General Terms of Service

 

Welcome to Inbenta.  The following general Terms of Service (“Terms”) represent the binding agreement, along with any other agreements that reference these Terms, between You and Inbenta Technologies, Inc., (“Inbenta” or “We” or “Us”).  We or Us may or may not be capitalized in these Terms and may also refer to both you and Inbenta.

These Terms, when combined with the terms of any associated Proof of Concept, Implementation, Subscription or other agreements (“Referenced Agreement(s)”), govern your use of the Inbenta Software and Services.  By signing any Referenced Agreements, you are automatically bound by the terms of both the Referenced Agreement and these Terms.

 

Intellectual Property

We are the sole, legitimate and entire owner of the intellectual property rights over the Software and of the documentation associated with it.  We will provide hosting services of the Software to you. This means we will provide hosting service from our own servers and will provide online access to you.

All copyrights, database rights, and any other patent right as to the Software belong to INBENTA.

All copyrights, database rights and any other patent right as to the information provided by you (including all the information contained in or coming from your website users), belong to you.

Any generic model of questions made by INBENTA or by a third party designated by us, all the general information as to the use of the Software, any idea obtained by us as to the use of synonyms, jargon, etc. can be used by us or by a third party designated by us to other customers’ benefit.  Your proprietary content such as your FAQs cannot be used by INBENTA for providing Service to other customers. 

For the purposes of applying these Terms, Affiliate shall mean any related legal entity of yours including subsidiaries and parent companies.  For the purposes of applying the pricing in any Referenced Agreements, Affiliates may or may not be included within such pricing.

We mutually license to each other the use of the brands and trade names of each other in the communications regarding the relationship derived from these Terms, and the use of the Software. Prior written consent from the owner of such brands and trade names will be required in relation to any public statement or communication to be issued by either of us.  The rights in any brand or trade name registered or used by you or us belong to you or us respectively.

  1. License to use.
  2. Under the terms herein and any Referenced Agreements, we grant you and your Affiliates a limited, non-exclusive, and worldwide license to use the Software as specified in these Terms and any Referenced Agreements, (a) according to the documentation provided by us, (b) for your sole use. Any copy of the Software implying a breach of this agreement will be deemed as a breach of the copyrights.

  3. Restrictions
  4. You agree not to, under any circumstance: (a) allow third parties to distribute copies of the Software or of the related documentation to a person or entity outside the licensed web site, (b) reproduce, modify or copy the Software and the related documentation except when clearly allowed by law, these Terms or written consent by us, (c) provide, rent, sell or transfer by any means the Software or a copy of all or part of such Software or use it to benefit third parties, (d) disassemble, use reverse engineering compile or decompile the Software. If you believe you need information concerning the interoperability of the Software with other programs, you will not take apart or decompile the Software to obtain such information and you agree to request it in writing from us. Once we have received your request, we will, acting reasonably, determine if you need such information for the interoperability of a program independently created with other programs and we will provide such information as soon as reasonably practical or will, at your cost assist you with achieving the interoperability or will communicate to you that we will not provide such information or assistance.

    We agree not to, under any circumstance: (a) share with third parties any of your documentation, passwords, platform information, codes or confidential information or that of your Affiliates’ web sites (b) modify your web site and its content without written consent, except for the modifications that were expressed on the Project and that are the reason of this agreement (c) reproduce, modify or copy your platform software and the related documentation except when clearly allowed by law, these Terms or written consent by you.

  5. Limitation of Liability
  6. IN NO EVENT WILL EITHER OF US OR OUR AFFILIATES BE LIABLE TO EACH OTHER OR OUR AFFILIATES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF EITHER OF US WILL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING WILL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER OF US AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY. NEITHER YOUR NOR OUR LIABILITY UNDER THESE TERMS WILL EXCEED THE AGGREGATE AMOUNTS PAID HEREUNDER.

  7. Infringement Indemnification
  8. We will defend, hold harmless, and indemnify you from and against any and all claims, suits, actions, demands, and proceedings of any kind threatened, asserted or filed against you by any third party (collectively “Claims“), and any damages, losses, expenses, liabilities or costs of any kind, (including but not limited to reasonable attorneys’ fees) incurred in connection with such Claims (including those necessary to successfully establish the right to indemnification), arising out of or relating to infringement of the Software on the intellectual property of third parties.

  9. Confidentiality
  10. You and we may have entered into a Non-Disclosure Agreement (“NDA”), in which case the terms of that NDA are hereby incorporated into these Terms.  We both agree that in the event that there is a conflict between these Terms and the NDA relating to our confidentiality obligations, the terms of the NDA will control.

    Your Information.  Any of your customer and customer prospect information, sales information, and your lists and updates (collectively, “Customer Information”) will be considered Confidential Your information and all right, title and interest in such Customer Information is owned by you.  Customer Information may be used only as necessary to provide the Services in accordance with these Terms.  Upon your request, INBENTA will provide you with any or all Customer Information in our possession.

    Privacy and Data Security. Unless expressly set out in a Statement of Work, we do not have any right to access your networks or access or use any personal data or your sensitive business information under these Terms in the course of providing Services, which data/information is your Confidential Information.  In the event that we gain access to any of the foregoing data/information, we will not review, use, process, disclose or otherwise handle the data/information and such review, use, processing, disclosure or handling shall constitute a material breach of these Terms.  To the extent applicable for the activities contemplated under these Terms, we will comply with all applicable privacy and security laws to which it is subject, and will not, by act or omission, place you in violation of any applicable privacy or security law. 

