Effective June 8, 2020
These Insight Connected Platform™ Terms of Service (the "ToS"), are provided to clients like you (“You” or “Subscriber”) by Insight Direct USA, Inc. (“Insight”), to access and use the Insight Connected Platform, including all content and documentation and the display, storage and use of data made available through the platform by Insight (the “Insight Connected Platform”) and to help You understand how the Insight Connected Platform works, the laws that apply to Insight, the rules for using the Insight Connected Platform, and the legal rights and obligations that You have.
PLEASE READ THESE TOS CAREFULLY. INSIGHT PROVIDES THE INSIGHT CONNECTED PLATFORM SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THESE TOS.
BY USING THE INSIGHT CONNECTED PLATFORM, YOU (A) ACCEPT THESE TOS AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TOS ON YOUR BEHALF AND, IF YOU ARE ENTERING INTO THESE TOS ON BEHALF OF YOUR COMPANY, TO BIND ITS EMPLOYEES AND ITS AUTHORIZED AGENTS, INCLUDING FRANCHISEES AND THEIR EMPLOYEES (WHERE APPLICABLE), (EACH, A “USER”), TO ITS TERMS. INSIGHT GIVES YOU PERMISSION TO USE THE INSIGHT CONNECTED PLATFORM ONLY IF YOU AGREE TO THESE TOS. ALTHOUGH INSIGHT MAY GIVE YOU PERMISSION TO USE THE INSIGHT CONNECTED PLATFORM, IT RETAINS ANY AND ALL INTELLECTUAL PROPERTY RIGHTS IT HAS IN THE INSIGHT CONNECTED PLATFORM.
IF ENTERING INTO THESE TOS ON BEHALF OF YOUR COMPANY, YOU AGREE TO PASS THROUGH THESE TOS TO ALL YOUR AUTHORIZED USERS, INCLUDING YOUR EMPLOYEES, FRANCHISEES, THEIR EMPLOYEES, AND ANY OTHER AUTHORIZED AGENTS.
1. Limited Use Rights and Subscriber Responsibilities
1.1. Limited Rights Grant. For so long as Subscriber maintains a separate Insight Connected Platform™ subscription with Insight to obtain access to the Insight Connected Platform (subscription agreements are entered into separately between Insight and Subscriber) (the “Insight Connected Platform™ Subscription”), Insight grants Subscriber and its Users a non-exclusive, non-transferable, non-sublicensable, revocable and limited right to use the Insight Connected Platform for Subscriber’s internal business purposes, including use in Subscriber’s stores, franchises, facilities, parks or other locations, as applicable. Insight reserves the right to adapt and modify the Insight Connected Platform to provide different features or functionality to improve the Insight Connected Platform.
1.2. Scope of Access and Obligations. Subscriber may permit employees, agents, including franchise owners, their employees, contractors and other third parties to use the Insight Connected Platform solely for Subscriber’s internal business purposes, provided that Subscriber is responsible for such employees, agents, franchise owners, their employees, contractors and other third parties' compliance with these ToS.
1.3. Authorized User Access. The Insight Connected Platform may be configured to either (i) grant named User account access or (ii) allow multiple Users to access through one, shared account. This election is made by the Subscriber based on the account the Subscriber lists in the Subscriber’s identity provider directory (for example, in the Active Directory). Subscriber is solely responsible for adding and removing Users, but such addition or removal of Users may be done either by Insight (on Subscriber's behalf based on Subscriber’s instruction) or directly by Subscriber.
1.3.1. Named User Configuration. Where the Subscriber elects to grant named user accounts, Subscriber will provide and assign unique passwords and usernames to each Authorized User. Subscriber will ensure that Users do not share passwords or usernames. To have individual named user accounts, the Subscriber must include individual email addresses or individual user accounts in the identity provider directory.
1.3.2. Shared Account Configuration. Where the Subscriber elects to allow multiple Users to access the Insight Connected Platform using one, shared account, Subscriber will determine which Users share which accounts, and assign unique passwords and usernames to each such shared account. Subscriber will ensure that Users not approved by Subscriber for access to a shared account are not given the password or username for such shared account. When an Authorized User is removed from a shared account, Subscriber is responsible for immediately changing the shared account's password to prevent unauthorized access. If the Subscriber lists a non-individual or shared email or user account in the identity provider directory, then anyone having access to that email or user account will have access to the Insight Connected Platform.
