Terms of Service

Please read carefully before using our services

INK CONTENT, INC.

Software Agreement

BY PROCEEDING TO (I) ACCESS, USE OR REGISTER TO USE ANY SOFTWARE AS A SERVICE (“SAAS”) SERVICE PROVIDED ON THE INK WEBSITE, (II) SUBSCRIBE FOR ANY SAAS SERVICE PROVIDED ON THE INK WEBSITE, (III) REGISTER AN ACCOUNT FOR ANY SAAS SERVICE ON ANY WEBSITE OWNED OR CONTROLLED BY INK OR (IV) DOWNLOAD, INSTALL OR USE ANY SOFTWARE NECESSARY TO ACCESS OR USE ANY SAAS SERVICE PROVIDED ON THE INK WEBSITE, YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN DO NOT INSTALL ANY SOFTWARE FROM THE INK WEBSITE AND DO NOT REGISTER FOR, ACCESS OR USE ANY SAAS SERVICE PROVIDED ON THE INK WEBSITE. THIS AGREEMENT, SHALL GOVERN YOUR USE OF THE SAAS SERVICES MADE AVAILABLE ON THE INK WEBSITE, INCLUDING ALL PAID AND FREE VERSIONS OF SUCH SERVICE AND SOFTWARE. INK URGES YOU TO CAREFULLY READ THIS AGREEMENT AND ASSESS YOUR USE OF THE SERVICE PRIOR TO REGISTERING FOR, ACCESSING OR USING ANY SERVICE OR MAKING ANY DECISION TO SUBSCRIBE TO A SERVICE.

THIS SOFTWARE AGREEMENT is effective on the date that Customer (as defined below) first subscribes to, registers to use or accesses the Service (the “Effective Date”), is between INK Content, Inc., a Delaware corporation (“INK”), and the person or entity subscribing to, registering to use or accessing a software-as-a-service (the “Customer” or “You”). This Agreement (as defined below) sets forth the terms and conditions whereby INK agrees to provide to Customer for a limited period of time and Customer agrees to acquire from INK a limited subscription to access and use certain Services (as defined below) provided by INK on a software-as-a-service basis via a website owned or controlled by INK (each, a “Site”), together with certain documentation and support services related thereto, including INK’s Smyth online platform (the “Smyth Platform”) that enables Customer to develop their own AI agents (each, a “Customer Agents”) designed to operate with one or more third-party AI tools. Customers may purchase the Services via online marketplaces, such as Amazon Marketplace. This Agreement specifically supersedes and replaces the terms and conditions of all prior agreements between INK and Customer relating to the Service subscribed to hereunder by Customer, including, but not limited to, any shrink-wrap agreements, click-wrap agreements, terms of service or any demo or trial agreements which may accompany the products or which may have been published on any Site, including the Site pursuant to which INK grants access to the Services or which have been previously in force between the parties. Customer hereby acknowledges that use of certain features available in the Smyth Platform and the creation of Customer Agent requires the use of third-party artificial intelligence that are compatible with the Smyth Platform (each, a “Third Party AI Application”) and Customer is solely responsible for subscribing or otherwise validly licensing use of a Third-Party AI Application. INK has no obligation to provide any Third-Party AI Application. In consideration of the mutual promises and agreements contained herein, the parties hereto also agree as follows:

1. DEFINITIONS

(a) “Agreement” means this software as a service subscription agreement, together with all exhibits, schedules, annexes and Order Forms made a part hereof in accordance with the terms of this Agreement and all amendments, modifications, supplements and alterations thereto effected in accordance with the terms of this Agreement.

(b) “AI Functions” mean products or features of the Service that utilize artificial intelligence, machine learning, or similar technologies.

(c) “Confidential Information” means all technical and non-technical information in both tangible and intangible form, including, but not limited to, product design information, software code, technical information, customer information, discounting, cost and pricing information, financial information and the results derived from or methodology employed by Customer in conducting any benchmark testing of the Service or Licensed Software and, in the case of Customer, all Customer Data; provided that the term “Confidential Information” shall not include information which the recipient can show by reasonable proof (i) to have been known by the recipient prior to the time of disclosure by the disclosing party, (ii) to have become part of the public domain through no fault or breach of this Agreement by the recipient, (iii) to have been disclosed to the recipient in good faith by a third party who is not under any obligation of confidence or secrecy to the disclosing party at the time such third party discloses the information to the recipient or (iv) to have been compelled to be produced by a court of competent jurisdiction, provided that the recipient shall first give notice to the disclosing party of any such request or order of the court to give the disclosing party an opportunity to contest or limit said request or order of the court.

(d) “Content” means any data or content, including, but not limited to text, writings, video, audio, photographs, images, graphics, comments, suggestions, personal information or other material delivered by INK through its artificial intelligence (“AI”) content generation tools. INK may limit your access to some or all of the Content at its sole discretion at any time.

(e) “Customer Data” means any information, content, or materials submitted by you, including from Third-Party Services, or for Customer to the Services.

