IdeaGist for Communities Agreement
Last Modified: December 26, 2016
This IdeaGist for Communities Agreement (the “Agreement“) is between IdeaGist Inc., a Delaware corporation (“IdeaGist“) and Customer or End User, as applicable. Ideagist for Communities is Software as a Service (SaaS) platform, offering different hosted communities, including but not limited to Entrepreneurial Community, Innovation Community, Ideagist Competition, and Ideagist Problem Solving Community (collectively the “Services”). This Agreement governs access to and use of the Services through any client software.
The Customer ordering the Services: If you are ordering the Services, then by clicking “I Agree,” signing your contract for the Services or using IdeaGist for Communities, you agree to this Agreement as a “Customer.” If you are agreeing to this Agreement for use by an organization, you are agreeing to this Agreement on behalf of that organization. You must have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Services.
End Users: If you are using the Services as an “End User“, then by clicking “I Agree” or using IdeaGist for Communities you agree to this Agreement (especially note sections 1, 4, 6, 7, and 8) and the IdeaGist Terms of Service Agreement. To the extent this Agreement conflicts with the IdeaGist Terms of Service Agreement, Ideagist Terms of Service Agreement controls. Please take note that in this Agreement, you are agreeing that your Administrator may be able to control account information and access to your IdeaGist for Communities account.
1. End Users Only Terms
1.1 Accounts. When joining an IdeaGist for Communities account, an End User may join with a new account or convert an existing personal account into a IdeaGist for Communities account. It’s important to note that once an End User’s personal account becomes a IdeaGist for Communities account, it will be subject to the Administrator’s control. End Users must use the Services in compliance with any employment obligations and the Customer’s terms and policies.
1.2“Third Party Request” means a request from a third party for records relating to an End User’s use of the Services including information in or from an End User or Customer IdeaGist for Communities account. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.
1.3Administrator Control. An End User’s Administrator may have the ability to access, disclose, restrict, or remove information in or from an End User’s IdeaGist for Communities account. Administrators may also have the ability to monitor, restrict, or terminate access to an End User’s IdeaGist for Communities account. An End User may not be able to disassociate his or her IdeaGist for Communities account from the organization.
2. Customer Only Terms.
2.2Customer Administration of the Services. Customer may specify End Users as “Administrators” through the administrative console. Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrator use of the Services complies with this Agreement. IdeaGist’s responsibilities do not extend to the internal management or administration of the Services for Customer.
2.3Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of the Services. The Services are not intended for use by End Users under the age of 13. Customer will ensure that it does not allow any person under 13 to use the Services. Customer will promptly notify IdeaGist of any unauthorized use of, or access to, the Services.
2.4Restricted Uses. Customer will not (i) sell, resell, or lease the Services or (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury. Customer, not IdeaGist, is responsible for any applicable vertical or industry-specific regulation compliance (e.g. HIPAA).
2.5Third Party Requests. Customer is responsible for responding to Third Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third Party Requests and will contact IdeaGist only if it cannot obtain such information despite diligent efforts.
IdeaGist will make commercially reasonable efforts, to the extent allowed bylaw and by the terms of the Third Party Request, to: (A) promptly notify Customer of IdeaGist’s receipt of a Third Party Request; (B) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third Party Request, then IdeaGist may, but will not be obligated to do so.
2.6 Communication Setting Management. Customer is responsible for maintaining all “opt-in/out” settings for communications from or via IdeaGist for all of Customer’s End Users. Customer will use reasonable efforts to answer any requests from End Users regarding such settings.
2.7 Provision of Services. Customer may access and use the Services made available by IdeaGist under this Agreement.
2.8 Facilities and Data Transfer. IdeaGist will use commercially reasonable efforts to ensure that all facilities used to store and process Customer Data meet commercially reasonable security standards. By using the Services, Customer consents to transfer, processing, and storage of Customer Data. “Customer Data” means any data and content stored or transmitted via the Services by Customer or End Users.
2.9 Modifications to the Services. IdeaGist may update the Services from time to time. If IdeaGist changes the Services in a manner that materially reduces their functionality, IdeaGist will inform Customer, unless Customer has opted-out of communications of that type from IdeaGist.
2.10 Limitations on Use of Services. IdeaGist may impose reasonable limitations on bandwidth usage, number of End Users accessing the Service, and disk space usage for the Services.
2.11 Support. Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to use of the Services. Customer will use reasonable efforts to resolve support issues before escalating them to IdeaGist.
