Insightful Terms of Service

Recitals

WHEREAS, Insightful provides workforce intelligence software that is designed to enable organizations to gain real-time visibility, manage remote and hybrid teams, and optimize performance, and related services, including software updates, maintenance, and technical support (collectively, the "Service"). The Service includes specific features or modules as outlined in the attached Order Form. The Parties have agreed that Insightful will provide the Service to Customer.

THEREFORE, in consideration for the commitments set forth below, the adequacy of which consideration the Parties hereby acknowledge, the Parties agree as follows.

1. DEFINITIONS.
   1. “Account Data” means Customer payment records, credit cards or other information Customer uses to pay Insightful, or other information and records related to Customer’s account with Insightful, including without limitation identifying information related to Customer staff involved in payment or other management of such account.
   2. “Customer Agent” means an individual employee or consultant of Customer for whom access to the Service is granted by or on behalf of Customer for purposes of account administration or to use the features of the Service to monitor Users.
   3. “Customer Data” means any information of any type that is submitted to or collected by the Service by or on behalf of Customer, including User Data but excluding Account Data.
   4. “Data Incident” is any (a) unauthorized disclosure of, access to, or use of Customer Data or (b) violation of Privacy Law through Customer’s account. Data Incidents include, without limitation, such events caused by Customer, Customer Agents, Insightful, Users or other users, by hackers, and by any other third party.
   5. “Data Processing Addendum” or “DPA” means Insightful’s Personal Data Processing Addendum, as referenced and linked below, unless the parties have entered into a separately executed data processing addendum, in which case that separately executed data processing addendum applies.
   6. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Insightful’s products or services.
   7. “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
   8. “Order Form” means an order for access to the Service on the form attached to this Agreement.
   9. “Personal Information” shall have the meaning set forth in Insightful’s Privacy Policy.
   10. “Privacy Law” means privacy and security laws governing Insightful’s handling of Customer Data (if any). For the avoidance of doubt, Privacy Laws do not include laws applicable to Customer or its data to the extent not described in the preceding sentence.
   11. “Protected Health Information” shall have the same meaning as such term as defined in 45 C.F.R. § 160.103, but limited to information that is either created, received, maintained, or transmitted by Vendor on behalf of Business Associate or received by Vendor from Business Associate (each as defined in the BAA).
   12. “Third Party” means an unaffiliated third party to either Insightful or Customer.
   13. “Usage Data” means technical data, logs, and learnings about Customer’s use of the Service, but excludes any Customer Data.
   14. “User” means individual employees or consultants of Customer that are authorized by Customer as end users of the Service.  “Users” does not include Customer Agents.
   15. “User Data” means any data, content, information, and materials that may be textual, audio, or visual of any User that is collected, provided, submitted or uploaded to the Service by or on behalf of Customer.
2. LICENSE FOR USE OF THE SERVICE
   
   1. Use of the Service. During the Service Term, Customer and Customer Agents, subject to any usage restrictions set forth in the Order Form, may access and use the Service pursuant to the terms of this Agreement and any outstanding Order Form, including such features and functions as the Order Form specifies. To the extent Insightful provides any manuals or other documentation related to the use of the Service (the “Documentation”), Customer may reproduce and use the Documentation solely as necessary to support its use of the Service. Unless explicitly stated otherwise in the Order Form, the access granted to the Customer under this Agreement includes access to certain software updates, new features, and versions released during the Service Term of the Agreement at no additional cost; provided that any new features, modules, or versions that are not included in the Order Form or that are offered as separate services may incur additional fees, which will be communicated to the Customer in advance. Insightful shall provide reasonable technical support services as listed in the Order Form.
   2. Users. Subject to the usage limitations set forth in the Order Form, Customer shall have the right to use the Service with respect to a specified number of Users explicitly identified by the Customer as authorized to use the Service. All Users must be at least 18 years old and of legal age in their jurisdiction. Any use exceeding the usage limitations set forth in the Order Form shall be subject to the Overage Fees listed in the Order Form. The Service may not be used with respect to (a) individuals who are not Users or (b) in connection with any software or hardware that does not require a User for use. Insightful reserves the right to request an up-to-date list of Users authorized to use the Service at any time. Customer shall make no representations or warranties regarding the Service or any other matter to Users or any other third party, from or on behalf of Insightful, and Customer shall not create or purport to create any obligations or liabilities for Insightful. Customer will be liable to Insightful for Users’ acts and omissions related to the Service (without limiting any liability of such Users to Insightful). Insightful will have no obligation to provide support or other services or other remedies to Users.
   3. Service Revisions. This Agreement shall apply to any upgrades provided by Insightful that replace or supplement the original Service. Insightful may revise its support services or the features and functions of the Service at any time, provided no such revision materially reduces features or functionality provided pursuant to an outstanding Order Form without the written consent of Customer. The Customer agrees to take reasonable measures to protect the Service and its upgrades from unauthorized use, reproduction, distribution, publication, or alteration. Insightful may block activities that violate policies, disable USB device usage, and implement additional security measures as needed.
3. SERVICE USE AND RESPONSIBILITIES
   
