges, any and all applicable taxes, and any other charges you may incur in connection with your use of the Subscription Service, all of which will be charged to your credit card. Each time you use the Subscription Service, or allow or cause the Subscription Service to be used, you reaffirm that we are authorized to charge your credit card. You may terminate your Account and revoke your credit card authorization as set forth in the Term and Termination section of these Terms and Conditions.
We will provide you with one invoice in a format we choose, which may change from time to time, for all Subscription Service associated with each Account and any charges of a third party on whose behalf we bill. Payment of all charges is due and will be charged to your credit card upon your receipt of an invoice. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations. If your Account is a qualified business account and is approved by us in writing for corporate billing, charges will be accumulated, identified by Account identification number, and invoiced on a monthly basis. You agree that we may (at our option) accumulate charges incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that we may delay obtaining authorization from your credit card issuer until submission of the accumulated charge(s). This means that accumulated charges may appear on the statement you receive from your credit card issuer.
If INSTANET SOLUTIONS does not receive payment from your credit card provider, you agree to pay all amounts due upon demand. INSTANET SOLUTIONS reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
Your credit card issuer’s agreement governs your use of your credit card in connection with the Subscription Service, and you must refer to such agreement (not these Terms and Conditions) with respect to your rights and liabilities as a cardholder. You are solely responsible for any and all fees charged to your credit card by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds, and over the credit limit fees. You agree to notify us about any billing problems or discrepancies within 20 days after they first appear on your invoice. If you do not bring them to our attention within 20 days, you agree that you waive your right to dispute such problems or discrepancies.
We may modify the price, content, or nature of the Subscription Service and/or your Service Plan at any time. If we modify any of the foregoing terms, you may cancel your use of the Subscription Service. We may provide notice of any such changes by e-mail, notice to you upon log-in, or by publishing them on the Site. Your payment obligations survive any termination of your use of the Subscription Service before the end of the billing cycle.
Any amount not paid when due will be subject to monthly finance charges on the unpaid balance calculated based on an interest rate of 18% per annum, or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by INSTANET SOLUTIONS to collect any amount that is not paid when due. INSTANET SOLUTIONS may accept any check or payment in any amount without prejudice to INSTANET SOLUTIONS’ right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to INSTANET SOLUTIONS under these Terms and Conditions may not be withheld or offset by Subscriber for any reason against amounts due or asserted to be due to Subscriber from INSTANET SOLUTIONS. Unless otherwise noted in the Service Plan or on the Site, all amounts payable under these Terms and Conditions are denominated in United States dollars, and Subscriber will pay all such amounts in United States or Canadian dollars depending on where you reside.
Other than income taxes imposed on INSTANET SOLUTIONS, Subscriber will bear all taxes, duties, VAT and other governmental charges (collectively, “taxes”) resulting from these Terms and Conditions or transactions conducted in relation to these Terms and Conditions. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received and retained by INSTANET SOLUTIONS after all such taxes are paid are equal to the amounts that INSTANET SOLUTIONS would have been entitled to in accordance with these Terms and Conditions as if the taxes did not exist.
11. TERM AND TERMINATION
The term of these Terms and Conditions for each Account begins on the date you register for an Account and continues for the term specified by the Service Plan you purchase (the “Term”). You may terminate your Account at any time upon 10 days advance written notice to INSTANET SOLUTIONS following the notice procedures set forth in the General section of these Terms and Conditions.
For any termination (including when you switch your Account), you will be responsible for payment of all fees and charges through the end of the billing cycle in which termination occurs. You may submit a written request, to INSTANET SOLUTIONS to terminate your annual Service Plan Account within the first 30 days of the Term, following the notice procedures set forth in the General section of these Terms and Conditions, and request a full refund of the prepaid fees paid by you to INSTANET SOLUTIONS. You will be limited to one refund. You agree that termination of an annual Service Plan after the first 30 days of a Term or Renewal Term will not entitle you to any refund of prepaid fees.
