The Indema Services are offered to Client subject to its acceptance, without modification, of these Terms of Service and any future modifications thereof, and procedures that may be published from time to time or made available to Client on or through indema Services. When indema Services are used by a Client, these Terms form a legally binding contract between Client and Indema. If you are entering into these Terms on behalf of an entity, such as your employer, or the company you work for, you represent and warrant that you have the legal authority to represent and bind such Client, in which case the terms “you,” “your”, “customer” or a related capitalized term herein will refer to such Client.
IF YOU ARE USING YOUR EMPLOYER OR AN ENTITY’S EMAIL ADDRESS IN REGISTERING FOR THE INDEMA SERVICES, PLEASE NOTE THAT YOU ARE DEEMED AS AN AUTHORIZED REPRESENTATIVE AND/OR AGENT OF YOUR EMPLOYER OR AN ENTITY (AS APPLICABLE).
The Terms is a contract that governs Clients’ use of indema Services and consists of the following:
- Master Terms
- Supplemental Terms
- Data Processing Addendum (DPA)
- Privacy Notice
PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE INDEMA SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE INDEMA SERVICES.
“Account” means the primary means for accessing and using indema Services, subject to payment of a Fee designated in the selected Plan.
“Administrator” means a User(s) of an Account which the Client has granted a special authorisation to manage the Client Account.
“Affiliates” means any legal entity that controls or owns more than 50% of such entity’s outstanding shares or securities, is controlled by, or under common control with a party.
“Beta Service” means any functionality of Indema Services that is in development or has not been commercially released as a final product and which Indema has made available to Client for testing and evaluation.
“Client” means a natural or legal person or entity who has accepted these Terms with Indema by using indema Services.
“Client Data” means data and documents of any kind (images, spreadsheets, text files, etc.) and any other digital data and information, which is subject to the Platform, or otherwise inserted into the Platform by the Client and for which Indema is a “processor” (as defined in the Privacy Notice). Client Data shall not contain Sensitive Information.
“Content” means any data and information available through Indema Services or contained within the structure of indema Services, including but not limited to, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments.
“Credentials” means all usernames, passwords, and other access credentials created by or assigned to Client and each of its designated Users for use of indema Services.
“Feature” means a function or set of functions providing a particular capability within indema Services as determined by indema and as further governed by any applicable Supplemental Terms.
“Fee” means regular payment for using indema Services via an activated Account.
“Feedback” means any comment, bug report, feedback, suggestion or modification for indema Services which Client or a User provides to Indema.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with indema Services.
“Master Terms” means these core legal and commercial terms that apply to Client’s use of Indema Services.
“Non-Indema Application” means a web-based, mobile, offline or other software application functionality that interoperates with indema Services, that is provided by Client or a third party and/or listed on a Marketplace. Non-Indema Applications, other than those obtained or provided by Client, will be identifiable as such.
“Indema” means, as the context requires, Indema LLC., Indema UK or Indema OÜ or any other of its Affiliates.
“Indema Materials” means the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the Content, code, data, and all other elements of indema Services.
“Indema Services” means the Web Site, Content, Indema Materials, Platform and all other content, services and/or products, and Features, available on or through the Platform.
“Plan” means various criteria related to the use and functionality and cost of a particular Indema Service and on which the Fee is based.
“Plan Term” means the period of the Client’s use of indema Services commencing on the date of payment of the corresponding Fee for the associated Plan and concluding on the date of expiration of the Plan.
“Platform” means indema customer relationship management application, including any associated Features.
“Privacy Notice” means the notice, as set forth at https://www.indema.co/privacy-policy, which describes how Indema collects, receives,
uses, stores, shares, transfers, and processes Client Data in connection with Client’s use of indema Services. It also describes Client’s choices regarding use, as well as Client’s rights of access to and correction of its Client Data.
“Renewal Date” means the date the Client’s Plan will automatically renew on an annual or monthly basis depending on the Client’s Plan.
“Reseller” means a third party entity that (i) purchases Indema Services from Indema and resells such Indema Services to Clients, (ii) bills such Clients directly and (iii) provides such Clients with customer service related to indema Services.