   1. Customer's Use of Service. The Customer agrees to use the Service only in accordance with this Agreement, the Documentation and all applicable laws and regulations, including but not limited to all employment laws and Privacy Laws. The Customer assumes all liability for any employment-related or other business decisions made using the Service.
   2. Acceptable Use. Customer agrees that all use of the Service by Customer, Customer Agents or Users is governed by the Acceptable Use Policy (“AUP”), which is available at Acceptable Use Policy. If Insightful determines, in its reasonable discretion, that any Customer Data or use of the Service by Customer violates the AUP or negatively impacts the Service, Insightful reserves the right to take corrective actions, including suspending or disabling access to the Service.
   3. Responsibility for Account and Users. To use the Service, the Customer must register for an account and provide accurate, current, and complete information, which shall be updated as needed. The Customer is responsible for all activities under its account and for ensuring Customer Agents and Users comply with this Agreement. Any breach by a Customer Agent is considered a breach by the Customer. Insightful’s relationship is solely with the Customer, not individual Users using the Service through the Customer. The Customer must ensure that all individuals or third parties accessing the Service via its account (i) fully comply with this Agreement and (ii) waive any claims against Insightful to the extent allowed by law.
   4. Prevention of Unauthorized Access. The Customer shall implement reasonable measures to prevent unauthorized access to or use of the Service and promptly notify Insightful if any unauthorized access occurs and use its best efforts to stop such unauthorized access. Except as set forth in Section 8, Insightful shall not be liable for unauthorized access to Customer Data due to the Customer's failure to implement adequate security measures.
   5. System Access and Updates. The Customer shall, at all times during the Term, provide Insightful with access to Customer’s computer systems as reasonably necessary for Insightful to install updates. Customer’s failure to permit Insightful to install updates automatically shall result in termination of any warranties for any purpose related to the Service.
4. FEES AND PAYMENT TERMS
   