(f) “Error” means any error, defect or omission that (i) is discovered in the Service, (ii) is reproducible and (iii) prevents operation or use of the Service substantially in accordance with the Licensed Documentation.

(g) “Licensed Documentation” means the published user manuals and published instructions that INK makes generally available for the Licensed Software.

(h) “Licensed Material” means the Licensed Software and the Licensed Documentation.

(i) “Licensed Software” means the machine-readable object code version of (i) any software provided by INK that is required to be downloaded and installed on Customer’s local computer in order to access or use the Service, together with all Updates for the Licensed Software that INK releases from time to time, including all Updates released by INK in connection with Support Services pursuant to Section 4 of this Agreement.

(j) “Service” means (i) the online, web-based version of the software service made accessible by INK via a website owned or controlled by INK that are subscribed to by Customer, including associated offline components and third-party applications.

(k) “Subscription Term” means the one (1) year period following the execution and delivery of this Agreement, together with all renewals thereof effected in accordance with the terms of this Agreement.

(l) “Support Services” means the technical support services provided by INK pursuant to Section 4 hereof.

(m) “Third-Party Services” means any third-party service, connection, site, platform, application, software, or integration that interoperates with the Service.

(n) Update” means any revision, enhancement, improvement, or modification to or programming fix for the Service, the Licensed Software or the Licensed Documentation which INK makes generally available, incorporates into and makes a part of the Service, the Licensed Software or the Licensed Documentation and does not separately price or market.

(o) “Usage Information” meansanalytics data, including metadata, relating to the provision, use, and performance of various aspects of the Service, Third-Party Services integrations, and related systems and technologies, including information concerning your use of the various features and functionality of the Service and your INK account and analytics derived therefrom, and configuration data, including field mapping/naming, actions, steps, and structures of products and functionalities.

(p) “Use” means each particular instance the Customer accesses and executes operation of the Service or the Licensed Software.

(q) “User” means those individuals who are authorized by Customer to use the Service, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by INK at Customer’s request) and may include employees, consultants, contractors and agents of Customer, or third parties with whom Customer transacts business for the benefit of Customer.

2. SUBSCRIPTION

(a) License – Subject to the terms and conditions of this Agreement, including, but not limited to the applicable restrictions set forth in Section 2(b) below, and subject further to Customer’s full compliance herewith, INK hereby grants Customer and Customer hereby accepts from INK, a limited, non-exclusive and non-transferable (except as otherwise expressly provided in Section 16(a) below) right and license during the Subscription Term to Use the Service in accordance with the applicable restrictions and conditions contained in this Agreement. Customer’s right to Use the Service during the Subscription Term shall extend to Use by third parties under a written agreement with Customer to provide outsourcing services for Customer’s own internal business operations; provided, that (i) such third parties have agreed in writing to abide by the terms of this Agreement and (ii) Customer shall remain primarily liable for all acts and omissions by such third parties.

(b) Service Usage and Restrictions – Customer acknowledges that access to and use of the Service (i) is limited to use of the Service via a hosted SaaS model and (ii) Customer is required to download and install the Licensed Software on Customer’s systems in order to access and Use the Service. INK hereby grants Customer and Customer hereby accepts from INK, a limited, non-exclusive and non-transferable (except as otherwise expressly provided in Section 16(a) below) right and license during the Subscription Term to Use the Licensed Software solely in connection with Use of the Service and at all times in accordance with the applicable restrictions and conditions contained in this Agreement. Customer further acknowledges that in a hosted SaaS environment, Updates applied by INK to the Service and the Licensed Software shall apply generally to all customers of INK (including Customer) that access and use such Service. INK and Customer hereby agree to the following license restrictions and conditions applicable to the Service under this Agreement:

(i) During the Subscription Term, the Service may be accessed and used by Customer by an unlimited number of Users;

(ii) During the Subscription Term, Customer may Use the Service and execute the Licensed Software via the Service by an unlimited number of Uses; and

(iii) During the Subscription Term, Customer may use the Service to create an unlimited number of Customer Agents for sale or licensing to customers and clients of Customer (each, a “Third Party End-User”).

Customer hereby acknowledges that (A) use of each Customer Agents by a Third Party End-User requires a valid subscription to the Service by either Customer or such Third Party End-User and (B) upon termination of the Subscription Term, each Customer Agent will cease to function or operate unless a Third Party End-User obtains from INK a license to use the Service. Additional User subscriptions may be added during the Subscription Term for a pre-existing User Subscription, prorated for the remainder of the Subscription Term in effect at the time the additional Users are added, and all such additional Users’ subscriptions shall terminate on the same date as the pre-existing User Subscriptions. User Subscriptions are for designated Users and shall not be used or shared by more than one User but may be reassigned to new Users to replace existing Users by Customer providing prior written notice to INK. In no event shall Customer access or use a Service in contravention of the foregoing restrictions applicable to such Service or any other restrictions contained in this Agreement.