1.3.3. Subscriber User Authorization. Insight may conclude, without inquiry or liability, that any person in possession of Subscriber’s account information or passwords has the authority to access or modify Subscriber’s account and access the Insight Connected Platform. Subscriber must immediately notify Insight in writing of any unauthorized use of such information or passwords.
1.4. Security. Unless otherwise stated in a separate managed service offering, the Subscriber and its Users are responsible for: (i) ensuring that the computers, phones and other devices used to access the Insight Connected Platform are properly secured and protected; (ii) maintaining the security of Subscriber’s networks, servers, applications and access codes, including, without limitation, managing passwords, the backup and other protection of its system and data, against loss, damage or destruction by third parties; (iii) taking all reasonable steps to safeguard the Insight Connected Platform to ensure that no unauthorized person shall have access to it and that no unauthorized copy, publication, disclosure or distribution, in whole or in part, in any form, shall be made. Subscriber and its Users acknowledge that the Insight Connected Platform contains valuable confidential information and trade secrets and that unauthorized use and copying are harmful to Insight.
1.5. Privacy. Subscriber and its Users should only access the Insight Connected Platform from devices that cannot easily be observed by individuals other than the Users. For example, the Insight Connected Platform should not be accessed from a computer or tablet located in a public area where Subscriber's customers or others visiting the location may observe the dashboard. The Insight Connected Platform may use various cameras and other sensors that collect data, including, but not limited to video, temperature readings, thermal readings, identity information, or other data of Users, Subscriber’s customers, data of bystanders and their activities and the environment, along with data that may be collected, transmitted, stored or uploaded into the Insight Connected Platform by Subscriber or its Users (collectively, “Subscriber Data”), which data collection Subscriber authorizes on its behalf and on behalf of its Users and others. The Subscriber and Users who have been authorized by the Subscriber have full authority to access, review and utilize such Subscriber Data. Users acknowledge they do not have privacy rights in connection with the collection, access and use of Subscriber Data. Subscriber and its Users agree not to use Subscriber Data except as intended for use of the Insight Connected Platform. Subscriber and its Users acknowledge that Insight and its affiliates, contractors, partners and licensors may collect, store and use such Subscriber Data to provide services to the Subscriber; as well as to access and improve the performance of the Insight Connected Platform.
1.6. Third Party Materials. The Insight Connected Platform allows Subscribers and Users to visualize, access, store and manage Subscriber Data from devices that are manufactured by others (“Third Party Devices”), or software that is published, or services that are provided, by parties other than Insight (collectively, “Third Party Materials”). If these Third Party Materials are not working properly, then the Subscriber Data provided may not be accurate or reliable. Unless otherwise stated in a separate managed service offering, Subscribers and/or Users are responsible for ensuring that such Third Party Materials, including Third Party Devices, are working properly, including but not limited to, properly calibrating the Third Party Devices, timely performing all routine and emergency maintenance, and otherwise maintaining the Third Party Devices in accordance with all applicable manufacturer instructions. Insight does not endorse such Third Party Materials, nor does Insight make any representations or warranties with respect to such Third Party Materials or the Subscriber Data obtained from them.
1.7. Alerts. The Insight Connected Platform allows the Subscriber and Users to set alerts that will notify the Subscriber and/or Users when the Subscriber Data received by the Insight Connected Platform falls within the Subscriber's designated alert criteria. Subscriber (or Users who are delegated such authority by Subscriber) is responsible for setting its alert criteria, including but not limited to, the types and number of alerts, the thresholds for triggering the alerts, the contact mechanism to be used to send an alert notification, and to whom the notification should be sent. Insight may input into the Insight Connected Platform, on Subscriber’s behalf, alert criteria that are provided by the Subscriber to Insight. Subscriber acknowledges that it is Subscriber and User's responsibility to review and approve all information within the Insight Connected Platform, including the alert criteria, regardless of who input the alert, and to immediately correct any inaccurate information. Insight will not be responsible for any liability arising out of inaccurate alert criteria or errors in setting or notifying Subscribers and Users of such alerts.
1.8. Additional Subscriber and User Responsibilities. Subscriber and its User agree to provide information reasonably requested by Insight, including, without limitation, any technical information, and any consents that Insight may need from Subscriber, User or third parties necessary to provide the Insight Connected Platform. Subscriber and Users agree to cooperate with Insight to resolve performance issues as necessary.