   1. Payment Obligations. The Customer agrees to pay all fees specified in the Order Form (collectively the “Fees”) in accordance with the terms therein. The Customer agrees to provide accurate billing information and authorize Insightful to charge the Fees. If Insightful is unable to collect the Fees owed, it may take necessary steps for collection, and the Customer will be responsible for all associated costs, including collection fees, court costs, and attorney fees. For late payment, Customer shall pay interest charges from the time the payment was due at the rate that is the lower of 1.5% per month or the highest rate permissible under applicable law. If the Customer fails to pay any amounts due under this Agreement by the specified due date, Insightful reserves the right to suspend and/or terminate the Service immediately, in addition to any other rights or remedies available under this Agreement or by law.
   2. Automatic Renewal Subscriptions. If the Order Form indicates that the Service Term shall automatically renew for additional Service Terms, the Customer shall be enrolled in a payment plan known as the “Automatic Renewal Subscription.” Insightful will securely retain the Customer's account information and automatically process charges upon renewal, requiring no further action from the Customer. The Service Term will renew automatically unless terminated as specified in Section 5. If the Customer cancels their Automatic Renewal Subscription before the end of the current Service Term, Insightful will not issue refunds for any Fees already paid.
   3. Taxes. The Fees do not include any applicable taxes, levies, or duties imposed by any government authority, including but not limited to sales tax, value-added tax (VAT), goods and services tax (GST), or any other taxes that require withholding on behalf of the Customer by Insightful (collectively, the “Taxes”). The Customer is responsible for paying all Taxes and must provide proof of any tax exemptions, and is responsible for all tax documentation and compliance. Insightful reserves the right to adjust the Fees in response to changes in tax laws and may suspend or terminate access to Service if any Fees or Taxes remain unpaid. Taxes are non-refundable except as mandated by applicable law.
   4. Non-Cancelable and Non-Refundable Fees. Unless otherwise specified in this Agreement or the applicable Order Form, all obligations to pay the Fees are non-cancelable, and all payments are non-refundable.
   5. Fee Adjustments. Insightful reserves the right to modify the Fees under one or more Order Forms. Any such modifications will be effective upon the renewal of the next Service Term of the relevant Order Form(s). Insightful will notify the Customer of any fee changes at least 45 (forty-five) days before the end of the current Service Term and changes will be applied in the subsequent billing cycle. Continued use of the Service after the effective date of any fee changes will be considered acceptance of those modifications.
   6. Chargebacks. Insightful reserves the right to contest any chargeback initiated by the Customer, providing relevant information and documentation to the credit card company or financial institution to demonstrate that the Customer authorized the charge and continued to access the Service thereafter. Access to the Service will remain suspended until the Customer re-subscribes to a new plan and pays all applicable Fees in full, including any fees and expenses incurred by Insightful and/or third-party services related to the chargeback. This includes fees for Service provided prior to the chargeback, handling and processing charges, and Fees charged by the payment processor. Insightful may suspend or terminate the Customer's account after repeated chargebacks, at its discretion, to protect its interests and mitigate potential losses from fraudulent activity. In cases of repeated or fraudulent chargebacks, Insightful reserves the right to pursue legal action to recover lost funds and enforce its rights under this Agreement.
5. TERM AND TERMINATION
   
   1. Service Term. The initial subscription term of this Agreement will be as specified and agreed upon in the Order Form, commencing on the Effective Date (the “Initial Service Term”). Unless terminated in accordance with the terms of this Section 5.1, the Initial Service Term shall renew for additional subscription terms as set forth in the Order Form (each additional subscription term, a “Renewal Service Term” and together with the Initial Service Term, the “Service Term”). Insightful will provide notice of such renewal to Customer at least 45 (forty-five) days prior to the end of the then-current Service Term. Either Party may refuse automatic renewal by providing written notice to the other Party at least 30 (thirty) days before the end of the then-current Service Term.
   2. Termination for Cause. Either Party may terminate this Agreement immediately if the other Party (i) materially breaches this Agreement and fails to cure such breach within 30 (thirty) days of receiving notice (if curable), without prejudice to any rights or remedies available under this Agreement or applicable law, or (ii) becomes the subject of a bankruptcy petition or any proceeding related to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Without limiting Insightful’s other rights and remedies, Insightful may suspend or terminate a Customer’s or User’s access to the Service at any time, with notice, if Insightful reasonably concludes such Customer or User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement.
   3. Effect of Termination. Upon termination or expiration of this Agreement:(i) the Customer will cease all use of the Service and the Documentation in its possession or control, and all rights granted to the Customer under this Agreement will terminate; and (ii) upon written request, Insightful will delete, destroy or make all Customer Data in its possession or control available for download or export (as applicable based on Customer’s request) within 30 (thirty) days following termination. After this period, Insightful is under no obligation to maintain Customer Data and will delete it in accordance with its data retention policies. Upon termination of this Agreement, Insightful will immediately cease using any Customer Data or Confidential Information of Customer.
   4. Survival of Obligations. The following obligations will survive termination of this Agreement: Confidentiality (Section 6), Intellectual Property (Section 7), Warranty Disclaimers (Section 9.3), Limitation of Liability (Section 10), Indemnification (Section 11) and any other obligations that, by their nature, should continue beyond termination.
6. CONFIDENTIALITY
   