(c) Other Covenants – Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify INK promptly of any such unauthorized access or use, and (iv) use the Services and the Content only in accordance with the terms of this Agreement and all applicable laws and government regulations.

(d) Renewal of Subscription Term – Upon expiration of each Subscription Term for a Service, all subscriptions for such Service under this Agreement shall automatically renew for an additional 12-month Subscription Term, and INK will invoice Customer at the then-current subscription-based price for such additional Subscription Term, unless INK is notified by Customer in writing at least thirty (30) days prior to the expiration of such current Subscription Term that Customer elects not to renew the subscription for such Service for an additional Subscription Term.

(e) Other Services – The Service subscribed to by Customer and all Support Services provided in respect thereof shall be governed by this Agreement. Unless otherwise agreed by the parties in writing, all other services purchased by Customer in respect of the Service or Licensed Software, if any, including implementation services, training services and professional services (collectively, “Ancillary Services”), shall be governed solely by a separate written mutually acceptable services agreement entered into by the parties or, in the absence of such agreement, INK’s standard professional services agreement, and acceptance of the Service shall not be contingent upon Customer’s acceptance of any such Ancillary Services.

(f) INK AI Functions – From time to time, INK may include INK AI Functions as part of the Service. “Input” means all information that you submit to INK AI Functions. “Output” means information generated and returned by INK AI Functions based on the Input; provided, Output specifically excludes the Service, Third-Party Services, Documentation and Usage Information. As between the parties and to the extent permitted by law, Inputs and Outputs are deemed to be Customer Data. Other users providing similar Input to INK AI Functions may receive the same or similar Output.

3. REGISTRATION AND PAYMENT TERMS

(a) Registration – To Use each Service, Customer must register with INK by generating a username and password for each User or by log in via third party Oauth service, such as Google (collectively, “Registration”). All passwords shall be personal and non-transferable. INK may require a two-factor authentication. The parties shall treat all passwords and usernames generated for the purpose of Registration as Confidential Information of INK. INK reserves the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable. You are responsible for maintaining the confidentiality of your account.

(b) Payment – Upon delivery of an Order Form by Customer, INK shall deliver an invoice to Customer specifying the subscription fees payable pursuant to such Order Form for the Subscription Term (the “Subscription Fee”). Customer shall pay all Subscription Fees specified therein upon Customer’s receipt of such invoice. In the event that Customer elects to purchase a Service online through use of INK’s website or online store, Customer is required to pay all fees due hereunder with a credit card, and Customer (i) shall provide INK with a valid form of credit card payment at the time of such purchase and to keep all such credit card information current and accurate in respect of all renewal fees, (ii) shall promptly notify INK if its credit card has changed or has been declined and (iii) hereby consents to INK automatically processing and charging all fees due by Customer hereunder as they become due, including all renewal Subscription Fees, to the credit card submitted by Customer. All fees payable by Customer in respect of such Ancillary Services may be separately invoiced. Customer’s payment obligation with respect to all Subscription Fees owing hereunder shall be independent of the provision of Ancillary Services, whether or not such Ancillary Services are separately invoiced. Any late payment of any amount owing hereunder shall accrue interest at a rate equal to the lesser of (i) 15% per annum and (ii) the maximum rate permitted by law. Except as expressly set forth in this Agreement, all Subscription Fees are non-cancellable and non-refundable. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. INK also reserves the right to refuse any Order Form or any order placed through INK’s website or online store.

(c) Taxes – All payments referred to in this Agreement are exclusive of value added tax, sales tax and any other applicable taxes, duties or imposts which (with the exception only of those based on INK’s income) shall also be payable by Customer in accordance with applicable law.

4. SUPPORT SERVICES

INK does not warrant that the Service will operate error-free or may be used error-free or that the Service will be accessible at all times. During the Subscription Term INK shall provide Support Services to Customer at no additional fee. All Customer Agents are expressly excluded from Support Services and INK shall have no obligation to troubleshoot or repair any defect or error occurring in any Customer Agents developed by Customer using the Smyth Platform. INK shall (i) make the Service available in accordance with the Service Level Agreement available on INK’s website (as in effect from time to time, the “SLA”), and (ii) provide Support Services in accordance with this Section 4. INK or its authorized representative will provide Support Services for the Service during each Subscription Term. Support Services includes problem determinations, reasonable problem resolutions, provisioning of software program temporary fixes and new releases. Support Services shall entitle Customer to receive, at no additional cost, all Updates that are applied generally to the Service. INK shall maintain the right to update the Service at any time without notice to Customer.

5. PROPRIETARY RIGHTS and IMPROVING THE SERVICE

(a) Customer acknowledges and agrees that, as between Customer and INK, INK, its subsidiaries and affiliates and its licensors own and shall continue to own all right, title, and interest in and to the Service, the Licensed Material, all Confidential Information of INK and all derivatives of each of the foregoing, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant Customer any ownership interest in or to the Service or any Licensed Material, but only a limited right and license to Use the Service and the Licensed Materials during the Subscription Term in accordance with the terms of this Agreement and each applicable Order Form. Customer shall not acquire, by virtue of this Agreement, any right or license other than as expressly provided herein. Customer shall promptly notify INK of any infringement of INK’s proprietary rights of which it becomes aware.

