Terms & Conditions of use for the ITK Reports Services
NOTICE: THE FOLLOWING TERMS AND CONDITIONS APPLY TO YOUR USE OF THE ITK ONLINE SERVICES IF YOU ARE AN AUTHORIZED USER IN AN ORGANIZATION THAT HAS ACCEPTED THESE TERMS IN WRITING. OTHERWISE, YOUR USE OF THE ONLINE SERVICES IS SUBJECT TO THE GENERAL TERMS AND CONDITIONS VIEWABLE AT http://itkreports.com/terms OR THE TERMS OF YOUR ORGANIZATION’S CUSTOMIZED AGREEMENT WITH ITK. THE CONDITIONS ALSO APPLY TO ANY USERS WHO MAY BE EVALUATING THE SOFTWARE.
GENERAL TERMS & CONDITIONS FOR USE OF THE ITK ONLINE SERVICES July 15th, 2011
The terms and conditions listed below govern use of the online services (the “Online Services”) and materials available therein (“Materials”) provided by ITK Corp (“ITK”). The terms “you” and “your” in uppercase or lowercase shall mean the entity (e.g., company, corporation, partnership, sole proprietor, etc.) or government agency entering into a Subscription Agreement with ITK. The “Subscription Agreement” shall consist of these General Terms and Conditions, and the standard, transactional rates applicable to you (the “Price Schedule”).
1. GRANT OF RIGHTS; RESTRICTIONS ON USE
1.1 You and your Authorized Users (defined below in Section 2.1) are granted a nonexclusive, nontransferable, limited right to access and use for Report Generating purposes the Online Services and Materials made available to you. The rights granted to each Authorized User are as follows:
(a) The right to email, fax, download or make printouts of reports using the commands of the Online Services.
(b) distribute Generated Reports to persons who are not Authorized Users as permitted by applicable copyright law
(c) If you are not an Authorized User, you are not permitted to access or use the Online Services for any purpose whatsoever. If you nevertheless access and use the Online Services or Materials without authorization, your access and use will be governed by these General Terms and Conditions and you will be liable to ITK for any breach of the General Terms and Conditions as well as for unauthorized access and payment for use at the rates in the applicable Price Schedule.
1.2 To the extent permitted by applicable copyright law you and your Authorized Users may make copies of Generated Reports and distribute Generated Reports and copies.
1.3 You may not exploit the goodwill of ITK, including its trademarks, service marks, or logos without the express written consent of ITK. Additionally, under no circumstances may you or any Authorized User offer any part of the Online Services or Materials for commercial resale or commercial redistribution in any medium or use the Online Services or the Materials to compete with the business of ITK.
1.4 All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the Online Services and Materials in any medium belongs to ITK. Neither you nor your Authorized Users acquire any proprietary interest in the Online Services, Materials, or copies thereof, except the limited rights granted herein.
1.5 Neither you nor your Authorized Users may use the Online Services or Materials in any fashion that infringes the intellectual property rights or proprietary interests of ITK or any third party. Your use of the Online Services and Materials must comply with all applicable laws, rules or regulations.
1.6 Neither you nor your Authorized Users may remove or obscure the copyright notice or other notices contained in Materials.
2. ACCESS TO SERVICES
2.1 Only your employees, temporary employees, students, partners/members, and contractors dedicated to performing work exclusively for you (to the extent those categories of persons are appropriate to your situation) are eligible to access and use the Online Services and Materials (“Eligible Persons”). Without limitation, external professional service providers such as attorneys, accountants, outsourcers and public relations firms are specifically excluded from being Eligible Persons. The term “Authorized User” means an Eligible Person whom you have identified to ITK for purposes of issuing an ITK ID. You agree that each ITK ID may only be used by the Authorized User to whom ITK assigns it and that the ITK ID may not be shared with or used by any other person, including other Authorized Users. You will manage your roster of Authorized Users and will promptly notify ITK to deactivate an Authorized User’s ITK ID if the Authorized User is no longer an Eligible Person or you otherwise wish to terminate the Authorized User’s access to the Online Services. You are responsible for all use of the Online Services accessed with ITK IDs issued to your Authorized Users, including associated charges, whether by Authorized Users or others. You will use reasonable commercial efforts to prevent unauthorized use of ITK IDs assigned to your Authorized Users and will promptly notify ITK, in writing, if you suspect that an ITK ID is lost, stolen, compromised, or misused.
2.2 The Online Services and feature functionality within the Online Services may be enhanced, added to, withdrawn, or otherwise changed by ITK without notice.
2.3 Subject to Section 2.2 above, the Online Services may contain a feature that will allow your Authorized Users to create reports. ITK represents and warrants that: (a) the reports will be under the exclusive control of your Authorized Users; and (b) ITK will not access or otherwise review the content of reports without your authorization. Notwithstanding the foregoing, ITK may access or disclose the content of Reports to the extent necessary to facilitate features and functions of the Online Services and to comply with contractual and legal obligations including, but not limited to, an administrative or judicial proceeding. Authorized Users are solely responsible for the content of their respective Reports. You represent and warrant that the Authorized Users have the right and authority to upload any and all content to the Reports. Authorized Users are prohibited from uploading content to the Reports that is defamatory, libelous, pornographic or obscene, unless such content is reasonably related to professional responsibilities. In addition, Authorized Users are strictly prohibited from uploading content to the Reports that is unlawful or that is considered protected health information under the Health Accountability and Portability Protection Act of 1996 (HIPAA) or the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH). You agree to indemnify, defend, and hold ITK harmless for any and all claims, damages, costs, fines and expenses that ITK may incur as a result of you or your Authorized Users’ use of the Reports or any content uploaded to the Reports. Authorized Users are solely responsible for securing or saving the content of their respective Reports before the expiration or termination of this Subscription Agreement, if desired. ITK has no obligation to provide the content of Reports to you or your Authorized Users after the termination of this Subscription Agreement.