   1. Definition of Confidential Information. “Confidential Information” refers to any information disclosed by one Party (“Discloser”) to another (“Recipient”) that is marked or designated as confidential or should reasonably be understood as such based on the context of the disclosure. This includes, but is not limited to, the Documentation, trade secrets, technical information (intellectual property, inventions, methods), details about the Service’s features and performance, business and financial data (including Customer Data and Personal Information), pricing, forecasts, strategies, product plans. Confidential Information does not include information that: (a) has become publicly available through no fault of the Recipient; (b) was independently developed by the Recipient without use of or reference to the Confidential Information;  (c) was rightfully known to the Recipient before its receipt from the Discloser; (d) was disclosed by the Discloser to the public without any restrictions on disclosure; (e) was lawfully received by the Recipient from a Third Party, provided that such Third Party did not breach any agreement or duty of confidentiality; (f) is disclosed as required by legal proceedings or applicable law.
   2. Confidentiality Obligations. Each Party agrees to keep the other Party’s Confidential Information strictly confidential and to use it solely in accordance with this Agreement and only to the extent necessary for fulfilling obligations related to the use and provision of the Service. Disclosure of Confidential Information is permitted only to the subprocessors, employees, advisors, affiliates, personnel, representatives of the Recipient who are bound by confidentiality agreements with terms no less stringent than those in this Agreement, and only on a need-to-know basis. Confidential Information must not be shared with any Third Parties without prior written consent from the Discloser, except as required by law. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide the Discloser with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser’s cost, if Discloser wishes to contest the disclosure or seek a protective order. The Recipient will protect the Discloser’s Confidential Information with at least the same care as its own confidential information, but not less than reasonable care. Both Parties will implement appropriate security measures to protect against unauthorized access, use, or duplication of the Confidential Information. Each Party shall promptly notify the other in writing of any actual or suspected misuse or misappropriation of Confidential Information. Upon written request from the Discloser, Recipient will promptly return or certify the destruction of all Confidential Information, including that in internal documents, without retaining any copies. The Recipient may retain Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by applicable law, provided that such information continues to be governed by the confidentiality provisions of this Agreement for as long as it is retained.
   3. Retention of Rights. This Agreement does not transfer ownership of the Discloser’s Confidential Information or grant a license thereto. The Discloser will retain all right, title, and interest in and to all of such Party’s Confidential Information.
   4. Injunction. Insightful and Customer agree that: (a) no adequate remedy exists at law if either Party breaches any of their respective obligations in this Section 6; (b) it would be difficult to determine the damages resulting from its breach of this Section 6, and such breach would cause irreparable harm to the Discloser; and (c) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that the Discloser prove actual damage or post a bond or other security. The Recipient waives any opposition to such injunctive relief or any right to such proof, bond, or other security. This Section 6.4 does not limit either Party’s right to injunctive relief for breaches not listed.
7. INTELLECTUAL PROPERTY RIGHTS
   
   1. IP Rights in the Service. Insightful or, as applicable, its licensors, retain all right, title, and interest in and to the Service, including without limitation the software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, reports generated by the Service, and copyrights, and all Intellectual Property Rights related thereto (collectively, “Insightful IP”), excluding any Customer Data. This Agreement does not grant Customer any intellectual property license or rights in or to the Service or any of its components, except to the limited extent set forth in this Agreement. Customer recognizes that the Service and its components are protected by copyright and other laws.
   2. Trademarks. The trademarks, trade names, trade dress, logos, and service marks (collectively, the “Trademarks”) displayed on www.insightful.io or the Service are the registered and/or unregistered trademarks of Insightful.io Inc. or other third parties. Customer’s access to this website or the Service does not grant any license or right to use these Trademarks without the written permission of Insightful or the respective third-party owners.
   3. Remedies for Violation: The Parties acknowledge that any violation of this provision may cause irreparable harm to Insightful. Consequently, if the Customer fails to comply with this Agreement, Insightful will be entitled to specific performance, including the issuance of a temporary restraining order or preliminary injunction, judgment for damages caused by such breach, and any other remedies available under law.
   4. Feedback and Ownership. Insightful welcomes Feedback or inquiries regarding the Service. Any Feedback provided by the Customer will become the exclusive property of Insightful. Insightful has not agreed to and does not agree to treat as confidential any Feedback that Customer or Users provide to Insightful, and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Insightful’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Insightful is not obligated to utilize any Feedback received.
8. CUSTOMER DATA
   