(b)– Customer shall retain ownership of all rights, title and interest in and to all Customer Data and all Customer Agents developed by Customer using the Smyth Platform. INK shall not (i) modify Customer Data (except in connection with execution of the documented functions of the Service), (ii) disclose Customer Data to any third party, except as required by law or as otherwise permitted by this Agreement or (iii) access or use Customer Data except (A) in connection with the provision of the Services, (B) in accordance with Section 13, (C) to prevent or address failure of the Service or technical problems, or (D) at Customer’s request in connection with Support Services.

(c) Customer acknowledges that INK is not liable for the Content output of its AI tools, specifically, INK is not liable for factual inaccuracies in the Content and/or violation of third-party intellectual property rights relating to Customer Content or Content generated by any AI tools or for any statements or representations in Customer Content in any area on the Site. Customer also agrees that it will not assert copyright ownership over Content generated by INK AI tools. Customer shall review all Content and approve such Content before its use. Customer agrees that INK may access, store, process, and use any information and Content that that Customer provides solely in accordance with the terms of INK Privacy Policy.

(d) Customer Compliance Obligations: Customer shall be solely responsible for the accuracy, quality, content, and legality of Content, and any actions triggered by Customer Content. You represent and warrant that: (i) you have obtained all necessary rights, releases, and permissions to transmit Customer Content through the Service and for any actions triggered by Customer Content on the Service, and to otherwise use, process, and/or store Customer Content on the Service used or stored; and (ii) Customer Content, and its transmission, processing, storage, and use as you authorize in this Agreement or through your INK account will not violate any laws or regulations, this Agreement, or the terms of any applicable Third-Party Service.

(e) Improvements: To be clear, if you provide feedback, INK may use it without restriction or compensation to you. Notwithstanding anything to the contrary set forth herein or otherwise, (i) INK may collect, analyze, and use Usage Information, to operate, enhance, improve, and develop INK products or services, including through model training, and otherwise in connection with our business; (ii) INK may derive de-identified data sets from your Customer Content (“Derived Data”) and may use such Derived Data to operate, enhance, improve, and develop INK products or services, including through model training. You may opt out of providing INK with such permission for Derived Data by submitting this opt-out form; and (iii) if you are a subscriber to a subscriber to the Commercial Version, your INK account and all users on your INK account are automatically opted out from Derived Data sets.

6. LIMITED WARRANTIES

(a) Warranty by INK – INK warrants to Customer that during the Subscription Term (the “Warranty Period”) (i) the Service and the Licensed Software will perform substantially as described in the accompanying Licensed Documentation and (ii) the Service will be accessible by Customer via the internet in accordance with the SLA. INK does not warrant that (A) the Service or Licensed Software will satisfy or may be customized to satisfy any of Customer’s requirements or any other particular use or (B) the Use of the Service or Licensed Software will be uninterrupted or error-free. Laws from time to time in force may imply warranties that cannot be excluded or can only be excluded to a limited extent. This Agreement shall be read and construed subject to any such statutory provisions.

(b) Performance Remedies – If at any time during the Warranty Period, INK breaches the warranty set forth in Section 6(a)(i) above, then Customer shall promptly notify INK of such Error or breach and INK shall (A) use all commercially reasonable efforts to correct such Error or breach within thirty (30) days of notification or (B) provide Customer within thirty (30) days of notification with a plan reasonably acceptable to Customer for correcting such Error or breach. If such Error or breach is not corrected or if a reasonably acceptable plan for correcting such Error or breach is not established within such thirty (30) day period, Customer may terminate its subscription to such defective Service and INK shall refund to Customer the pro rata portion of all pre-paid Subscription Fees actually paid by Customer for the defective Service in respect of the remaining portion of the current Subscription Term. Customer acknowledges that this Section 6(b) sets forth Customer’s sole and exclusive remedy, and INK’s and its authorized representatives’ sole and exclusive liability, for any breach of warranty set forth in Section 6(a)(i) above.

(c) Availability Remedies – If at any time during the Warranty Period, INK breaches the warranty set forth in Section 6(a)(ii) above, then Customer shall notify INK in writing of such breach within thirty days of the occurrence of such breach and INK shall issue Customer a service level credit in accordance with the terms of the SLA (each, a “Service Credit”). Customer acknowledges that this Section 6(c) and the Service Credit issued pursuant to the SLA sets forth Customer’s sole and exclusive remedy, and INK’s and its authorized representatives’ sole and exclusive liability, for any breach of warranty set forth in Section 6(a)(ii) above, including any failure of the Service to be available in accordance with the terms of the SLA.