You will be in default of these Terms and Conditions if you:
(a) fail to pay any amount owed to us or an affiliate of ours or any amount appearing on your invoice;
(b) have amounts still owing to us or an affiliate of ours from a prior account;
(c) breach any provision of these Terms and Conditions;
(d) violate any policy applicable to the Subscription Service;
(e) are subject to any proceeding under any bankruptcy or insolvency or similar laws; or
(f) if, in our sole discretion, we believe that your continued use of the Subscription Service presents a threat to the security of us or other users of the Subscription Service. If you are in default, we may, without notice to you, suspend your Account and use of the Subscription Service, withhold refunds and terminate your Account, in addition to all other remedies available to us. We may require reactivation charges to reactivate your Account after termination or suspension. The following provisions will survive the termination of these Terms and Conditions and your Account: Sections 3, 5, 10, and 14-20.
12. SUBSCRIBER WARRANTIES
You hereby represent and warrant to INSTANET SOLUTIONS that:
(a) you have all requisite rights and authority to use the Subscription Service under these Terms and Conditions and to grant all applicable rights herein;
(b) the performance of your obligations under these Terms and Conditions will not violate, conflict with, or result in a default under any other agreement, including confidentiality agreements between you and third parties;
(c) you will use the Subscription Service for lawful purposes only and subject to these Terms and Conditions;
(d) you are responsible for all use of the Subscription Service in your Account;
(e) you are solely responsible for maintaining the confidentiality of your Account names and password(s);
(f) you agree to immediately notify us of any unauthorized use of your Account of which you become aware;
(g) you agree that INSTANET SOLUTIONS will not be liable for any losses incurred as a result of a third party’s use of your Account, regardless of whether such use is with or without your knowledge and consent;
(h) you will not use the Subscription Service in any manner that could damage, disable, overburden or impair the System, or interfere with another’s use of the Subscription Service by others;
(i) any information submitted to INSTANET SOLUTIONS by you is true, accurate, and correct; and
(j) you will not attempt to gain unauthorized access to the System or the Subscription Service, other accounts, computer systems, or networks under the control or responsibility of INSTANET SOLUTIONS through hacking, cracking, password mining, or any other unauthorized means.
13. INSTANET SOLUTIONS WARRANTIES
INSTANET SOLUTIONS represents and warrants that:
(a) the Subscription Service as delivered to Subscriber and used in accordance with the Specifications will not infringe on any United States or Canadian patent, copyright or trade secret
(b) the Subscription Service will be performed in accordance with the Specifications in their then-current form at the time of the provision of such Subscription Service;
(c) any products of INSTANET SOLUTIONS that are software shall be free of harmful or illicit code, trapdoors, viruses, or other harmful features; and
(d) INSTANET SOLUTIONS has implemented industry accepted best practices, information security policies and safeguards to preserve the security, integrity, and confidentiality of Documents and to protect against unauthorized access and anticipated threats or hazards thereto.
14. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN SECTION 13 OF THESE TERMS AND CONDITIONS, THE SUBSCRIPTION SERVICE AND THE SITE ARE PROVIDED “AS IS,” AND INSTANET SOLUTIONS: (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET SUBSCRIBER’S REQUIREMENTS, OR BE TIMELY OR SECURE. SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF THE SUBSCRIPTION SERVICE OR SITE. SUBSCRIBER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF INSTANET SOLUTIONS TO ANY THIRD PARTY. USE OF THE SUBSCRIPTION SERVICE AND SITE ARE AT YOUR SOLE RISK.
Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to you. In that event, such warranties are limited to the minimum warranty period allowed by the applicable law.
15. SUBSCRIBER INDEMNIFICATION OBLIGATIONS
You will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to:
(a) your use of the Subscription Service;
(b) your violation of these Terms and Conditions;
(c) your infringement, or infringement by any other user of your Account, of any intellectual property or other right of any person or entity; or
(d) the nature and content of all materials, works, data, statements, and other visual, graphical, written, or audible communications of any nature submitted by any Authorized User of your Account or otherwise processed through your Account.