“Sensitive Information” means credit or debit card numbers; financial account numbers or wire instructions; government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection.
“Sub-processor” means any third party, which Indema uses in the provision of Indema Services.
“Supplemental Terms” means the terms, applicable to Client’s use of a particular Feature or any third party services and which form a part of the Terms.
“Terms” means these Terms of Service and consists of the Master Terms, any applicable Supplemental Terms, the DPA and the Privacy Notice.
“User” means an entity or individual granted with the authorized rights and privileges to use the Account on behalf of a Client.
“Web Site” means the compilation of all web documents (including images, php and html files) made available via www.indema.co, its subdomains or domains with identical names under other top domains, and owned by Indema.
2. MODIFICATIONS TO TERMS
Indema reserves the right, at its sole discretion, to change, modify, add, or remove any portions of the Terms from time to time. Notification of such modifications may be posted on or through the Platform or indema Services. Client’s continued use of indema Services constitutes its acceptance of these Terms and any modifications as they arise.
3. INDEMA SERVICES
3.1 Use of indema Services
Subject to these Terms and any applicable Supplemental Terms, and the payment of the applicable Fee, Indema grants Client and its Users a non-exclusive, non-transferable, non-sublicensable license to use indema Services to:
- collect, store and organize Client Data;
- modify and delete Client Data; and
- customize the standard Features or functionality of indema Services.
3.2 Modifications to Indema Services
Indema reserves the right to modify indema Services or any part or element thereof from time to time without prior notice, including, without limitation:
- rebranding, repackaging or repricing (including any adjustments to current Fees which will be applicable at the next Plan renewal date) indema Services at its sole discretion;
- ceasing providing or discontinuing the development of any particular Indema Service, Feature or part or element of the Platform, temporarily or permanently;
- taking such action as is necessary to preserve Indema’s rights upon any use of indema Services that may be reasonably interpreted as violation of Indema’s intellectual property rights, distribution of Internet viruses, worms, Trojan horses, malware, and other destructive activities or illegal activity.
As applicable, Client may be notified of such modifications when logging in to the Account.
If the Client does not accept a modification, Client shall notify Indema or Reseller (if Client purchased access to indema Services from a Reseller) before the effective date of the modification, and Client’s Account will terminate on the effective date of the modification. However, Client’s continued use of indema Services, or any part or element thereof, after the effective date of a modification shall indicate its consent to the modifications. Indema shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of indema Services, or any part or element thereof.
Client is responsible for maintaining the confidentiality of all Credentials and is solely responsible for all activities that occur with such Credentials. These Credentials must not be shared or used by multiple persons, but may be reassigned to a new User replacing a former User who has terminated employment (or otherwise changed job function) and who no longer uses Indema Services. Indema reserves the right to terminate any User’s Credentials that Indema reasonably determines may have been used by an unauthorized third party or in an unauthorized manner, as solely determined by Indema, and will provide immediate notice of such termination to Client.
Client must promptly notify Indema:
- of any actual or suspected, disclosure, loss or unauthorized use of any Credentials;
- of a User’s departure from the Client’s organization;
- of a change in a User’s role in the Client’s organization; or
- of any termination of a User’s right for any reason.
3.4 Changing Plans
Client may upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans determined by Indema. In such an event, the Client’s credit card on file with Indema will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan. If the Client elects to upgrade their Plan, the unused portion of any prepaid Fees shall be applied to the Fee of the upgraded Plan. If, after the commencement of a Plan Term, Client elects to downgrade their Plan, this may cause the loss of Features, functionality, capacity of the Account, as well as the loss of Client Data. No refund of any prepaid or outstanding Fees will be provided to the Client for the price difference between Plans in the event the Client elects to downgrade after the commencement of a Plan Term.
3.5 Administration of Client’s Account
Client acknowledges that it retains administrative control over to whom it grants access to Customer Data hosted in indema Services. Client may specify a User to be the billing owner and, depending on the Plan, one or more Users to be an Administrator to manage its account, and Indema is entitled to rely on communications from an Administrator when servicing Client’s Account. Client’s Administrator(s) may have the ability to access, monitor, use, and/or export Customer Data.