(d) Representations and Warranties by Customer– Customer warrants to INK that Customer shall not (i) Use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any applicable law or in violation of any third party’s intellectual property rights, (ii) Use the Service to transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, (iii) attempt to gain authorized access to the Service or its related systems or networks or (iv) share User accounts or passwords with any person or entity other than the User designated pursuant to Registration. Customer hereby represents and warrants to INK that it has, and shall continue to have during the Subscription Term, all rights, licenses, consents and permissions required by applicable law to upload to the Service, and process and transmit using the Service, all data (including all Customer Data) uploaded to the Service by Customer or its authorized users. Customer understands that INK may provide Customer with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast Content to INK or on the Site. Content may be viewable by others users of the Site and through third-party websites. As such, any Content Customer transmit may be treated in accordance with the Site Privacy Policy. Customer, therefore, agrees that when it creates, uses or makes available any Content, Customer thereby represents and warrants that:

  • The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of the Content does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
  • Customer is the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize INK, the Site, and other users of the Site to use the Content in any manner contemplated by the Site and this Agreement.
  • Customer has the written consent, release, and/or permission of each and every identifiable individual person in its Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of its Content in any manner contemplated by the Site and this Agreement.
  • Customer Content is not false, inaccurate, or misleading.
  • Customer Content is not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
  • Customer Content is not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by INK).
  • Customer Content does not ridicule, mock, disparage, intimidate, defame, disparage, harass or abuse anyone.
  • Customer Content is not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people. In addition, for any use intended to or which has the effect of discriminating against or harming individuals or groups based on online or offline social behavior or known or predicted personal or personality characteristics.
  • Customer Content does not violate any applicable national, federal, state, local or international law, regulation, or rule.
  • Customer Content does not violate the privacy or publicity rights of any third party. For instance, it does not generate or disseminate personal identifiable information that can be used to harm an individual
  • Customer Content do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner.
  • Customer Content does not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
  • Customer Content does not include any offensive comments that are connected to age, race, national origin, gender, social, sexual preference, or physical or mental characteristics, in order to materially distort the behavior of a person pertaining to that group in a manner that causes or is likely to cause that person or another person physical or psychological harm. In addition, it does not generate or disseminate verifiably false information and/or content with the purpose of harming others.
  • Customer Content does not otherwise violate, or link to material that violates, any provision of this Agreement, or any applicable law or regulation.
  • Customer acknowledges to INK that Customer shall not use the Content:
    • For fully automated decision making that adversely impacts an individual’s legal rights or otherwise creates or modifies a binding, enforceable obligation.
    • For any use intended to or which has the effect of discriminating against individuals or groups based on legally protected characteristics or categories.
    • To provide medical advice and medical results interpretation.
    • To generate or disseminate information for the purpose to be used for administration of justice, law enforcement, immigration or asylum processes, such as predicting an individual will commit fraud/crime commitment (e.g. by text profiling, drawing causal relationships between assertions made in documents, indiscriminate and arbitrarily-targeted use).

Any use of the Site in violation of this Section 6 violates this Agreement and may result in, among other things, immediately termination or suspension of the Customer rights to use the Site and the Services. Customer is solely responsible for its Content to the Site and it expressly agrees to exonerate INK from any and all responsibility and to refrain from any legal action against INK regarding its Content. Customer acknowledges and agrees with the use-based restrictions stated in Section 6(d) and that your usage of the Content is subject to these use-based restrictions.

(e) Abuse Usage. Customer agrees that the following actions violate this Agreement; therefore, Customer shall not (1) make the Services available to any third party other than Users permitted under this Agreement, (2) sell, resell, rent or lease the Services, (3) use the Services or the Content to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store, process or transmit material in violation of any privacy law or in violation of any third party’s intellectual property rights, (4) use the Service to transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs, (5) attempt to gain unauthorized access to the Service or its related systems or networks, (6) use bots in connection with Use of the Service or copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for its own internal business purposes, (7) intentionally interfere with or disrupt the integrity or performance of the Services, Content or data contained therein, (8) systematically retrieve data or other Content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from INK, (9) circumvent, disable, reverse engineering, direct API usage or otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or the Content contained therein, (10) engage in unauthorized framing of or linking to the Site, (11) engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools, (12) use any information obtained from the Service and/or Content in order to harass, abuse, or harm another person, (13) harass, annoy, intimidate, or threaten any of INK employees or agents engaged in providing any portion of the Service to you, (14) except as may be the result of standard search engine or internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software. INK reserves the right to change rate limit on an individual basis for the number of words, Content, documents or usage volume that may be checked by Customer through Use of the Service at any time and to suspend Customer’s Use of the Service if any Use by Customer (x) violates any of the provisions of Sections 2(b) and 2(c); (y) does not comply with the restrictions applicable to each Service; and (z) materially impairs Use of the Service by other customers or users.

(f) Disclaimer – EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SITE, AND ALL CONTENT PROVIDED ON OR THROUGH THE SITE OR THROUGH A THIRD-PARTY SITE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. INK EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SERVICE AND THE LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY INK OR ITS AUTHORIZED REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN AND DISCLAIMED.