2.1. Use Restrictions. Subscriber and its User will not, directly or indirectly: (a) use or make any copies of the Insight Connected Platform beyond the scope of the rights granted pursuant to these ToS; (b) provide anyone other than Users with access to or use of the Insight Connected Platform; (c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Insight Connected Platform; (d) combine the Insight Connected Platform with, or incorporate the Insight Connected Platform in, any other programs; (e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Insight Connected Platform; (f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Insight Connected Platform; (g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Insight Connected Platform, or any features or functionality of the Insight Connected Platform, to any third party (other than Subscriber’s franchisees or Subscriber’s employees and agents acting on their behalf) for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, platform as a service, cloud, or other technology or service; (h) use the Insight Connected Platform in violation of any law, regulation, or rule; (i) use the Insight Connected Platform for purposes of competitive analysis of the Insight Connected Platform, the development of a competing Insight Connected Platform product or service, or any other purpose that is to Insight's commercial disadvantage; or (j) use the Insight Connected Platform in a manner that is disruptive to, adversely impacts or causes a malfunction to Insight’s network or systems or the Insight Connected Platform itself.
2.2. Not for Use In Critical Applications. Subscriber and its Users may not use the Insight Connected Platform in, or in association with the following, except as a supplemental tool that is not relied upon by Subscriber or User or its agents: (a) the design, construction, maintenance, or operation of any hazardous environments or systems, including but not limited to power generation systems, aircraft navigation or communication systems, air traffic control systems, or any other transport management systems; (b) safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; (c) health or food safety or to prevent injury, illness or death by itself or in combination with other programs, or in a way that could pose risk to health or life; and (d) military or aerospace applications, weapons systems, or environments. You acknowledge that the Insight Connected Platform™ solution is not a medical device and is not intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease.
3. Liability for Use of Insight Connected Platform
3.1. Subscriber Liability. Subscriber is responsible and liable for all actions or failures to take required actions with respect to the Insight Connected Platform, including by its Users or in connection with collecting Subscriber Data or providing access to or use of the Insight Connected Platform, whether such access or use is permitted by or in violation of these ToS, including any claims by Subscriber’s customers. In the event Subscriber becomes aware that the Insight Connected Platform is being used in a manner not authorized by these ToS, Subscriber shall immediately notify Insight orally and in writing of such facts and use its best efforts to stop such unauthorized use immediately.
3.2. Subscriber Responsibilities. Subscriber and its Users acknowledge (a) except to the extent set forth in any separate managed service offering between Subscriber and Insight, Subscriber and its Users shall be solely responsible for all Subscriber Data that is collected, input, disclosed or used in connection with the Insight Connected Platform, including, but not limited to Subscriber Data, third party information and personal information entered into the Insight Connected Platform; (b) the inherent risk of compromising Subscriber Data when sharing or transferring Subscriber Data electronically, and accept those risks; (c) that Subscriber and its Users must comply with all applicable local, state and federal laws, rules, regulations and requirements, including without limitation obtaining all necessary consents, and making all necessary privacy disclosures to Subscriber's Users and others who may have their personal information and/or images collected by or entered into the Insight Connected Platform, including Subscriber’s customers; and (d) improper use of the Insight Connected Platform may increase the risk of the inadvertent disclosure of compromising information. In all cases, Subscriber is responsible for determining if and how the Subscriber needs to comply with the applicable laws, rules or regulations, and if the Subscriber needs to obtain any permits before the Subscriber or Users use the Insight Connected Platform.
4. Intellectual Property Rights and Ownership over Subscriber Data
4.1. Insight Connected Platform. Subscriber and its Users acknowledge and agree that Insight and its licensors own all right, title, and interest in and to all intellectual property rights (including all derivatives or improvements thereof and all trademark, copyright, and patent rights) in the Insight Connected Platform, which is Insight’s proprietary solution (hereinafter, “Insight Connected Platform™ IP”), except to the extent of any algorithms that are uniquely created for Subscriber using its confidential information. The Insight Connected Platform™ IP is provided under limited use rights, not sold. Subscriber and Users shall safeguard the Insight Connected Platform, including the Insight Connected Platform™ IP, from misappropriation, theft, misuse, or unauthorized access. Subscriber and Users assign to and agree that Insight shall own and have the right to exploit and include in the Insight Connected Platform™ IP and related Service any suggestions, enhancements requests, feedback, recommendations, or other information provided by Subscriber or Users. The trademarks used in connection with the Insight Connected Platform are trademarks of Insight or its affiliates, or those of third parties. No right of ownership, expressed or implied, in the Insight Connected Platform™ IP, is granted under these ToS.