3.6 Technical Support
Indema shall provide reasonable technical support to Client and its Users via the following options as outlined below, as soon as reasonably possible.
Indema Community & Knowledge Base – available to all Users
Chat – available to all Users, via their Indema Account
If you are having trouble logging in or don’t have a Indema Account, you can reach out to us at [email protected]
Notwithstanding the foregoing, for any Indema Services purchased from a Reseller, the first-line technical support will be provided by the Reseller and not by Indema.
3.7 User Verification
Client understands and agrees that we may require you to provide information that may be used to confirm your identity and help ensure the security of your Account and/or User. In the event that the Client loses access to an Account or otherwise requests information about an Account, we reserve the right to request from the Client any verification we deem necessary before restoring access to or providing information about such Account.
Indema may, from time to time, make Features available through indema Services, and which may be subject to Supplemental Terms. The Client’s use of any such Feature is subject to any applicable Supplemental Terms.
3.9 Free Trial
Currently, indema does not provide a free trial of the services to any user.
3.10 Beta Services
Indema may offer Clients certain Features for the purpose of testing and evaluation called Beta Services. Indema reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services, with or without notice to the Client. The Client agrees that indema will not be liable to the Client or to any third party for any harm related to, arising out of the Client’s use of the Beta Services, or caused by the modification, suspension or discontinuance of any of the Beta Services, for any reason.
3.11 Non-Indema Applications
Indema or third parties may make available third-party non-Indema applications via Marketplace. If Client elects to procure a non-Indema application, the terms and conditions regarding its use or receipt of the non-Indema application are between Client and the provider of those non-Indema applications and any exchange of data between Client and such third party provider is solely between Client and the applicable provider. Any questions, concerns or disputes that arise based on Client’s use of non-Indema applications should be addressed with the provider of such non-Indema application and not with Indema. Indema does not warrant, or support non-Indema applications, whether or not they are designated by Indema as “certified” or otherwise. Indema is not responsible for any disclosure, modification or deletion of Client Data resulting from access by such non-Indema application or its provider.
Integration with Non-Indema Applications. Indema Services may contain Features and functionality designed to interoperate with non-Indema applications. However, Indema cannot guarantee the continued availability of such Features, or functionality, and may cease providing them without notice and without entitling Client to any refund, credit, or other compensation, if for example and without limitation, the provider of a non-Indema application ceases to make the non-Indema application available for interoperation with the corresponding Features or functionality in a manner acceptable to Indema.
4.1 Prohibited Activities
Client and its Users may use indema Services, and any part or element thereof, only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
- use indema Services or any part or element thereof to commit a crime, breach any applicable law or entice or invite others to carry out such illegal actions;
- copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile indema Services or any part or element thereof, or attempt to extract the source code thereof, unless (i) it is expressly allowed under applicable law, and (ii) to the extent that indema is not permitted by that applicable law to exclude or limit the foregoing rights;
- provide false, inaccurate or misleading information;
- act in a manner that is defamatory, trade libelous, threatening or harassing to Indema; or
- use indema Services or any part or element thereof unless it has agreed to be bound to these Terms.
4.2 Uses Requiring Indema Consent
The Client or any User may not, without Indema’s prior express written consent:
- sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant access or make indema Services available, in whole or in part, to any third persons, unless such third person is a User of the same Client; or
- use indema Services, or any part or element thereof, in a scope, with means or for purposes other than those for which their functionality was intended.
4.3 Trade Control Compliance
The Client, any User, Reseller, or agent (“Third Party”) hereby represents, warrants, covenants, and agrees that, with respect to indema Services:
- Third Party has complied and shall comply with, and shall cause its directors, officers, employees, and agents to comply with the United States, European Union, and any other applicable foreign economic, trade, and financial sanctions laws and regulations, including economic and trade sanctions administered by the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the US Department of State (collectively, “Sanctions”), and US, EU and applicable foreign laws and regulations pertaining to export controls, including those administered by the US Departments of Commerce and State (collectively, “Trade Controls”).
- Third Party shall take no action, directly or indirectly, that would cause Indema or any of its Affiliates, or any of their respective officers, directors, employees, or representatives, to violate any Sanctions or Trade Controls.