16. LIMITATIONS OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND CONDITIONS, INSTANET SOLUTIONS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. UNDER NO CIRCUMSTANCES WILL INSTANET SOLUTIONS’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS OR SUBSCRIBER’S USE OF THE SUBSCRIPTION SERVICE (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO INSTANET SOLUTIONS UNDER THESE TERMS AND CONDITIONS DURING THE 3 MONTHS PRECEDING THE DATE OF THE ACTION OR CLAIM. EACH PROVISION OF THESE TERMS AND CONDITIONS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES REPRESENTS AN AGREED ALLOCATION OF THE RISKS OF THESE TERMS AND CONDITIONS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY INSTANET SOLUTIONS TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS AND CONDITIONS, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THESE TERMS AND CONDITIONS HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to you.
“Confidential Information” means any trade secrets or other information of INSTANET SOLUTIONS, whether of a technical, business, or other nature (including, without limitation, INSTANET SOLUTIONS software and related information), that is disclosed to or made available to Subscriber. Confidential Information does not include any information that:
(a) was known to Subscriber prior to receiving it from INSTANET SOLUTIONS;
(b) is independently developed by Subscriber without use of or reference to any Confidential Information;
(c) is acquired by Subscriber from another source without restriction as to use or disclosure; or
(d) is or becomes part of the public domain through no fault or action of Subscriber. During and after the Term of these Terms and Conditions, Subscriber will: (i) use the Confidential Information solely for the purpose for which it is provided; (ii) not disclose such Confidential Information to a third party; and (iii) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. If Subscriber is required by law to disclose the Confidential Information or the terms of these Terms and Conditions, Subscriber must give prompt written notice of such requirement before such disclosure and assist INSTANET SOLUTIONS in obtaining an order protecting the Confidential Information from public disclosure. Subscriber acknowledges that, as between the parties, all Confidential Information it receives from INSTANET SOLUTIONS, including all copies thereof in Subscriber’s possession or control, in any media, is proprietary to and exclusively owned by INSTANET SOLUTIONS. Nothing in these Terms and Conditions grants Subscriber any right, title, or interest in or to any of the Confidential Information. Subscriber’s incorporation of the Confidential Information into any of its own materials shall not render Confidential Information non-confidential. Subscriber acknowledges that any actual or threatened violation of this confidentiality provision may cause irreparable, non-monetary injury to INSTANET SOLUTIONS, the extent of which may be difficult to ascertain, and therefore agrees that INSTANET SOLUTIONS shall be entitled to seek injunctive relief in addition to all remedies available to INSTANET SOLUTIONS at law and/or in equity. Absent written consent of INSTANET SOLUTIONS, the burden of proving that the Confidential Information is not, or is no longer, confidential or a trade secret shall be on Subscriber.
19. INTELLECTUAL PROPERTY
INSTANET SOLUTIONS is the owner of various intellectual property and technology rights associated with the Subscription Service, its document management, form management, fax management, transaction management, including patent pending, copyright, trade secret, and trademark and service mark rights. Except for the rights expressly granted in these Terms and Conditions, INSTANET SOLUTIONS does not transfer to Subscriber or any Authorized User any of INSTANET SOLUTIONS’ technology or other intellectual property or technology rights. All right, title, and interest in and to INSTANET SOLUTIONS’ technology and intellectual property will remain solely with INSTANET SOLUTIONS. Subscriber agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the Subscription Service or INSTANET SOLUTIONS’ technology. INSTANET SOLUTIONS agrees that data and information provided by Subscriber under these Terms and Conditions shall remain, as between Subscriber and INSTANET SOLUTIONS, owned by Subscriber.
INSTANET SOLUTIONS hereby grants to users and licensees of its products and services a limited, revocable, nonexclusive and nontransferable right to use INSTANET SOLUTIONS’ regular trade names, trademarks, titles and logos (“Licensed Marks”) solely for purposes of identifying INSTANET SOLUTIONS’ products and services.
Subscriber acknowledges that the Subscription Service and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that INSTANET SOLUTIONS makes available to its Subscribers (collectively “Excluded Data”), is subject to export control laws and regulations of the United States, Canada and other jurisdictions (collectively “Export Laws”). Subscriber represents and warrants that: (i) it is not located in, under the control of, or a national or resident of an embargoed country or prohibited end user under Export Laws; and (ii) it will not access, download, use, export or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by export laws, without first complying with all Export Laws that may be imposed by the U.S. or Canadian Government and any country or organization of nations within whose jurisdiction it operates or does business. Subscriber is solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through the Subscription Service.