4.2 Subscriber Data Ownership Rights, Export, Access and Intellectual Property Rights. Subscriber owns all right, title and interest in any Subscriber Data and to Subscriber’s own trademarks and other intellectual property rights. During the Term, Subscriber grants Insight and its authorized agents the limited right to collect, store and use the Subscriber Data and to use Subscriber’s trademarks or logos as necessary to fulfill Insight’s obligations to Client hereunder; and otherwise to enhance the Insight Connected Platform.For so long as Subscriber maintains an Insight Connected Platform™ Subscription, Subscriber and its Users shall have the right to view and utilize the Subscriber Data that is accessible using the Insight Connected Platform. Once Subscriber’s Insight Connected Platform™ Subscription ends, Subscriber and its Users shall no longer be able to access such Subscriber Data. Depending on Subscriber’s systems, Subscriber may be able to export Subscriber Data during and/or before the end of its Insight Connected Platform™ Subscription. Upon request by Subscriber, Insight shall provide a fee and/or cost estimate associated with such transfer of Subscriber Data, if any. Subscriber agrees to make any request for export of Subscriber Data at least thirty (30) days prior to termination. Insight shall have no obligation to maintain any Subscriber Data after the Insight Connected Platform™ Subscription ends.
5. Term; Termination/Suspension Rights; Effect
5.1. Term. The Term of these ToS shall be concurrent with Subscriber’s separate Insight Connected Platform™ Subscription with Insight and shall be subject to termination rights and obligations as set forth in that Insight Connected Platform™ Subscription, and otherwise as set forth below.
5.2. Suspension/Termination. Insight reserves the right to suspend access and/or use of the Insight Connected Platform or terminate access to the Insight Connected Platform if Insight reasonably believes that Subscriber or Users are using the Insight Connected Platform, and/or any Third Party Materials or other materials or services provided by Insight, not in accordance with these ToS or applicable laws, rules and government regulations.
5.3. Availability of Connected Platform. The Insight Connected Platform is provisioned in the cloud using a third party cloud provider. Should the cloud provider’s services become unavailable, Subscriber and its Users will not be able to access the Insight Connected Platform. Subscriber agrees that Insight shall not be liable to Subscriber, its Users or to any other third party for any suspension or inability to access the Insight Connected Platform.
5.4. Effect. Upon termination or expiration of Subscriber’s separate Insight Connected Platform™ Subscription or these ToS, Insight has the right to shut off access to the Insight Connected Platform. Subscriber and Users shall also be obligated to immediately discontinue use of the Insight Connected Platform and destroy all copies of any content relating to the Insight Connected Platform (not including Subscriber Data) in Subscriber's and Users' possession or control. Termination or expiration shall not relieve Subscriber or Users of obligations that were incurred prior to termination or expiration or that by their nature or term survive, including all payments due under any applicable subscriptions.
6. Warranty Disclaimer
SUBSCRIBER AND USERS ACKNOWLEDGE THAT INSIGHT CANNOT ENSURE CONTINUOUS AVAILABILITY OF DATA FROM OR ACCESS TO THE INSIGHT CONNECTED PLATFORM OR ANY THIRD PARTY MATERIALS, DEVICES, PRODUCTS OR SERVICES.
INSIGHT DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD PARTY MATERIALS, DEVICES, PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION THIRD PARTY HOSTING, CLOUD AND OTHER SERVICES. IN ADDITION, THE INSIGHT CONNECTED PLATFORM IS PROVIDED "AS IS" AND “AS AVAILABLE” WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, INSIGHT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE INSIGHT CONNECTED PLATFORM, THIRD PARTY MATERIALS, DEVICES, PRODUCTS OR SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
7. LIMITATION OF LIABILITY
7.1. No liability to Subscriber’s Users or Customers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL INSIGHT HAVE ANY LIABILITY TO SUBSCRIBER’S USERS OR SUBSCRIBER’S CUSTOMERS.
