Last Updated: December 1, 2018
These Enterprise Terms may be revised from time to time and by any applicable policies and guidelines (“Terms”). When we update these Terms we will post the updated Terms at https://www.inkit.io/enterprise-terms and update the “Last Updated” date to indicate the date of the most recent version. We encourage you to review these Terms periodically.
The following terms, when used in this Agreement will have the following meanings:
- “Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure, and including any Personally Identifiable Information. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
- “Customer Content” means content and other material supplied or made available to Inkit by Customer or Customer’s end users through the use of or access to the Inkit Services.
- “Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Inkit for the Inkit Services.
- “Order Form” means an Order Form that sets for the specific Inkit Services and pricing therefor. The initial Order Form is set forth on the cover page of this Agreement. Any subsequent Order Forms must reference this Agreement and be mutually executed by the parties.
- “Inkit Technology” means the Inkit website, Inkit APIs, Documentation, code samples and technical support that may be made available by Inkit to Customer in connection with the Services.
- “Inkit Services” or “Services” means the printing and mailing services, Web-based services, programs, functions and platform provided by Inkit to Customer (including, without limitation, the Inkit Technology), and subsequent updates or upgrades of any of the foregoing made generally available by Inkit.
- “Personally Identifiable Information” means any information provided by Customer to Inkit that specifically identifies an individual, or that is otherwise defined as ‘personal data’ or ‘personal information’ by applicable laws or regulations relating to the collection, use or disclosure of information about an identifiable individual.
2. Inkit Services
2.1 Provision of Services. Subject to the terms and conditions of this Agreement and the Inkit Acceptable Use Policy (available at https://www.inkit.io/legal/acceptable-use), Inkit will use commercially reasonable efforts to make the Inkit Services available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Inkit Technology for Customer’s use of the Inkit Services to print and send the mailpieces that are the subject of an Order Form, including the right to write and execute software applications or websites (“Customer Applications”) that interface with the Inkit Services.
2.2 Customer Limitations. The rights granted in Section 2.1 are subject to the following restrictions:
(a) Customer will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code underlying the Inkit Services;
(b) Except for Customer Applications that use the Inkit Services, Customer will not transfer, resell, lease, license, or assign Inkit Services or otherwise offer the Inkit Services on a standalone basis;
(c) Customer will not (nor will it permit any third party to) use Inkit Services or Inkit Technology in any manner that violates Inkit’s Acceptable Use Policy (or any other term of this Agreement); and
(d) Customer will not otherwise use the Inkit Services or Inkit Technology outside the scope expressly permitted hereunder and in the applicable Order Form.
2.3 Support; Service Level Agreement. Inkit will use commercially reasonable efforts to respond to any support questions from Customer within two (2) business days. The terms of all Inkit Service Level Agreements (available at https://www.inkit.io/legal) are also incorporated herein by reference. If there is any conflict between the terms of this Agreement and any Inkit Service Level Agreement, the terms of the Inkit Service Level Agreement will control.
2.4 Customer Responsibilities. Customer will (a) be responsible for all use of the Inkit Services and Documentation under its account (whether or not authorized), (b) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and Customer Application(s), and (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Inkit Services and Documentation and notify Inkit promptly of any such unauthorized access or use.
2.5 API Changes. Customer acknowledges that Inkit may change, deprecate or republish APIs for any Inkit Services or feature of the Inkit Services from time to time, and that it is Customer’s responsibility to ensure that calls or requests Customer makes to the Inkit Services are compatible with then-current APIs for the Inkit Services. Although Inkit endeavors to avoid changes to its APIs or Inkit Services that are not backwards compatible, if any such changes become necessary Inkit will endeavor to notify Customer at least thirty (30) days prior to Inkit’s implementation of any such incompatible changes to the Inkit Service of which it becomes aware.
3.1 Fees. Except as otherwise specified herein (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and fees paid are non-refundable, except in accordance with Section 3.3. In addition, Inkit reserves the right to increase prices based on United States Postal Service (“USPS”) then-current mailing fees.
3.2 Net of Taxes. All applicable federal, state or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, miscellaneous fees, and surcharges, whether charged to or against Inkit, will be payable by Customer. Customer will not withhold any Taxes from any amounts due to Inkit.
3.3 Disputes; Refunds. Customer acknowledges and agrees that, where Inkit has provided Customer with an Intelligent Mail Barcode tracking code for a mailpiece sent via the Inkit Services, Inkit will have no liability for and Customer will not be entitled to a refund, payment or any other remedy in the event the addressee does not receive such mailpiece. If any mailpiece contains a printing or rendering error, Customer must notify Inkit of such error within thirty (30) days of such mailpiece printing in order to qualify for a credit or reimbursement for such mailpiece. Any fee credits or reimbursements will be made in Inkit’s sole discretion.
4. Proprietary Rights and Confidentiality
4.1 Inkit’s Ownership Rights. Inkit exclusively owns all right, title and interest in and to the Inkit Services and Inkit Technology. Except for the express rights granted hereunder, Inkit reserves all rights, title and interests in and to the Inkit Services, Inkit Technology and Inkit’s Confidential Information.