Subscriber shall advise INSTANET SOLUTIONS in the event the Excluded Data requires INSTANET SOLUTIONS to obtain additional licenses, permits and/or approvals from any government in the jurisdiction where Subscriber intends to use the Subscription Service. Upon being advised of such a requirement, INSTANET SOLUTIONS may at its sole discretion:
(a) terminate Subscriber’s Account;
(b) obtain such licenses, permits, and/or approvals as may be required; or
(c) modify these Terms and Conditions such that additional licenses, permits, and/or approvals are no longer required to be obtained by INSTANET SOLUTIONS.
INSTANET SOLUTIONS will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of these Terms and Conditions. These Terms and Conditions will not be interpreted or construed as:
(a) creating or evidencing any association, joint venture, partnership, or franchise between the parties;
(b) imposing any partnership or franchise obligation or liability on either party;
(c) prohibiting or restricting either party’s performance of any services for any third party; or
(d) establishing or as a foundation for any rights or remedies for any third party, whether as a third party beneficiary or otherwise. Subscriber must not represent to anyone that Subscriber is an agent of INSTANET SOLUTIONS or is otherwise authorized to bind or commit INSTANET SOLUTIONS in any way without INSTANET SOLUTIONS’ prior authorization.
Subscriber may not assign its rights, duties, or obligations under these Terms and Conditions without INSTANET SOLUTIONS’ prior written consent. If consent is given, these Terms and Conditions will bind Subscriber’s successors and assigns. Any attempt by Subscriber to transfer its rights, duties, or obligations under these Terms and Conditions except as expressly provided in these Terms and Conditions is void. INSTANET SOLUTIONS may freely assign its rights, duties, and obligations under these Terms and Conditions. INSTANET SOLUTIONS may utilize a subcontractor or other third party to perform its duties under these Terms and Conditions so long as:
(a) INSTANET SOLUTIONS shall not be relieved of any responsibilities or obligations under these Terms and Conditions that are performed by the subcontractor or third party; and
(b) INSTANET SOLUTIONS shall remain Subscriber’s sole point of contact and sole contracting party.
Any notice required or permitted to be given in accordance with these Terms and Conditions will be effective if it is in writing and sent using the certified delivery function of the Subscription Service, by email, certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in Subscriber’s registration information for Subscriber or on the Site for INSTANET SOLUTIONS. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given upon receipt if delivered using the Subscription Service or email, two business days following the date of mailing, or one business day following delivery to a courier. Written notification to terminate an Account shall be sent by email to email@example.com from the Subscriber’s email address set forth in Subscriber’s registration information for Subscriber, or by calling 1.800.668.8768.
Neither party will be liable for, or be considered to be in breach of or default under these Terms and Conditions on account of, any delay or failure to perform as required by these Terms and Conditions as a result of any cause or condition beyond such party’s reasonable control, so long as such party uses all commercially reasonable efforts to avoid or remove such causes of non-performance or delay.
These Terms and Conditions are governed in all respects by the laws of the province of Ontario as such laws are applied to agreements entered into and to be performed entirely within Ontario between Ontario residents. Any controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in London, Ontario, Canada, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. The award of the arbitrator shall be final and binding upon the parties without appeal or review except as permitted by Ontario law. Notwithstanding the foregoing, either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration. By using the Site or the Subscription Service, you consent and submit to the exclusive jurisdiction and venue of the provincial and federal courts located in London, Ontario, Canada. Any legal action by Subscriber arising under these Terms and Conditions must be initiated within 30 days after the cause of action arises.
The waiver by either party of any breach of any provision of these Terms and Conditions does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Terms and Conditions will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms and Conditions.
If any part of these Terms and Conditions is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms and Conditions will remain in full force and effect. If any material limitation or restriction on the grant of any license to Subscriber under these Terms and Conditions is found to be illegal, unenforceable, or invalid, the license will immediately terminate.