- Neither the Third Party nor any of its officers or directors, employees, and any agents or other representatives acting on their behalf (i) has been or is designated on any Sanctions- or export-related list of restricted or blocked persons, including designation on OFAC’s List of Specially Designated Nationals and Blocked Persons or OFAC’s Sectoral Sanctions Identifications List, (ii) is located in, organized under the laws of, or resident in any country or territory that is itself the subject of any sanctions or embargoes by any governmental authority, including, but not limited to, Cuba, Iran, Syria, North Korea, Venezuela and the Crimea Region of Ukraine, (iii) is or has been greater than 50% owned or controlled by any person or persons described in clause (i) or (ii) (collectively with (i) and (ii), a “Restricted Person”), or (iv) has or will provide indema Services to any persons described in clauses (i)-(iii).
- Third Party will promptly notify Indema if Third Party or any personnel employed by or affiliated with Third Party: (i) commits any actual or potential breach of Sanctions or Trade Controls in relation to indema Services, or (ii) becomes a Restricted Person.
- Indema, in its sole discretion, shall have the right to immediately terminate the access to, or use of indema Services without notice or liability to Third Party, if Third Party, or any person employed by or affiliated with Third Party, takes any action in violation of the provisions described in this Section 4 or if Indema determines, in its sole discretion, that the Third Party’s continued use of indema Services could violate Sanctions or Trade Controls.
5. INDEMA’S RESPONSIBILITIES
5.1. Provision of Indema Services
Indema will (a) make indema Services, Content and Client Data available to Client pursuant to these Terms, (b) provide support as outlined in Section 3.6 for indema Services to Client at no additional charge, (c) use commercially reasonable efforts to make indema Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Indema shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Indema’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, pandemic, strike or other labor problem, Internet service provider failure or delay or denial of service attack. Indema may use Sub-processors to perform indema Services. Indema will make commercially reasonable efforts to ensure that data transfers to Sub-processors meet requirements applicable to Clients’ processing of Client Data and will provide information on such data transfers in these Terms for Client’s consideration. For additional information regarding such transfers with Sub-processors, please see Indema’s Privacy Notice and current list of Sub-processors.
5.2. Protection of Client Data
Indema will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures for preventing unauthorized access, use, modification or disclosure of Client Data. Additionally, Indema shall only access, use, modify or otherwise disclose of Client Data: (a) to provide indema Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.6 (Compelled Disclosure) below, (c) as Client or User expressly permits in writing.
The provisions of this Section 6 are applicable only if Client accesses indema Services directly from Indema. If Client purchases access to indema Services through a Reseller, any payment terms shall be set forth in Client’s agreement with such Reseller.
The use of indema Services is subject to a Fee. Upon sign-up of an Account, Client must select a Plan. Different rates apply to different Plans. The applicable Fee is charged in advance on a monthly, or annual basis. Indema reserves the right to modify the Fees for any Plan, in its reasonable discretion, at any time after the commencement of the Plan Term, upon at least one month’s prior notice to Client, provided that any such modification will not take effect until the start of any Plan immediately following the Plan Term in which Indema provided Client with notice of the modification.
Client authorizes Indema to automatically charge Client the applicable Fees on or after the Renewal Date unless the Plan has been terminated or canceled in accordance with these Terms. If a Client wishes to reduce the number of Users, it must do so prior to the Renewal Date. Clients may cancel their Plan anytime as outlined below, however must do so prior to the Renewal Date in order to avoid billing of the next Plan Term’s Fees. If Client chooses to cancel its Plan during the Plan Term, Client may use the Service until the end of Client’s then-current Plan Term, but will not be issued a refund for the most recently (or any previously) charged Fees.
All Fees are non-refundable. For purposes of clarity, there are no refunds or credits for periods where the Client did not use an activated Account, used it only partially, deactivated the Account or terminated these Terms during an ongoing payment interval, or where an Account is terminated or suspended by Indema in accordance with Section 13.
All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless stated otherwise stated herein. Client is solely responsible for the payment of such taxes, levies or duties.
In the event the Client does not pay all Fees due within 29 days of invoice date, Indema will suspend all access to the Client Account. Client will have 180 days to provide an authorized payment method to reactivate a subscription and their Account, otherwise Indema has the right to permanently delete the Account, including all Client Data therein.