7. INDEMNITY

(a) Indemnity by INK – Subject to this Section 7 and Section 8 below, INK agrees during the Subscription Term to indemnify, defend and hold harmless Customer from and against all claims, damages, losses, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of any claim by a third party asserting that the Licensed Material or Customer’s Use of the Service, infringes upon any third party’s patent, copyright or trademark, provided that (i) Customer promptly notifies INK in writing no later than thirty (30) days after Customer’s notice of any potential claim, (ii) Customer permits INK to defend, compromise or settle the claim, and provided further that no settlement intended to bind Customer shall be made without Customer’s prior written authorization and (iii) Customer gives INK all available information, reasonable assistance, and authority to enable INK to do so.

(b) Alternative Remedy – If a claim described in Paragraph 7(a) may or has been asserted, Customer will permit INK, at INK’s option and expense, to (i) procure the right to continue using the Service and the Licensed Material during the current Subscription Term, (ii) replace or modify the Service and/or Licensed Material to eliminate the infringement while providing functionally equivalent performance or (iii) terminate the Service and refund to Customer the pro rata portion of all pre-paid Subscription Fees actually paid by Customer for such Service in respect of the remaining portion of the current Subscription Term.

(c) Limitation – INK shall have no indemnity obligation to Customer hereunder if the violation or infringement claim results from (i) any Customer Data or other material uploaded, processed or transmitted by Customer through use of the Service or (ii) continuing the allegedly infringing activity after receiving written notice of such infringement claim from INK.

(d) Indemnity by Customer – Customer shall indemnify and defend INK and its Affiliates from and against, and INK and its Affiliates hold harmless from, all claims, damages, losses, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of any claim by a third party asserting that any Customer Data, Content or other material uploaded to, or processed or transmitted using, the Service infringes upon any third party’s patent, copyright or trademark or that Customer’s or any User’s use or processing of any Customer Data and/or Content violates any applicable law, provided that (i) INK promptly notifies Customer in writing no later than thirty (30) days after INK’s notice of any potential claim, (ii) INK permits Customer to defend, compromise or settle the claim, and provided further that no settlement intended to bind INK shall be made without INK’s prior written authorization and (iii) INK gives Customer all available information, reasonable assistance, and authority to enable Customer to do so.

(e) Exclusive Remedy – This Section 7 states each party’s sole liability to the other party, and the other party’s sole and exclusive remedy against, such party for any claims described in this Section 7.

8. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES WILL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR ANY OF THEIR RESPECTIVE AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS BY THE OTHER PARTY OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE LICENSED MATERIALS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL PROPERTY RIGHT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR PROCEEDING BY INK, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE AUTHORIZED REPRESENTATIVES EXCEED (I) IN THE CASE OF ANY COMMERCIAL VERSION, THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC SERVICE THAT DIRECTLY CAUSED THE DAMAGE DURING THE THEN-CURRENT SUBSCRIPTION TERM AND (II) IN THE CASE OF ANY FREE VERSION, ONE HUNDRED DOLLARS.

9. CONFIDENTIALITY

(a) Confidentiality. – Customer acknowledges that the Service and the Licensed Materials incorporate confidential and proprietary information developed or acquired by or licensed to INK and that all results of testing of the Service or Licensed Software, whether performed by Customer or another third party, are confidential. In no event will Customer publish or disclose the results of any testing or performance specifications of the Service or the Licensed Software without INK’s express prior written consent. A party that receives Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) shall not: (i) export or re-export (within the meaning of US laws or other export control laws or regulations) any Confidential Information, except in strict compliance with US laws; (ii) reverse engineer any Confidential Information; or (iii) disclose or make available the Disclosing Party’s Confidential Information to any of the Receiving Party’s employees, agents, contractors or consultants or to any third parties, except those that have agreed in writing to be bound by terms and conditions substantially similar to, and no less restrictive with respect to limitations on use and disclosure, than those contained in this Agreement and each of which have a “need to know” in order to carry out the purposes set forth in this Agreement. Each party shall take all reasonable precautions necessary to safeguard the confidentiality of all Confidential Information disclosed by the other party, including those precautions (A) taken by the disclosing party to protect its own Confidential Information and (B) which the disclosing party or its authorized representative may reasonably request from time to time. Neither party shall allow the removal or defacement of any confidentiality or proprietary notice placed on the Confidential Information disclosed by the disclosing party. The placement of copyright notices on Confidential Information shall not constitute publication or otherwise impair their confidential nature of such information.

(b) Unauthorized Disclosure – If an unauthorized use or disclosure of the disclosing party’s Confidential Information occurs within the recipient party’s enterprise, the recipient party will immediately notify the disclosing party or its authorized representative and take, at recipient party’s expense, all steps which may be available to recover such Confidential Information and to prevent its subsequent unauthorized use or dissemination.