7.2. Limited Liability to Subscriber. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL INSIGHT’S AGGREGATE MAXIMUM LIABILITY FOR DAMAGES IN RELATION TO OR ARISING FROM THESE TOS OR THE INSIGHT CONNECTED PLATFORM EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO INSIGHT FOR THE INSIGHT CONNECTED PLATFORM DURING THE PRECEDING TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
7.3. No Indirect/Special Damages. INSIGHT SHALL NOT BE LIABLE UNDER ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, NOR DAMAGES FOR LOSS OF BUSINESS PROFITS, LOST BUSINESS REVENUE, LOST GOODWILL, OTHER ECONOMIC LOSS, BUSINESS INTERRUPTION, LOSS OF DATA, INCLUDING SUBSCRIBER DATA, BUSINESS INFORMATION AND THE LIKE, ARISING IN ANY WAY OUT OF THESE TOS, ANY TERMS REFERENCED IN THESE TOS, OR THE USE OF OR INABILITY TO USE THE INSIGHT CONNECTED PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.4. Limitations – Applicability. SUBSCRIBER AND USERS UNDERSTAND AND AGREE THAT THE LIMITATION OF LIABILITY SET FORTH IN THESE TOS IS REASONABLE AND THAT INSIGHT WOULD NOT HAVE ENTERED INTO THESE TOS WITHOUT SUCH LIMITATION. SUBSCRIBER AND USERS AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TOS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE. INSIGHT SHALL NOT BE BOUND BY ANY REPRESENTATIONS OR STATEMENTS ON THE PART OF ITS EMPLOYEES OR AGENTS WHETHER ORAL OR IN WRITING OTHER THAN THOSE MADE IN VALID DOCUMENTS DULY SIGNED BY ITS LAWFULLY AUTHORIZED REPRESENTATIVES.
Subscriber shall defend and indemnify Insight for, from, and against any losses, damages, liabilities, penalties, costs, and expenses, including, without limitation, reasonable attorney fees, incurred by Insight or its affiliates or agents in connection with any claims or actions arising out of or resulting from (i) Subscriber’s business, including any claims asserted by Subscriber’s Users (which include Subscriber’s employees, franchisees, and their employees or agents) or Subscriber’s customers; (ii) use or misuse of the Insight Connected Platform by Subscriber or its Users; (iii) Subscriber or User’s failure to comply with applicable law, rules or regulations; (iv) Subscriber or User’s failure to comply with these ToS; (v) Subscriber or User’s willful damage or negligence.
9.1. Contacting Insight. If You wish to contact Insight for matters relating to these ToS, please contact your services representative or write, call or email us as set forth below:
Insight Global Headquarters
6820 S. Harl Ave.
Tempe, AZ 85283
9.2. Contacting Subscriber or Users. If Insight needs to contact Subscriber or its Users, Insight will use the contact information that was provided to us as part of Subscriber’s separate Insight Connected Platform™ Subscription or that was provided by User. Please be sure to promptly advise us of any changes to your contact information. All notices will be deemed delivered on the date shown on the postal receipt or on the courier or email confirmation of delivery.
10.1. This Agreement, as well as the Subscriber’s separate Insight Connected Platform™ Subscription, and any additional terms incorporated by reference in either agreement, represents the complete agreement between Subscriber, on its behalf and on behalf of its Users, and Insight, concerning the Insight Connected Platform, and replaces all previous agreements, memoranda, discussions or negotiations. Any different or additional terms and conditions provided by Subscriber to Insight are considered material alterations, are expressly rejected, and will not be binding upon Insight.
10.2. If any part of these ToS is, for any reason, found to be invalid, illegal, or unenforceable, all other parts will remain in effect. This Agreement, as may be amended in the future by Insight, can be found on the Insight Connected Platform™ dashboard. The revised terms will become effective and apply to the Subscriber and Users within thirty (30) days from posting of the revised terms unless a shorter notice period is provided directly to Subscriber. A delay or failure to exercise or partially exercise any right hereunder does not operate as a waiver, nor will it preclude future exercise of that right or permit or sanction any subsequent breach of any term or condition.
10.3. Insight will not be liable for any failure or delay due to circumstances beyond its reasonable control, including but not limited to acts of nature, acts of government in either its sovereign or contractual capacity, national emergencies, acts of terrorism, transportation delays, labor disturbances, epidemics, work stoppages or loss of electrical power; loss of telecommunications or similar infrastructure.
10.4. No provisions of these ToS are intended or shall be construed to confer upon or give to any person or entity other than Insight and Subscriber any rights, remedies or other benefits.
10.5. This Agreement shall be governed by the laws of the State of Arizona excluding those laws that direct the application of the laws of another jurisdiction. The application to these ToS of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are expressly excluded. Any legal action or proceeding relating to these ToS shall be instituted in a state or federal court in Maricopa County, Arizona, and each party hereby submits to the personal jurisdiction of such courts and waives any defense related to venue or inconvenient forum.
Dated June 8, 2020