6.1 Payment Card Authorization
Indema Inc. and its Affiliates may seek pre-authorization of Client’s payment card account prior to its purchase of Indema Services in order to verify that the payment card is valid and has the necessary funds or credit available to cover any purchase. Client agrees to approve such card pre-authorization and to pay any amounts for a Plan described on the Web Site, and authorizes Indema to charge all Fees to such card account. Client agrees to provide Indema updated information regarding its payment card account upon Indema’s request and any time the information earlier provided is no longer valid.
6.2 Direct Debit Payments
If Client agrees, Indema may elect that Client complete a bank debit mandate to enable bank debit payments. In such cases, Indema shall comply with all applicable national rules and regulations related to direct debit payments.
6.3 Payment Service Providers
Indema uses Stripe to process Client’s bank debit payments. More information on how GoCardless processes Client’s personal data and Client’s data protection rights, including Client’s right to object, is available at https://stripe.com/privacy
6.4 Electronic Invoice
If Indema has not sought pre-authorization of Client’s payment card, then before the end of each payment interval, Client will be issued an electronic invoice for payment of the Fee of the next payment interval. Client must pay the invoice by the due date indicated on the invoice.
6.5 Late Payment Charges
Upon delay with any payments, Indema may require the Client to pay interest on the delay (penalty for late payment) for the period that such payment is overdue. The interest rate for late payment due shall be 1% per month or the maximum allowed by local law, whichever is higher.
6.6 Right to Offset
In addition to other rights and remedies Indema may have, if legally permitted to do so, Indema may offset any payment obligations to Client that Indema may incur under the Terms against any fees owed to Indema and not yet paid by Client under the Terms, or any other agreement between Client and Indema.
7. CLIENT DATA/SENSITIVE INFORMATION
7.1 Rights to Client Data
In connection with Client Data, Client affirms, represents, and warrants that: (i) Client either owns its Client Data or has the necessary licenses, rights, consents, and permissions to use and authorize Indema to display or otherwise use the Client Data under all patent, trademark, copyright, trade secrets, or other proprietary rights in and to its Client Data in a manner consistent with the intended Features of indema Services and these Terms, and to grant the rights and license set forth in these Terms, and (ii) Client Data, or Indema’s or any Indema’s licensee’s use of such Client Data pursuant to these Terms, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require the obtaining of a license from or paying any fees and/or royalties by Indema to any third party for the performance of any Indema Services which Client has chosen to be performed by Indema or for the exercise of any rights granted in these Terms, unless Client and Indema otherwise agree.
7.2 Uploading Client Data to Indema Services
Client is solely responsible for its own Client Data and the consequences of posting or publishing them on or through indema Service. If Client uploads Client Data to indema Services, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or their respective owners (including Users, persons and organizations), whether posted and/or uploaded by Client or made available on or through indema Services. By uploading Client Data to indema Services, Client authorizes Indema to process the Client Data. Client is responsible for ensuring that:
- Client and any of the Users associated with the Account do not create, transmit, display or make otherwise available any Client Data which violates these Terms, the rights of Indema, other clients or users of Indema Services or persons or organizations;
- any Client Data is not harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful; and
- Client and all Users associated with the Account have the necessary rights to use the Client Data, including to insert it into indema Services and process it by means of the Account.
7.3 No Liability of Client Data
Indema does not guarantee any accuracy with respect to any information contained in any Client Data and recommends that Client carefully consider what it transmits, submits or posts to or through indema Services. Client understands that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that Client, and not Indema, is entirely responsible for all Client Data that is uploaded, posted, transmitted or otherwise made available through indema Services, by Client or its Users, as well as for any remedial actions taken by indema or other Clients or Users as a result of such Client Data.