   1. Use of Customer Data. As between Customer and Insightful, Customer has and retains exclusive ownership of all Customer Data. Customer grants to Insightful a non-exclusive, worldwide, royalty free right and license during the Service Term to use, disclose, and process Customer Data to (a) provide the Service; (b) perform its obligations under this Agreement; and (c) monitor, correct, enhance, and improve the Service for the sole benefit of Customer. Customer represents and warrants that it owns or has the legal right and authority, and will continue to own or maintain the legal right and authority, to grant to Insightful the license set forth in this Section 8.1. Insightful shall (w) not access, process, or otherwise use Customer Data other than as necessary to provide the Service or fulfill its obligations hereunder or pursuant to any Order Form; (x) not give Customer Data access to any third party, except Insightful’s third-party service providers and subcontractors that have a need for such access to provide the Service or fulfill its obligations hereunder or pursuant to any Order Form and are subject to a reasonable written agreement governing the use and security of Customer Data; (y) exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data; and (z) comply with all Privacy Laws. Insightful shall notify the Customer within 72 hours after becoming aware of any Data Incident and shall use commercially reasonable efforts to mitigate the effects of such Data Incident.
   2. Data Collection. The Customer is solely responsible for any Customer Data transmitted through the Service, including automatically collected, uploaded, or submitted Customer Data and Insightful disclaims all liability for the accuracy of Customer Data collected or uploaded through the Service. The Customer warrants that it has the necessary rights to collect, store, and process Customer Data and that all Customer Data, whether collected automatically or uploaded manually, is accurate, lawfully obtained, and compliant with applicable laws and regulations. The Customer represents and warrants that it has obtained all necessary consents from individuals whose Personal Information is provided to Insightful.
   3. Access to Third-Party Websites. The Service may link to third-party websites (“Websites”) that contain third-party content, data, or materials (“Data and Materials”). By using the Service, the Customer acknowledges that Insightful is not responsible for the accuracy, legality, or quality of these Websites or Data and Materials. Insightful may change, suspend, or disable links to Websites at any time without notice. The Customer accesses these Websites at their own risk and must comply with all applicable laws. Insightful disclaims liability for any offensive content found on these Websites.
   4. Insightful's Rights. Insightful reserves the right to review, reject, or delete Customer Data that may pose liability risks or harm its reputation, as well as to take any other action it deems appropriate.
   5. Collection and Use of Data. By using the Service, the Customer agrees that Insightful may create, collect, analyze, use, and disclose Usage Data to improve the Service and deliver relevant services or technologies; provided that such information shall not reasonably be used to identify Customer or any individual. All Usage Data and intellectual property rights therein are and shall remain the sole and exclusive property of Insightful, and Customer hereby assigns to Insightful all right, title, and interest in and to any and all Usage Data. To the extent any Usage Data is not owned by Insightful or assigned or assignable to Insightful, Customer hereby grants to Insightful a worldwide, perpetual, irrevocable, royalty free, fully paid-up, transferable right and license to use, adapt, translate, perform, exercise, import, disclose, display, reproduce, exploit, make, have made, prepare derivative works of, sublicense, and distribute Usage Data for any purpose and to grant sublicenses for the foregoing.
   6. Privacy Policy. Customer acknowledges Insightful’s Privacy Policy at Privacy Policy  and Customer recognizes and agrees that nothing in this Agreement restricts Insightful’s right to alter such Privacy Policy.
   7. Data Processing. To the extent Insightful Processes Personal Data on behalf of Customer in connection with the Services, Insightful’s Data Processing Addendum available at Personal Data Processing Addendum (the “DPA”) is incorporated by reference into this Agreement and shall apply to such Processing. Capitalized terms used in this Section and not otherwise defined shall have the meanings given to them in the DPA. Customer is responsible for determining whether its use of the Services is subject to Applicable Data Protection Laws and for providing all notices, consents, and authorizations required for Insightful to Process Personal Data in accordance with the Agreement and the DPA.
   8. Protected Health Information. Customer is responsible for determining whether its use of the Service involves Protected Health Information and whether a Business Associate Agreement is required under HIPAA. Customer shall notify Insightful before transmitting any Protected Health Information to the Service and shall not transmit Protected Health Information to Insightful unless and until the Parties have entered into a Business Associate Agreement, to the extent required by HIPAA (the “BAA”). Insightful agrees that it will use and disclose any Protected Health Information in accordance with the BAA.
   9. Required Disclosure. Notwithstanding the provisions above of this Section 8, Insightful may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Insightful shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
9. REPRESENTATIONS & WARRANTIES
   