2.12 Suspension of End User Accounts by IdeaGist. If an End User (i) violates this Agreement or the IdeaGist Terms of Service; (ii) uses the Services in a manner resulting in excessive support requests; or (iii) uses the Services in a manner that IdeaGist reasonably believes will cause it liability, then IdeaGist may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then IdeaGist may do so.
2.13 Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then IdeaGist may automatically suspend use of the Services. IdeaGist will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third party access to the Services.
3. Intellectual Property Rights.
3.1Reservation of Rights. THIS AGREEMENT DOES NOT GRANT IDEAGIST ANY RIGHTS TO CUSTOMER’S OR END USERS’ FILES OR THE INTELLECTUAL PROPERTY RIGHTS EMBODIED IN THOSE IDEAS, FILES, PLANS EXCEPT FOR THE LIMITED RIGHTS EXPRESSLY SET FORTH IN THIS AGREEMENT THAT ARE NEEDED TO RUN THE SERVICES. This Agreement does not grant Customer or End Users (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the IdeaGist trademarks, logos, domain names, or other brand features.
3.2“Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
3.3Limited Permission. IdeaGist may need Customer permission to do things that Customer or End User ask IdeaGist to do with IdeaGist for Communities accounts, for example, hosting data, files, or sharing them at Customer or End User’s direction. This includes product features visible to Customer or End User, for example, image thumbnails or document previews. It also includes design choices made to technically administer the Services, for example, how the Service redundantly backs up data to keep it safe. Customer grants IdeaGist the permissions IdeaGist needs to do those things solely to provide the Services and for IdeaGist to meet its obligations and exercise its rights under this Agreement. This permission also extends to third parties IdeaGist works with to provide the Services, for example Digital Ocean Inc, which provides IdeaGist’s hosting infrastructure (again, only to provide the Services).
3.4Suggestions. While we appreciate it when users send us feedback, we may, at our discretion and for any purpose, use, modify, and incorporate into our products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send IdeaGist or post in IdeaGist’s forums without any obligation to Customer or End Users.
3.5Customer List. IdeaGist may publish Customer’s name, address, Company Logo, Contact for the Administrator in a list of IdeaGist Customers on the IdeaGist website.
3.6Third Party Services. If Customer uses any third-party service with the Services, (a) the service may access or use Customer’s or End User’s information; (b) IdeaGist will not be responsible for any act or omission of the third party, including the third party’s use of Customer’s or End User’s information; and (c) IdeaGist does not warrant or support any service provided by the third party.
4.1 THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER IDEAGIST NOR CUSTOMER MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT. IDEAGIST MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION IN OR FROM AN END USER OR CUSTOMER SERVICES ACCOUNT.
4.2 IdeaGist is not responsible for the accuracy, completeness, appropriateness, or legality of ideas, files, user posts, or any other information in or from an End User or Customer Services account. IdeaGist has no responsibility or liability for the deletion or failure to store any information in or from an End User or Customer Services account.
5. Fees & Payment.
5.1 Fees. Customer will pay, and authorizes IdeaGist to charge using Customer’s selected payment method, for all applicable fees. If Customer enrolls in the annual billing plan, fees are refundable within the first 30 days of the Services. Otherwise, fees are non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to IdeaGist. IdeaGist may suspend or terminate the Services if fees are 30 days past due.
5.2 Auto Renewals and Trials. IF CUSTOMER’S ACCOUNT IS SET TO AUTO RENEWAL, OR IS IN A TRIAL PERIOD, IDEAGIST MAY AUTOMATICALLY CHARGE AT THE END OF THE TRIAL, OR FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES IDEAGIST THAT CUSTOMER WANTS TO CANCEL OR DISABLE AUTO RENEWAL. IdeaGist may revise Service rates by providing Customer at least 30 days notice prior to the next charge.
5.3 Taxes. Customer is responsible for all taxes. IdeaGist will charge tax when required to do so. If Customer is required by law to withhold any taxes, Customer must provide IdeaGist with an official tax receipt or other appropriate documentation.
6. Term & Termination.
6.1Term. This Agreement will remain in effect until Customer’s subscription to the Services expires or terminates, or until the Agreement is terminated.
6.2Termination for Breach. Either IdeaGist or Customer may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its Communities operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
6.3Termination at Will. Customer may terminate this Agreement at any time by disabling Customer’s Services account via the Services administrative console.