7.4 Sensitive Information and Unlawful Client Data
Client will not use indema Service in any way to process (a) Sensitive Information or (b) Client Data that, in any manner, is prohibited by law or in violation of these Terms. Indema is not obliged to pre-screen, monitor or filter any Client Data, or its processing by the Client, in order to determine if it is Sensitive Information or unlawful in nature. However, if Indema, in its sole discretion, has reason to believe that Client is processing any unlawful Client Data or Sensitive Information, or the action of its processing is unlawful in nature, Indema has the right to:
- notify the Client of such unlawful Client Data or Sensitive Information;
- deny its use in indema Services;
- demand that the Client bring its use of indema Services into compliance with these
Terms and applicable law;
- temporarily or permanently remove the unlawful Client Data or Sensitive Information
from indema Services, restrict access to it or delete it.
If Indema is presented convincing evidence that the Client Data is not unlawful or Sensitive Information, Indema may, at its sole discretion, restore such Client Data or Sensitive Information, which was previously removed from indema Services, Account or access to which was restricted.
Indema Services are not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA). As such, Client may not use indema Services where its communications would be subject to such laws. In addition, Client may not use Indema Services in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
No Sensitive Information. CLIENT ACKNOWLEDGES THAT THE INDEMA SERVICES HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY CLIENT AGREES NOT TO USE THE INDEMA SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. INDEMA WILL NOT HAVE, AND INDEMA SPECIFICALLY DISCLAIMS, ANY LIABILITY THAT MAY RESULT FROM CLIENT’S USE OF THE INDEMA SERVICES TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.
7.5 Indema Rights to Client Data
Indema may use Client Data in an aggregated or anonymized format for research, educational and other similar purposes. Indema may not otherwise use or publicly display Client Data without Client’s written consent and respects Client’s right to exclusive ownership of Client Data. Unless specifically permitted by Client and otherwise set forth herein, Client’s use of indema Services does not grant Indema the license to use, reproduce, adapt, modify, publish or distribute the Client Data created by Client or stored in Client’s Account for Indema’s commercial, marketing or any similar purpose. Client expressly grants Indema the right to use and analyze aggregate system activity data associated with use of indema Services by Client and its Users for the purposes of optimizing, improving or enhancing the way indema Services operate, and to create new Features and functionality in connection with indema Services in the sole discretion of Indema.
7.6 Compelled Disclosures
Indema endeavors to comply with all laws, including the US Digital Millennium Copyright Act, and reserves the right to remove any Client Data from the Platform upon receipt of a compliant takedown notice, including any judicial orders or notices.
Indema’s Privacy Notice is available at www.indema.com/privacy-policy.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Indema’s Intellectual Property Rights
The Indema Services, Platform, Indema Materials, Indema trade names and trademarks, and any associated intellectual property thereof are, solely and exclusively, owned and operated by Indema, its Affiliates or its respective third party vendors and hosting partners. Indema Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. Except as set forth in these Terms, Client’s use of indema Services and Indema Materials, and any parts or elements, does not grant to Client any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of indema Materials is strictly prohibited unless Client has received the express prior written permission from Indema or the otherwise applicable rights holder. Client may not use Indema trade names and trademarks in any manner that disparages Indema or its products or services or portrays Indema in a false, competitively adverse or poor light. Indema reserves all rights to indema Services, Platform, Indema Materials and Indema trade names and trademarks not expressly granted in the Terms.
Subject to these Terms and the payment of the applicable Fee, Indema grants Client and its Users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for its personal, non-commercial use. Client shall not remove copyright and proprietary notices that are contained in any part of the Content. Client expressly acknowledges that it does not acquire any ownership rights by downloading any copyrighted material from or through the Platform or indema Services. Client shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as expressly permitted by Indema.
If a Client or a User provides Indema with any Feedback, Indema shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into indema Services.
Client or User hereby grants Indema a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use Feedback for any purpose. Indema shall have the right to modify or remove any Feedback provided in the public areas of the Web Site which indema deems, at its sole discretion, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, hateful or otherwise unlawful.
10. DISCLAIMERS; NO WARRANTY
UNLESS OTHERWISE EXPRESSLY STATED BY INDEMA, THE INDEMA SERVICES, INDEMA MATERIAL, PLATFORM AND ANY CONTENT, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE INDEMA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, INDEMA AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY.