   1. Insightful’s Warranties.
      1. IP Rights in the Service. Subject to the next sentence, Insightful represents and warrants that it is the owner of the Service and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the Insightful set forth in this Agreement without the further consent of any third party. Insightful’s representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Sections 11.1(e) below. In case of a breach of the warranty in this Section 9.1.1, Insightful, at its own expense, shall promptly take the following actions: (i) secure for Customer the right to continue using the Service; (ii) replace or modify the Service to make it noninfringing; or if such remedies are not commercially practical in Insightful’s reasonable opinion (iii) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Service Term left after such termination. If Insightful exercises its rights pursuant to Subsection 9.1.1(iii) above, Customer shall cease all use of affected Documentation and erase any copies thereof. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Insightful’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 9.1.1 and for potential or actual intellectual property infringement by the Service.
   2. Customer’s Warranties.
      1. Re Customer Itself. Customer represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to Insightful or through the Service; (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law; and (iv) Customer will use the Service only in compliance with applicable laws and regulations.
      2. Re Users. Customer represents and warrants that, to the best of its knowledge: (i) Customer shall not provide any inaccurate information about a User to or through the Service; (ii) each individual User will be at least 18 years or older; (iii) Customer is responsible for obtaining and has obtained the appropriate permissions, consents, and legal bases for Insightful to collect and process all Customer Data and Personal Information of its Users in accordance with the terms set forth in this Agreement and Insightful’s Privacy Policy.
   3. Disclaimer of Warranties. EXCEPT AS SET FORTH ABOVE IN THIS SECTION 9, CUSTOMER ACCEPTS THE SERVICE “AS IS” AND AS AVAILABLE AND EXPRESSLY ACKNOWLEDGES AND AGREES THAT THEIR USE OF THE SERVICE IS AT THEIR OWN RISK AND THAT INSIGHTFUL PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  INSIGHTFUL DOES NOT GUARANTEE THAT THE SERVICE WILL MEET THE CUSTOMER’S SPECIFIC REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR ERRORS, OR THAT ANY DEFECTS WILL BE CORRECTED. INSIGHTFUL DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE. THEREFORE, THE CUSTOMER SHOULD NOT RELY SOLELY ON THE SERVICE FOR ANY PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INSIGHTFUL HAS NO OBLIGATION TO INDEMNIFY, DEFEND, OR HOLD HARMLESS CUSTOMER, INCLUDING WITHOUT LIMITATION AGAINST CLAIMS RELATED TO PRODUCT LIABILITY OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10. LIMITATION OF LIABILITY
    
