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.
2.1Compliance. Customer will use the Services in
compliance with the IdeaGist Terms of Service including the Acceptable Use Policy.
Customer will obtain and maintain any consents from End Users to allow Administrators
to engage in the activities described in this Agreement and to allow IdeaGist to
provide the Services. Customer represents, and must ensure, that its End Users are
governed by this Agreement, the IdeaGist Terms of Service, and consent to the
IdeaGist Privacy Policy.
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.
Disclaimers.
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.
Indemnification.
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.
Miscellaneous.
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.