(c) Compelled Disclosure – If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

10. TERMINATION

Upon 30-days prior written notice to INK, Customer may terminate this Agreement and all subscriptions purchased hereunder; provided, however, that Customer shall not be entitled to any refund or credit (except as otherwise expressly set forth in this Agreement) of any amounts paid by Customer or a release from or cancellation, waiver or novation of any amounts payable or promised to be paid by Customer hereunder for the then-current Subscription Term and all such amounts payable or promised to be paid by Customer in respect of the remaining portion of the current Subscription Term shall automatically accelerate, become immediately due and payable and shall survive termination of this Agreement. If Customer or any of Customer’s employees, consultants, authorized representatives or permitted third parties breach any term or condition of this Agreement, INK may terminate this Agreement, without judicial or administrative resolution or obligation to refund and all amounts payable or promised to be paid by Customer in respect of the remaining portion of the current Subscription Term shall automatically accelerate, become immediately due and payable and shall survive termination of this Agreement. This Agreement will terminate automatically (i) upon expiration or termination of all Subscription Terms hereunder, or (ii) if Customer ceases to do business, becomes insolvent, goes or is put into receivership or liquidation, passes a resolution for its winding up (other than for the purpose of reconstruction or amalgamation) or for any of the foregoing, makes an arrangement for the benefit of its creditors, enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors’ rights or takes or suffers any similar action in consequence of debt. Upon the termination of this Agreement for any reason, all rights granted to Customer hereunder will cease, and Customer will cease accessing or Using the Services. The provision of Sections 1, 3, 8 through 15 and 17 shall survive the termination of this Agreement. Promptly upon request by Customer made within fifteen (15) days after the effective date of any termination, INK will make available to Customer for download a file of any Customer Data stored in the Services as of the date of such termination in comma separated value (.csv) format or such other standard format supported by INK. After such 15-day period, INK may delete all Customer Data in systems or otherwise in its possession or under its control.

11. U.S. EXPORT RESTRICTIONS

Customer acknowledges that the Licensed Software and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations. Customer covenants and agrees to comply with all import and export control regulations of the United States with respect to the Licensed Software. Customer acknowledges that it may not re-export or divert the Licensed Software or any related technical information, document or material, or direct derivatives thereof, to any country set forth on the U.S. Department of Commerce’s list of State Sponsors of Terror (currently, Iran, North Korea, Sudan and Syria), including any future changes to the government’s list of State Sponsors of Terror.

12. EQUITABLE RELIEF

The parties recognize that Sections 5, 9, 11 and 13 are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose. The parties agree that any breach of such Sections would cause the other party substantial and irreparable damage and therefore, in the event of any such breach, in addition to other remedies which may be available, the non-breaching party shall have the right to seek specific performance and other injunctive and equitable relief in a court of law.

13. REPORTING & AUDIT

INK reserves the right to gather data regarding Use by Customer of the Service, including data regarding the number of words or documents checked or processed, server IP addresses, email addresses of Users, domain counts and other information deemed relevant, to ensure that the Service is being Used in accordance with the terms of this Agreement. Customer hereby consents to INK gathering and processing such Use information and agrees not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any unauthorized use of the Service or the Licensed Material by Customer or other use by Customer in violation of the restrictions contained in this Agreement shall be deemed a material breach of this Agreement. In addition to the foregoing, within ten (10) business days of Customer’s receipt of INK’s written request, Customer shall provide to INK a written report certifying to INK the number of Users and the amount of Use (for purposes of Per-Use Subscriptions) for each Service subscribed to by Customer, the identity of the Users and applicable servers, hardware or computers from which such User Use the Service, in each case for the time period so specified in INK’s written request, together with such other information as may be requested by INK and necessary to confirm Customer’s compliance with the terms of this Agreement. The auditing, reporting and certification rights and obligations set forth in this Section 13 shall survive termination of this Agreement for a period of eighteen months. For more information about our data collection, usage and retention practices, please review our Privacy Policy.

14. ENFORCEABILITY

If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, void, invalid or illegal, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

15. ENTIRE AGREEMENT

(a) Customer acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms. Customer and INK further agree that, subject to clause (b) below, this Agreement, together with all Order Forms delivered in connection herewith and all exhibits, schedules and annexes hereto, is the complete and exclusive statement of the agreement between Customer and INK and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement, including any shrink-wrap agreements, click-wrap agreements or demo or trial agreements which may accompany the Licensed Material or which may have been previously in force between the parties. Subject to clause (b) below, this Agreement may not be amended, modified, supplemented, or altered except by a written agreement that is signed by both parties.