  11. Communications
  12. All the communications between us under these Terms will be in writing and will be handed or sent by mail or fax to the addressee to the above mentioned address. Any communication will produce effects when handed, since its delivery moment; if it is sent by mail, when it is received and; if sent by courier at 10 am of the second working day after it was sent; if it is sent by fax, when an entire and readable copy of the communication is received provided that if it is sent by fax or an original copy is received by mail or handed, it is received in the mentioned address.

  13. Hosting.
  14. We agree to provide the technical and human means needed to perform the hosting services of the Software at the level specified herein, ensuring the availability, continuity and accessibility of the Software by you and your customers. For this purpose, you will establish an Interface between your web pages with access to the Software and INBENTA’s servers where this Software is installed. We will provide you with all necessary technical assistance and information necessary to enable you to establish such interface.

  15. Updates; Support; Maintenance.
  16. During the contractual period, we will provide Software adjustments, bug fixes and updates together with other available technical material. All the adjustments and updates made by us will be deemed part of the Software and will be subject to the Software License Agreement. We will maintain adequate back-ups of the Software and of all data belonging to you and shall have in place extensive and robust disaster recovery plans to ensure that the Software can be provided on an uninterrupted basis to you and that none of your data will be lost, destroyed, amended or corrupted for any reason.

  17. Force Majeure
  18. In the event that either of us is prevented or delayed from performing, or is unable to perform, any of its obligations under these Terms due to an act of God, and such delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented through the use of alternate sources, workaround plans or other means, we will immediately commence and thereafter continue to use commercially reasonable efforts to recommence performance of its obligations whenever and to whatever extent possible without delay, and will promptly each other of the default or delay, which notice will include a description, at a reasonable level of detail of the circumstances causing the default or delay and the plan for recovering from the same.  The affected party may terminate the Agreement of the force majeure event is not cured within ten (10) calendar days from the start of the force majeure event without any penalty or setoff.  You have the right to receive a full refund of the unused prepaid fees.

  19. Warranties
    1. We warrant, undertake and guarantee that: (I) the Software will be delivered following these Terms and according to the materials and documentation that go together with it, and will perform in accordance with the specifications set out in this Agreement and shall deliver all functionality set out in these Terms; (II) the Software is free of faults when used in normal conditions; and (III) the Software does not contravene the copyrights, industrial secret, brands or patents or any other intellectual property rights of any third parties. (IV) all changes, upgrades, developments and new versions  of the Software will be developed and tested in a “Testing Environment’’ before the public start-up, thus your website operations will not be affected by any ongoing developments  and there will be no material reduction in functionality as a result of any such changes and all other pre-existing platform features will be maintained after any changes are implemented.(V) the Software will be kept secure and free from viruses, malware or other malicious or harmful programs or code and we will take all steps necessary to prevent any third party from gaining unauthorized access or use of the Software or to your information or date stored in our systems.
    2. We guarantee that for the duration of the Agreement, we will correct, at no cost to you any fault, anomaly or mistake that may occur in the Software and/or its operation, as detailed in the Service Level Agreement, which can be found at www.inbenta.com/en/sla.
    3.   Other than as set out in this Agreement, we will not guarantee that the Software or the Software functions will meet your needs, will work without any interruption or that it will be free of errors. Your sole remedy against our failure to comply with the above mentioned limited guarantee will be the substitution or amendment of the faulty Software or of its support or the refund of the Price of the License paid by you if we, at our sole discretion, are not able to carry out the substitution or amendment.
  20. No Assignment.
  21. Neither of us will be entitled to assign or transfer its position in the Agreement or the rights and obligations undertaken or derived from it without prior written consent by the other party.

  22. References.
  23. We will be entitled to use your name as a reference in marketing materials.  Additionally, we will be entitled to include the text and logo ‘Powered by Inbenta’ at the foot of the customer-branded pages for the Software specified in Annex 1. The text and logo “Inbenta” may also contain a hyperlink to INBENTA website.

  24. Conflicting Terms.
  25. Acceptance of these Terms by you is expressly limited to its terms and the term of any Referenced Agreement hereto including purchase order issued by you.  You object, and refuse to assent, to the inclusion of any different, conflicting or additional terms in these Terms unless expressly agreed to in writing by us.

  26. Fulfillment of the Agreement, Applicable Law, Legal Costs.
  27. The laws of California, excluding California’s choice of law rules, and applicable federal United States laws govern these Terms.  The exclusive venue for any dispute related to this Agreement will be the state or federal courts located in San Mateo County, California, and each party consents to personal jurisdiction in these courts.  The parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.

  28. Waiver:
  29. Waiver by either of us of the enforcement of any obligation or right under these Terms will not be deemed as a waiver, nor prevent either of us from the right of later enforcement; the delay by either of us exercising any power under these Terms will not be interpreted as a waiver to such power. If any of the clauses of these Terms was declared null and void, it will be removed or limited to a lesser extent in order to keep these Terms in force.

  30. Negotiation Basis.
  31. Both of us agree and accept that the exclusions of guarantees and limitations of liabilities or remedies under these Terms have been negotiated by us and have been taken into account and have been stated in the Terms and that it has been the will of each of us to include them under the Terms herein contained.

  32. Complete Contract.
  33. These Terms, together with any Referenced Agreements, constitute the complete contract between us with regard to the matter object of these Terms.

 

Last updated: 2017/06/07