    1. Exceptions to Limitations: NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, OR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; (III) CUSTOMER’S INDEMNIFICATION OBLIGATION FROM SECTION 11 HEREOF, OR (IV) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
    2. Limitation on Liability: IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE TO THE OTHER PARTY (OR ANY PERSON CLAIMING THROUGH SUCH PARTY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO (I) LOSS OF REVENUE OR ANTICIPATED PROFITS; (II) LOSS OF BUSINESS OR GOODWILL; OR (III) LOSS OF DATA, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    3. Limitation on Liability Amount. EXCEPT AS SET FORTH IN SECTION 10.1, THE MAXIMUM LIABILITY OF EITHER PARTY FOR ANY CLAIMS UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
    4. Acknowledgment of Waiver. By using the Service provided under this Agreement, the Customer acknowledges and agrees that they understand and accept the limitations of liability outlined herein, including the potential waiver of rights regarding claims that may be unknown or unsuspected at the time of acceptance.
    5. Jurisdictional Variations. Some jurisdictions do not allow exclusions of liability for certain types of damages, and as such, the limitations herein may not apply to the Customer to the extent prohibited by applicable law. In such cases, the liability of the Parties will be limited to the fullest extent permitted by law.
11. INDEMNIFICATION

11.1.    Indemnification by the Customer. The Customer agrees to indemnify, defend, and hold harmless Insightful and its subsidiaries, affiliates, officers, directors, agents, and shareholders from any and all claims, actions, losses, damages, expenses, liabilities, obligations, and costs, including reasonable attorneys' fees, arising from or related to: Customer's alleged or actual use of, misuse of, or failure to use the Service, including without limitation: (a) claims by Users; (b) claims related to Data Incidents; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service through Customer’s account, including without limitation Customer Data; (d) claims that use of the Service through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; (e) infringement claims arising out of or related to (i) Customer’s breach of this Agreement, including without limitation its failure to cease use of the Service after Insightful’s direction pursuant to Section 7.1 (Re IP Rights in the Service); (ii) revisions to Service components made without Insightful’s written consent; (iii) Customer’s failure to incorporate updates or upgrades that would have avoided the alleged infringement, provided Insightful offered such updates or upgrades without charges not otherwise required pursuant to this Agreement; or (iv) use of the Service in combination with hardware or software not provided by Insightful; and (f) any and all claims related to Customer’s legal rights to, or its collection of consents necessary to, collect, store, and process Personal Information. Indemnified claims pursuant to the preceding sentence also include claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees.

11.2.   Additional Procedures. The obligations of Customer pursuant to Section 11.1 above include, without limitation: (i) settlement at Customer’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred by Insightful before Customer’s assumption of the defense (but not attorneys’ fees incurred thereafter). Insightful shall provide prompt notice of any claim to be indemnified (each, an “Indemnified Claim”), and reasonably cooperate with Customer’s defense. Customer will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided: (a) if Customer fails to assume the defense on time to avoid prejudicing the defense, Insightful may defend the Indemnified Claim, without loss of rights pursuant to this Section 11 until Customer assumes the defense; and (b) Insightful will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or its associates to admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. Customer’s obligations in Section 11.1 above will be excused if either of the following materially prejudices the defense: (y) Insightful’s failure to provide prompt notice of the Indemnified Claim; or (z) Insightful’s or its associates’ failure reasonably to cooperate in the defense.

      12. REFERENCE AND PUBLICITY

12.1.   Case Study and Reference. Insightful may request Customer’s participation in a case study within 90 days of the Effective Date and to use Customer as a reference for Insightful, provided that such participation shall not be mandatory.

12.2.  Marketing and Publicity. Insightful may request Customer’s participation in press announcements, case studies, trade shows, and other marketing activities, provided that such participation shall not be mandatory. To the extent Customer participates in such activities, Customer grants Insightful a revocable, non-exclusive, worldwide, royalty-free license to use the Customer’s name and/or logo for identification purposes on Insightful’s website and other marketing or advertising materials.

      13. GOVERNMENT MATTERS

13.1.   Corruption. Customer affirms that neither it nor its Customer Agents have received nor been offered any illegal or improper bribes, kickbacks, payments, gifts, or other valuables from any Insightful employee or representative in relation to this Agreement. Should the Customer become aware of any such violations, it agrees to promptly inform Insightful.