6.4End User Termination. End Users may stop using the Services at any time. If an End User’s IdeaGist for Communities account is converted into a personal account, this Agreement will terminate for that account with respect to the End User except that the IdeaGist Terms of Service will continue to apply.
6.5Effects of Termination. If this Agreement terminates: (i) the rights granted by IdeaGist to Customer will cease immediately (except as set forth in this section); (ii) the rights granted by IdeaGist to End User will cease immediately; (iii) IdeaGist may provide Customer access to its account at then-current rates so that Customer may export its information; and (iv) after a commercially reasonable period of time, IdeaGist may delete any data relating to Customer’s account. The following sections will survive expiration or termination of this Agreement: 1(b) (Administrator Control), 2(e) Third Party Requests, 6 (Intellectual Property Rights), 8 (Disclaimers), 9 (Fees & Payment), 10(d) (End User Termination), 10(e) (Effects of Termination), 11 (Indemnification), 12 (Limitation of Liability), and 13 (Miscellaneous).
7.1By Customer. Customer will indemnify, defend, and hold harmless IdeaGist from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement or Acceptable Use Policy; or (iii) use of the Services by Customer’s End Users.
7.2By IdeaGist. IdeaGist will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a claim by a third party against Customer to the extent based on an allegation that IdeaGist’s technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will IdeaGist have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not furnished by IdeaGist, and (ii) any content, information, or data provided by Customer, End Users or other third parties.
7.3Possible Infringement. If IdeaGist believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then IdeaGist may: (i) obtain the right for Customer, at IdeaGist’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If IdeaGist does not believe the options described in this section are commercially reasonable then IdeaGist may suspend or terminate Customer’s use of the impacted Services (with a pro- rata refund of pre-paid fees for the Services).
7.4General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE IDEAGIST AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
7.5Limitation of Liability. Limitation on Indirect Liability. EXCEPT FOR IDEAGIST OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER IDEAGIST NOR CUSTOMER WILL BE LIABLE FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
7.6Limitation on Amount of Liability. IDEAGIST’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $10,000 OR THE AMOUNT PAID BY CUSTOMER TO IDEAGIST HEREUNDER DURING THE THREE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, WHICHEVER IS LOWER.
8.1Terms Modification. IdeaGist may revise this Agreement from time to time and the most current version will always be posted on the IdeaGist for Communities website. If a revision, in IdeaGist’s sole discretion, is material, IdeaGist will notify you (for example to the email address associated with the applicable account). Other revisions may be posted to IdeaGist’s blog or terms page, and you are responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may cancel the Services. If the revision is material and Customer cancels before the effective date of the revision, IdeaGist will refund a pro-rated amount of any fees Customer paid in advance for the Services for the unused portion of the term. If End User does not agree to the revised Agreement terms, End User must stop using the IdeaGist for Communities account. Customer may grant approvals, permissions, extensions and consents by email.
8.2Entire Agreement. The Agreement, including Customer’s invoice, the IdeaGist Terms of Service constitute the entire agreement between you and IdeaGist with respect to its subject matter of this Agreement, and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the Agreement, the IdeaGist Terms of Service,
8.3Governing Law. THE AGREEMENT AND SERVICES WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SAN FRANCISCO COUNTY, CALIFORNIA, AND THE PARTIES CONSENT TO VENUE AND PERSONAL JURISDICTION THERE.
8.4Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect.
8.5Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to you may also be sent to the applicable account email address, and are deemed given when sent. Notices to IdeaGist must be sent to IdeaGist Legal Department, c/o Bir Ventures USA Ltd., 7900 International Drive, Suite 300, Bloomington, MN 55425.
8.6Waiver. A waiver of any default is not a waiver of any subsequent default.
8.7Assignment. Customer may not assign or transfer any part of this Agreement without the written consent of IdeaGist. IdeaGist may not assign this Agreement without providing notice to Customer, except IdeaGist may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
8.8No Agency. IdeaGist and Customer are not legal partners or agents, but are independent contractors.
8.9Force Majeure. Neither IdeaGist nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
8.10 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s End Users are not third party beneficiaries to Customer’s rights under this Agreement.
8.11 Export Restrictions. The export and re-export of data via the Services may be controlled by the United States Export Administration Regulations. The Services may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States and Customer must ensure that Administrators and End Users do not use the Services in violation of any export restriction or embargo by the United States. In addition, Customer must ensure that the Services are not provided to persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.