(b) UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS AGREEMENT OR ANY INK ORDER FORM BE AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, SUPERSEDED OR REPLACED BY ANY NON-INK INVOICE OR NON-INK ORDER FORM OR OTHER SIMILAR INSTRUMENT DELIVERED BY CUSTOMER TO INK. EACH PARTY ACKNOWLEDGES AND AGREES THAT, SOLELY AS A CONVENIENCE TO CUSTOMER AND ONLY FOR CUSTOMER’S INTERNAL ACCOUNTING PROCEDURES, CUSTOMER MAY DELIVER TO INK A CUSTOMER INVOICE OR CUSTOMER ORDER FORM OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION CONTEMPLATED HEREUNDER AND THAT NO ACTION BY INK, INCLUDING INK’S PROVISION OF ANY SERVICE OR ACCEPTANCE OF PAYMENT, SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONS CONTAINED IN SUCH CUSTOMER INVOICE OR CUSTOMER ORDER FORM OR OTHER SIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS ACCEPTED BY INK PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES.

16. INTENTIONALLY OMITTED

17. THIRD PARTY PLUGIN

The Customer may download additional components or plugins from a third party that are intended to operate with the Service (each, a “Third Party Component”), regardless if it is a proprietary source code (or binary code) or an open source code (or binary code). INK is not the publisher or copyright owner of any Third Party Component. As such, INK does not make any assurances regarding any Third Party Component or its compliance with U.S. laws or applicable export regulations. Each Third Party Component is governed by its own license agreement. INK hereby expressly disclaims all liability obligations (including providing any type of support) relating to any Third Party Component downloaded by Customer using the Service. Customer usage of a Third Party Component is at its own risk. INK uses artificial intelligence (“AI”) to generate content based on the information you provide, either alone or in combination with other information. This process, known as “Generative AI”, may involve our own AI model or third-party models. When we use Generative AI as an enhancement, feature, function, or tool with our products and services (“AI Tools”), we will inform you and provide the option to opt-in. We will not automatically use your information for Generative AI purposes without your consent. Should you choose to opt-in, you can change your decision at any time. If you decide not to opt-in, please be aware that you may not experience the full capabilities of our products and services.

INK urges users to exercise caution when relying on content generated by AI. Generative AI content is created by a predictive model based on the prompts it receives. This model is not sentient and does not provide guaranteed accurate answers; it simply makes predictions based on language patterns. Please be aware that INK does not review or verify Generative AI content before it is delivered to you. Consequently, INK cannot ensure the accuracy or reliability of any Generative AI output. Users assume all risks associated with using this content and should conduct their own due diligence before relying on it.

BY USING ANY AI APPLICATION PROVIDED BY INK, YOU ACKNOWLEDGE AND AGREE THAT INK IS NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM YOUR USE OF GENERATIVE AI CONTENT, WHETHER PRODUCED BY OUR AI MODEL OR A THIRD-PARTY MODEL. IT IS IMPERATIVE THAT YOU PERFORM YOUR OWN DUE DILIGENCE.

18. DATA SECURITY AND DATA PRIVACY

(a) To the extent applicable, the Data Processing Agreement shall be incorporated by this reference as Exhibit 1 to this Agreement. INK Privacy Policy is an integral part of this Agreement and is expressly incorporated by this reference, and by entering into this Agreement you agree to (i) all of the terms of the Privacy Policy, and (ii) INK’s use of data as described in the Privacy Policy is not an actionable breach of your privacy or publicity rights.

(b) INK will maintain appropriate administrative, technical, and physical safeguards designed to ensure the security, integrity and confidentiality of Customer Data, including without limitation: (i) transmission of Customer Data only over encrypted connections over the internet, (ii) security measures and procedures designed to ensure that access to Customer Data by INK is limited to personnel who need access in order to provide the Service, (iii) hosting the Service at third party data centers and/or storage providers operating in certified facilities, using a physically security environment with access restrictions designed to permit physical access only to authorized individuals, (iv) maintaining appropriate backup and recovery measures for Customer Data, and (v) regular updates and patching of operating systems, firewalls and anti-virus software on servers where Customer Data is hosted and processed.

19. MISCELLANEOUS

(a) Customer shall not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, whether by contract, merger or operation of the law, without INK’s prior written consent. In the event of any merger of Customer or a sale of substantially all of the assets of Customer in which Customer is not the surviving entity, Customer may assign or transfer any licenses granted under this Agreement without INK’s prior written consent; provided, that Customer provides INK with written notice of such transfer within thirty days of such merger or sale. Any assignment or delegation in breach of this Section 19(a) shall be void. This Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.

(b) The waiver of compliance with or breach of any term or condition of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other failure to comply or breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement. Unless otherwise specified herein, the rights and remedies of INK set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

(c) THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. INK AND CUSTOMER HEREBY IRREVOCABLY AGREE ON BEHALF OF THEMSELVES THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN AN APPROPRIATE FEDERAL OR STATE COURT IN THE STATE OF TEXAS LOCATED IN HARRIS COUNTY.

(d) Unless otherwise specified herein, the rights and remedies of INK set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

(e) This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of business organization or agency relationship.

(f) Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement. This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto.

[END OF AGREEMENT]

 

Stay Ahead
Subscribe To Our Newsletter For Top Stories & Exclusive Offers!