4.2 Inkit Marks. Inkit hereby grants Customer a non-transferable, non-sublicensable, non-exclusive license during the Term of the Agreement to display the trade names, trademarks, service marks, logos, domain names of Inkit (each, a “Inkit Mark”) for the purpose of promoting or advertising that Customer uses the Inkit Services. In using Inkit Marks, Customer may not: (a) display a Inkit Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Inkit; (b) use Inkit Marks to disparage Inkit or its products or services; or (c) display a Inkit Mark on a site that violates any law or regulation. Customer will only use Inkit Marks with Inkit’s prior written consent, which may be withheld or revoked at Inkit’s discretion. Furthermore, Inkit may modify any Inkit Marks at any time, and upon notice, Customer will use only the updated Inkit Marks. Other than as permitted in this Section 4.2, Customer may not use any Inkit Marks without prior written consent. All use of the Inkit Marks will be subject to any trademark usage guidelines that Inkit may publish from time to time, and Customer will conduct its business in a professional manner that reflects favorably on the goodwill and reputation of Inkit.
4.3 Feedback. Customer may from time to time provide Inkit suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Inkit Services. Inkit will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Inkit will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.4 Customer Content. As between the parties, the Customer Content, Personally Identifiable Information and Customer Applications will be owned by Customer. Customer hereby grants to Inkit a non-exclusive, worldwide license to copy, distribute and use Customer Content and Personally Identifiable Information only in connection with providing the Inkit Services. At no point in time will Inkit have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to the loss or deletion of Customer Content or Personally Identifiable Information.
4.5 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose this Agreement, in whole or in part to its employees, officers, directors, attorneys, auditors, financial advisors, actual or potential investors and/or subcontractors who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and as reasonably deemed by a party to be required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 4.5 or Section 2.2, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
4.6 Data Security. Inkit will: (a) employ at least industry standard practices to protect Customer Content and Personally Identifiable Information, and use and access Customer Content and Personally Identifiable Information only for the purpose of performing its obligations hereunder; (b) comply with all applicable laws relating to privacy and data protection; and (c) provide Customer with written notice of any unauthorized access or use of the Customer Content or any Personally Identifiable Information of which Inkit becomes aware, and reasonably cooperate with Customer in the investigation and resolution of any such incident.
4.7 Aggregated Information. Notwithstanding anything to the contrary, Inkit shall have the right to aggregate, collect and analyze data and other information relating to the provision, use and performance of the Inkit Services and shall be free (during and after the term hereof) to (a) use such data and other information to develop and improve the Inkit Services and other Inkit offerings, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
5. Warranties and Disclaimers
5.1 Inkit. Inkit warrants that it will, consistent with prevailing industry standards, maintain the Inkit Services in a manner which minimizes errors and interruptions in the Inkit Services and perform the Inkit Services in a professional and workmanlike manner.
5.2 Customer. Customer represents and warrants that it has the necessary rights, licenses, consents, permissions, waivers and releases to use, make available and distribute the Customer Applications and Customer Content in connection with the Inkit Services as contemplated herein.
5.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. INKIT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND INKIT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF NON-INFRINGEMENT.
6.1 Indemnification by Customer. Customer will defend Inkit against any Claim made or brought against Inkit by a third party arising out of the Excluded Claims or Customer’s failure to comply with Inkit’s Acceptable Use Policy or other Inkit Service Level Agreements, and Customer will indemnify Inkit for any damages finally awarded against (or any approved settlement) Inkit in connection with any such Claim; provided that (a) Inkit will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Inkit’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Inkit of all liability) and (c) Inkit reasonably cooperates with Customer in connection therewith.
7. Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM.
8.1 Term. The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below.
8.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement upon written notice in the event (a) the other party commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. Inkit may also suspend any Inkit Services immediately upon notice (i) if Customer violates (or gives Inkit reason to believe it has violated) any provision of the Terms of Service, API Terms, or other Inkit Service Level Agreement; or (ii) if Inkit reasonably determines that its provision of any of the Inkit Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.
8.3 Survival. Upon termination or expiration of this Agreement all rights and obligations will immediately terminate except that Sections 2.2, 2.3, 3, 4.1, 4.2, 4.3, 4.4, 6, 7, 8.2 and 9 will survive the termination or expiration of this Agreement for any reason whatsoever.
9.1 Export Compliance. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Inkit Services.
9.2 Publicity. Customer agrees that Inkit may refer to Customer’s name and trademarks in Inkit’s marketing materials and website, and in press releases, customer references and case studies, with a description of the relationship.
9.3 Assignment. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns.
9.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
9.6 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.7 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.8 Governing Law. This Agreement will be governed by the laws of the State of Minnesota, USA, exclusive of its rules governing choice of law and conflict of laws. This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of the Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of Hennepin County, Minnesota, USA, and the parties hereby consent to the personal jurisdiction of these courts.
9.9 Notices. Any notice required or permitted to be given hereunder will be given in writing to the party at the address specified in this Agreement by personal delivery, certified mail, return receipt requested, or by overnight delivery. Inkit’s address for notice is: Inkit, 619 S 10th St #301, Minneapolis, MN 55404.
9.10 Entire Agreement. This Agreement comprises the entire agreement between Customer and Inkit with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Inkit, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
9.11 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.12 Amendment; No Waiver. We may update and change any part or all of these Terms, including fees associated with the use of the Inkit services. If we update or change these Terms, the updated Terms will be posted at https://www.inkit.io/enterprise-terms. The updated Terms will become effective and binding on the next business day after they are posted. When we change these Terms, the “Last Updated” date above will be updated to reflect the date of the most recent version. We encourage you to review these Terms periodically. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
9.13 Government Terms. Inkit provides the Inkit Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Inkit Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Inkit Services were developed fully at private expense.