UNLESS OTHERWISE EXPRESSLY STATED BY INDEMA, INDEMA AND ITS AFFILIATES DO NOT WARRANT THAT THE INDEMA SERVICES AND ANY CONTENT OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE INDEMA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE INDEMA SERVICES AND ANY CONTENT OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE INDEMA SERVICES OR THE PLATFORM THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPRESSLY STATED BY INDEMA, INDEMA AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE INDEMA SERVICES, INDEMA MATERIALS OR ANY WEB SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
IF THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS, SET FORTH IN THIS SECTION 10, MAY NOT APPLY TO INDEMA, AND CLIENT MAY HAVE ADDITIONAL RIGHTS AS SET FORTH IN LAW.
Client agrees to defend, indemnify and hold harmless Indema and its Affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of its use or misuse of indema Services, Indema Materials, representations made to Indema, its Affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Indema reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which Client is required to indemnify Indema, and Client agrees to cooperate with such defense of these claims.
12. LIMITATION OF LIABILITY
12.1 No Liability
Indema shall not be liable to the Client or User for any consequences resulting from:
- any modifications in these Terms, modification of indema Services, Indema Material, Account usage by Client or any part or element thereof, including, but not limited to, any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of indema Services or Indema Materials;
- deletion of, corruption of, or failure to store any Client Data;
- use of Client Data by the Client or any of the Users associated with the Account;
- upgrading or downgrading of a current Plan by Client;
- any disclosure, loss or unauthorized use of the login credentials of Client or any User due to Client’s failure to keep them confidential;
- Client’s use of the Account or indema Services by means of web browsers other than those accepted or supported by indema;
- the application of any remedies against the Client or Users by Indema; for example, if the Client or User has committed a crime or conducted a breach of applicable law by using indema Services or any part or element thereof;
- the differences between technologies and platforms used for access; for example, if certain Features, functions, parts or elements of indema Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;
- Indema’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.
In addition, Indema and its Affiliates shall not be liable to the Client for any claim by any user, person, organization, or third persons against the Client arising out of the Client’s failure to:
- provide Indema with accurate information about the Client, Users or Account;
- notify Indema of any reasons due to which a User does not have the right to use the Account on behalf of the Client;
- provide any Indema Services or Features which it has agreed to provide to any person or organization (whether such failure arises as a result of Indema’s negligence, breach of these Terms or otherwise);
- ensure the lawfulness of the Client Data;
- obtain the necessary rights to use the Client Data; or
- abide by any of the restrictions described in these Terms.
12.2 Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF INDEMA AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER FOR THE SPECIFIC INDEMA SERVICES GIVING RISE TO THE LIABILITY IN THE SIX MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS FOR NEGLIGENCE, IN CONTRACT OR TORT, MISREPRESENTATION OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS SET FORTH IN SECTION 5 “FEES/PAYMENT”.
12.3 Exclusion of Consequential and Related Damages
EXCEPT FOR CLIENT’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 “INDEMNIFICATION”, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
13.1 For Convenience
These Terms and/or Client’s access to indema Services may be terminated for convenience in the following situations;
- by the Client at any time by: (i) clicking the cancellation link on the Web Site, (ii) by revoking the billing agreement on its PayPal profile, if Client is paying for indema Service with a PayPal account; or (iii) by means agreed upon between the Client and the Reseller, if Client is paying for indema Service via a Reseller;
- by Indema upon decision to end provision of any portion of indema Services, any Feature and/or close any portion of the Platform;
- by Indema at any stage and for any reason, provided that indema will provide a pro rata refund of any unused Fees for the remainder of the Term; or
- immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.
13.2 For Default
These Terms and/or Client’s access to indema Services may be terminated for default upon written notice to the other party as indicated in Section 15.6 “Notice”:
- by either party in case of breach of these Terms by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party;
- immediately by either party if the other party breaches its obligations, as applicable under Sections 4 “Restrictions”, 7 “Client Data/Sensitive Information”, 9 “Intellectual Property Rights” or 11 “Indemnification”; or
- by Indema with immediate effect if: (i) Client’s use of indema Services is suspected, in Indema’s sole discretion, of illegal activity, (ii) requests made by law enforcement, judicial order or other government agencies for such termination, or (iii) if Client’s use of indema Services endangers the property of others, the Web Site or the Platform.