13.2.  Export Compliance. Regardless of any other terms in this Agreement, Customer shall not use, provide to any third Party, export, or re-export the Service or any related items or direct products thereof in violation of any restrictions, laws, or regulations imposed by the U.S. Department of Commerce, the U.S. Department of the Treasury's Office of Foreign Assets Control, or any other U.S. or foreign regulatory authority. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Service in, or export such software to, a country subject to a United States embargo (as of the Effective Date, the Crimea Region of Ukraine, Cuba, Iran, North Korea, and Syria). Each Party confirms that it is not listed on any U.S. government denied persons list.

      14. GENERAL

14.1. Independent Contractors. The Parties are independent contractors, not agents, partners, or joint venturers. Neither Party is the agent of the other, and neither may make commitments on the other’s behalf.

14.2.  Governing Law. This Agreement, including all rights and obligations of the Parties, shall be governed by and construed in accordance with the laws of the State of California, USA, irrespective of any principles of conflicts of law.

14.3.  Jurisdiction. Both Parties consent to the exclusive jurisdiction and venue of the courts located in San Francisco, California, USA, except that temporary relief to enjoin intellectual property infringement may be sought in any court with appropriate jurisdiction where such infringement has occurred.

14.4.  Amendments. Insightful reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the terms and conditions of this Agreement and to review, improve, modify or discontinue, temporarily or permanently, the Service or any content or information through the Service at any time, effective with or without prior notice and without any liability to Customer. Insightful will endeavor to notify Customer of material changes by email, but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to Customer or cause Customer to no longer be in compliance with this Agreement, Customer must terminate, and immediately stop using, the Service. Customer’s continued use of the Service following any revision to this Agreement constitutes Customer’s complete and irrevocable acceptance of any and all such changes. Insightful may revise any of its policies posted on its website at any time by posting a new version at such website, and such new version will become effective on the date it is posted.

14.5.  Notices. Insightful may send notices pursuant to this Agreement to Customer’s email address provided by Customer, and such notices will be deemed received 24 hours after they are sent. Communications through Insightful’s website or any email or contact links provided thereon will not be considered legal notice to Insightful or its officers, employees, agents, or representatives, where formal notice to Insightful is required by contract or by federal, state, or local laws, rules, or regulations. A notice to Insightful may be provided at:

Insightful.io Inc.

3739 Balboa St #1067, San Francisco, California 94121

Attn: Chief Executive Officer

or

legal@insightful.io

14.6.   No Third-Party Rights. This Agreement is for the benefit of Insightful and the Customer only. No third Party has any rights or benefits under this Agreement, nor can they enforce or modify any terms. Only Insightful and the Customer can terminate, amend, or waive any terms of this Agreement.

14.7.  Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Insightful’s express written consent. Except to the extent forbidden in this Section 14.7, this Agreement will be binding upon and inure to the benefit of the Parties’ respective successors and assigns.

14.8. Entire Agreement. This Agreement, together with the attached Order Form, exhibits and annexes hereto, constitutes the entire agreement between the Parties. No terms in any prior or subsequently received documents will supersede this Agreement unless agreed upon in a mutually signed written amendment by both Parties.

14.9. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If any provision of this Agreement is found to be invalid or unenforceable by a court, the remaining provisions shall continue in effect and be interpreted to reflect the original intent of the Parties as closely as possible.

14.10.   No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

14.11.  Electronic Communications. By using the Service or contacting Insightful, the Customer consents to receive electronic communications via email, fax, push notification, text, or voice message, including pre-recorded or auto-dialed messages. Insightful may also post notices on the Service. The Customer agrees that electronic communications meet legal requirements for written communications. Carrier messaging, data, and other rates may apply.

14.12.   Force Majeure. Neither Party shall be considered in breach of this Agreement for delays or failures due to events beyond their reasonable control, such as epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing. The affected Party must promptly notify the other Party of such events and make reasonable efforts to resume performance as soon as possible.

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