3. LIMITED WARRANTY
3.1 ITK represents and warrants that it has the right and authority to make the Online Services available to you and your Authorized Users as authorized expressly by this Subscription Agreement.
3.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 3.1, THE ONLINE SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS AND ITK DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY
4.1 A Covered Party (as defined below) shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the Online Services (b) the unavailability or interruption of the Online Service or any features thereof (c) your or an Authorized User’s use of the Online Services (d) the loss or corruption of any data or equipment in connection with the Online Services, (e) the content, accuracy, or completeness of Materials, all regardless of whether you received assistance in the use of the Online Service from a Covered Party, (f) any delay or failure in performance beyond the reasonable control of a Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the Online Services.
4.2 "Covered Party" means (a) ITK and any officer, director, employee, subcontractor, agent, successor, or assign of ITK; and (b) each third party supplier of Materials, third party alliance entities, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of Materials or third party alliance entity or any of their affiliates.
4.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR MATERIALS OR THIS SUBSCRIPTION AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE ONLINE SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY.
4.4 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINE SERVICES, MATERIALS, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY’S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR AUTHORIZED USERS') INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO ITK OR ITS THIRD PARTY SUPPLIERS.
4.5 Notwithstanding anything to the contrary in this Section 4:
(a) If there is a breach of the warranty in Section 3.1 above, then ITK at its option and expense, shall either defend or settle any action and hold you harmless against proceedings or damages of any kind or description based on a third party’s claim of patent, trademark, service mark, copyright or trade secret infringement related to use of the Online Services or Materials, asserted against you by such third party provided: (i) all use of the Online Services and Materials was in accordance with this Subscription Agreement; (ii) the claim, cause of action or infringement was not caused by you modifying or combining the Online Services or Materials with or into other products or applications not approved by ITK; (iii) you give ITK prompt notice of any such claim; and (iv) you give ITK the right to control and direct the investigation, defense and settlement of each such claim. You, at ITK’s expense, shall reasonably cooperate with ITK in connection with the foregoing.
(c) The provisions of Sections 4.5(a) and (b) shall constitute your sole and exclusive remedy for the respective matters specified therein.
(b) In addition to Section 4.5(a), if the Online Services or the operation thereof become, or in the opinion of ITK are likely to become, the subject of a claim of infringement, ITK may, at its option and expense, either: (i) procure for you the right to continue using the Online Services, (ii) replace or modify the Online Services so that they become non-infringing, or (iii) terminate this Subscription Agreement on notice to you and grant you a pro-rata refund or credit (whichever is applicable) for any pre-paid fees or fixed charges.
5.1 These General Terms and Conditions, including the Additional Terms may be changed from time to time as described below or by written agreement. Charges and payment terms may be changed in accordance with the terms of your Price Schedule; all other provisions may be changed by ITK immediately upon notice to you. If any changes are made to this Subscription Agreement, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or our Authorized Users but will apply to all similarly situated ITK customers using the Online Services. You may terminate this Subscription Agreement upon written notice to ITK if any change to these General Terms and Conditions is unacceptable to you. For termination to be effective under this Section 5.1, written notice of termination must be provided to ITK within 90 days of the effective date of the change. Continued use of the Online Services following the effective date of any change constitutes acceptance of the change but does not affect the foregoing termination right. Except as provided above, this Subscription Agreement may not be supplemented, modified or otherwise revised unless signed by duly authorized representatives of both parties. Furthermore, this Subscription Agreement may not be supplemented, modified or otherwise revised by email exchange even if the email contains a printed name or signature line bearing signature-like font. The foregoing does not prohibit the execution of electronic contracts bearing electronic signatures of authorized representatives of both parties, provided such signatures include digital certifications or are otherwise authenticated.
5.2 You or ITK may terminate this Subscription Agreement at any time in accordance with this Section 5.2. The effective date of termination shall be 10 days after the receipt of written notice of termination, unless a later date is specified in the notice. ITK may temporarily suspend or discontinue providing access to the Online Services to any or all Authorized Users in breach of this Subscription Agreement without notice and ITK may pursue any other legal remedies available to it.
5.3 All notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by ITK. Notices shall be deemed to have been properly given on the date deposited in the mail, if mailed; on the date first made available, if displayed in the Online Services; or on the date received, if delivered in any other manner.
5.4 The failure of you, ITK, or any third party supplier of Materials to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
5.5 Neither you nor any Authorized User may assign your rights or delegate your duties under this Subscription Agreement without the prior written consent of ITK, which consent shall not be unreasonably withheld. This Subscription Agreement and any amendment thereto shall be binding on, and will inure to the benefit of the parties and their respective successors and permitted assigns.
5.6 This Subscription Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Subscription Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent and (b) such invalidity or unenforceability will not affect any other provision of this Subscription Agreement.
5.7 Where applicable, each affiliated company of ITK has the right to assert and enforce the provisions of this Subscription Agreement directly on its own behalf as a third party beneficiary.
5.8 This Subscription Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations on that subject matter.