13.3 Effect of Termination
Upon termination of these Terms and/or Client’s access to indema Services for any reason whatsoever:
- Indema shall deactivate and permanently delete the Account and all Client Data in indema Services within 6 months of the effective date of termination of these Terms and/or Client’s access to indema Services. If the Client has specifically requested for an earlier deletion of the Account and all Client Data, Indema shall fulfill such request within 1 month of its receipt of such request.
- Client must:
- stop using and prevent the further usage of indema Services, including, without limitation, the Platform;
- pay any amounts owed to Indema under these Terms; and
- discharge any liability incurred by the Client under these Terms prior to the termination.
- Except as otherwise set forth herein, in no event shall Client receive a refund of any Fees prepaid hereunder.
- The following provisions shall survive the termination of these Terms: Sections 1, 2, 4, 6, 7-9, 11, 12, 14 and 15.
Indema has the right to suspend access to all or any part of indema Service or an Account, including removing Content, at any time, and for any period of time, for: (i) violation or suspected violation of these Terms, (ii) legal obligations (iii) bandwidth usage by Client or its Users of indema Service, any Features, or functionality to be significantly excessive in relation to other Indema Service users, or to protect the integrity, operability, and security of indema Service, effective immediately, with or without notice. Unless prohibited by law or legal process or to prevent imminent harm to indema Service or any third party, Indema typically provides notice in the form of a banner or email on or before such suspension. Indema will, in its discretion and using good faith, tailor any suspension as needed to preserve the integrity, operability, and security of indema Service. For any such suspension, Indema shall make the sole determination as to any credit or refund of prepaid Fees by the Client.
14. INDEMA CONTRACTING ENTITY/ARBITRATION/GOVERNING LAW & JURISDICTION
14.1 Indema Contracting Entity
The Indema entity with whom Client is contracting under these Terms depends on the domicile of the Client. Indema determines the domicile of the Client based on the country indicated in the billing address of the Client. By accepting these Terms or using indema Services, the Client is contracting with indema entity in the jurisdiction of San Bernardino County, California, USA.
14.2 Arbitration/Governing Law and Jurisdiction
In the event of a dispute, controversy or claim arising out of or in relation to these Terms, including but not limited to the formation, validity, breach or termination thereof, the parties shall attempt to solve the matter amicably in mutual negotiations. In the event a mutually acceptable resolution cannot be reached within a reasonable time, either party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth below. Notwithstanding the foregoing and subject to the terms and conditions set forth below, either party may seek injunctive relief with respect to any disputed matter to the extent possible under applicable law. Should an amicable settlement between parties not be possible, the dispute shall be finally solved by arbitration as designated herein subject to the terms and conditions set forth below. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) shall not be applied to these Terms. Any questions relating to these Terms which are not expressly or implicitly settled by the provisions contained in these Terms shall be governed by and construed in accordance with the following:
Any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in San Bernardino CA, USA, using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of these Terms, the parties consent to (a) exclusive jurisdiction and venue in the United States Federal Courts located in San Bernardino County, California, USA and (b) the laws of the State of Delaware as the governing law, without giving effect to any principles of conflicts of law. Use of indema Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section. The parties each agree that it shall bring any dispute against the other in its respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, the parties each agree that disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.
15.1 Relationship of the Parties
The parties will act solely as independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between Client and Indema, and Client shall not represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any third parties.
If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
15.3 Entire Agreement
These Terms are the entire agreement between Client and Indema regarding Client’s use of indema Services, Indema Materials and the Platform and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without Indema’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing, the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or change of control or ownership of the Client, or its permitted successive assignees or transferees. Indema may freely assign or transfer these Terms or delegate any of its rights and/or obligations under these Terms without restriction.
15.5 No Waiver
Failure of either party to exercise or enforce any provision of or any of its rights under these Terms shall not be deemed a waiver of future enforcement of that or any other provision or right.
Except as otherwise specified in the Terms, all notices related to the Terms will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim, which shall clearly be identifiable as “Legal Notices”, the day of sending by email. Billing-related notices to Client will be addressed to the relevant billing contact designated by Client. All other notices to Client will be addressed to the relevant Client system administrator designated by Client.