Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement is between Infiniserv LLC, a Massachusetts limited liability company (Infiniserv), and the Customer agreeing to these terms (Customer).
1. SOFTWARE SERVICE.
This agreement and the applicable order provide Customer and its Affiliates (defined below) access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, and underlying software, as specified on an order (Service). Onboarding services may also be provided by Infiniserv under this agreement if specified under an order.
2. USE OF SERVICE.
a. Customer Owned Data. All data uploaded by Customer to the Service remains the property of Customer, as between Infiniserv and Customer (Customer Data). Customer represents and warrants to Infiniserv that Customer has provided all required notices and has obtained all required licenses, permissions, and consents regarding Customer Data for use within the Service under this agreement. During the term of this agreement, Customer grants Infiniserv the right to use the Customer Data solely for purposes of performing under this agreement (which includes, without limitation, the right for Infiniserv to enhance its technology and offerings). During the term of this agreement, Customer can export Customer Data within functionality within the Service.
b. Affiliates and Contractors. Customer, including its Affiliates, may enter into orders with Infiniserv and its Affiliates. An Affiliate entering into an order agrees to be bound by this agreement as if it were an original party hereto. Customer may allow its Affiliates and contractors to use the Service, provided Customer is responsible for their compliance with the terms of this agreement, and use by its Affiliates and contractors is solely for Customer’s or Affiliate’s benefit. Affiliate means any company controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%.
c. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential and use industry-standard password management practices; (ii) is responsible for for its access control policies and administration of access rights to its account within the Service, the acts and omissions of its users, and the legality and accuracy of Customer Data; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Infiniserv promptly of any such unauthorized access; (iv) may use the Service only in accordance with the Service's technical documentation and applicable law; and (v) may not allow a competitor of Infiniserv to access or use the Service for any purpose.
d. 30-Day Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for a 30-day time period (unless extended by Infiniserv in writing). The Service is provided 'AS IS', with no warranty during this time period. All Customer Data will be deleted after the trial period, unless Customer converts its account to a paid Service.
e. Third Party Service. The Service interoperates with third party services (Third Party Service) such as, without limitation, Gravity and QuickBooks and it depends on continuing availability of and access to Third Party Service, including application programming interfaces, for full functionality of the Service. Customer is responsible for obtaining all rights and the payment of all fees associated with all Third-Party Service for purposes of this agreement.
3. SERVICE LEVEL AGREEMENT AND WARRANTY.
a. Availability Warranty. Infiniserv warrants to Customer that Infiniserv will maintain the availability of the Service as provided in the chart below (excluding maintenance outages, outages beyond Infiniserv's reasonable control, availability of the mobile app, and outages that result from any Customer technology issues).
• Credit for Availability Warranty.
Less than 98% = 3% of monthly fee for each full hour of an outage (beyond the warranty).*
* Maximum amount of the credit is 100% of the fee for such month.
• CUSTOMER'S EXCLUSIVE REMEDY AND INFINISERV'S SOLE OBLIGATION FOR ITS FAILURE TO MEET THIS WARRANTY WILL BE FOR INFINISERV TO PROVIDE A CREDIT FOR THE APPLICABLE MONTH, AS PROVIDED IN THE CHART ABOVE (IF THIS AGREEMENT IS NOT RENEWED, THEN A REFUND FOR THE MONTH), PROVIDED THAT CUSTOMER NOTIFIES INFINISERV OF SUCH BREACH WITHIN 30 DAYS OF THE END OF THAT MONTH.
b. Warranty. Infiniserv warrants to Customer that: (i) Infiniserv will not materially decrease the overall security of the Service; (ii) the Service will perform materially in accordance with its technical documentation; and (iii) Infiniserv will not materially decrease the overall functionality of the Service or the scope of Support. FOR ANY BREACH OF THIS WARRANTY,CUSTOMER’S EXCLUSIVE REMEDIES ARE THOSE DESCRIBED IN THE “MUTUAL TERMINATION FOR MATERIAL BREACH” AND “EFFECT OF TERMINATION” SECTIONS SET FORTH IN THIS AGREEMENT.
c. DISCLAIMER. INFINISERV DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE INFINISERV TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, INFINISERV DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE MAY NOT BE ERROR-FREE AND THE USE MAY BE INTERRUPTED, AND INFINISERV IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SERVICE ISSUES.
Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law. If Infiniserv has the legal obligation to pay or collect taxes for which Customer is responsible under this section, Infiniserv will invoice Customer and Customer will pay that amount unless Customer provides Infiniserv with a valid tax exemption certificate authorized by the appropriate taxing authority. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
5. MUTUAL CONFIDENTIALITY AND DATA SECURITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Infiniserv's Confidential Information includes, without limitation, the Service, and pricing information. Customer's Confidential Information includes, without limitation, the Customer Data.
b. Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this agreement; and (ii) limit access to Confidential Information of Discloser to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient containing protections not materially less protective of the Confidential Information than those in this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
d. Data Security Measures.
• Security Measures. Infiniserv: (i) implements and maintains reasonable security measures appropriate to the nature of the Customer Data including, without limitation, technical, physical, administrative, and organizational controls, designed to maintain the confidentiality, security, and integrity of the Customer Data; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of the Customer Data that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of safeguards in place to control these risks (collectively, Security Measures).
• Notice of Data Breach. If Infiniserv becomes aware that Customer Data was accessed or disclosed in breach of this agreement, Infiniserv will so notify Customer without undue delay, immediately act to eliminate the breach and preserve forensic evidence, and provide available information to Customer regarding the nature and scope of the breach.
e. Data Privacy Roles and CCPA.
To the extent that personal data is processed when Customer or authorized users use the Service, the parties acknowledge that Infiniserv is a data processor/service provider and Customer is a data controller.
The parties agree that to the extent the California Consumer Privacy Act of 2018 (as amended from time to time, the CCPA) applies to the Customer Data:
• For purposes of this section of the agreement:
o Business Relationship means the direct business relationship between Customer and Infiniserv, which encompasses the parties’ use of Customer Data as contemplated by the agreement.
o Customer Personal Information means any Customer Data that constitutes Personal Information as defined in, and which is subject to, the CCPA.
• Infiniserv must not retain, use, or disclose Customer Personal Information for any purpose other than for the specific purpose of performing under this agreement, or as otherwise permitted by CCPA, including retaining, using, or disclosing the Customer Personal Information for a commercial purpose (as defined in CCPA) other than providing the Service.
• Infiniserv may not (a) sell any Customer Personal Information; (b) retain, use or disclose any Customer Personal Information for any purpose other than for the specific purpose of performing under the agreement, including retaining, using, or disclosing the Customer Personal Information for a commercial purpose (as defined in the CCPA) other than provision of the Service; or (c) retain, use or disclose the Customer Personal Information outside of the Business Relationship or in a manner that violates the agreement. Infiniserv hereby certifies that it understands its obligations under this clause and will comply with them.
a. Reservation of Rights. Infiniserv and its licensors are the sole owners of the Service including all associated intellectual property rights, and they remain only with Infiniserv. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. Infiniserv reserves all rights that are not expressly granted in this agreement.
b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service except as allowed by applicable law despite this limitation; or (vi) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. Infiniserv may suspend Service to Customer if Infiniserv believes in good faith that Customer’s use of the Service poses an imminent threat to the security, availability or legality of the Service; in such event, Infiniserv will work with Customer to address the issue and restore Service as quickly as possible.
c. Statistical Information. Infiniserv may compile statistical information related to the performance of the Service and may make such information publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. Infiniserv retains all intellectual property rights in such information.
7. TERM AND TERMINATION.
a. Term. This agreement continues until the 30th day after all orders have expired, unless earlier terminated as provided below.
b. Term of Orders. The term of each order must be specified in the order.
c. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
d. Return of Customer Data.
• Within 30 days after termination, upon request Infiniserv will make the Service available for Customer to export Customer Data as provided in Section 2(a).
• After such 30-day period, Infiniserv has no obligation to maintain the Customer Data and may destroy it.
e. Effect of Termination. If this agreement is terminated for Infiniserv's breach, Infiniserv will refund Customer fees prepaid for the remainder of the term of all orders after the termination effective date. If this agreement is terminated for Customer’s breach, Customer will pay any unpaid fees for the term of all orders. Upon request, following any termination of this agreement, each party will destroy or return all of the other party’s property that it holds, subject to the “Return of Customer Data” section above.
8. LIABILITY LIMIT.
a. EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, INFINISERV IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
b. TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, INFINISERV'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 6 MONTH PERIOD, FOR MONTH-TO-MONTH ORDERS, AND 12-MONTH PERIOD, FOR ANNUAL ORDERS, PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY, EXCEPT THAT THE ABOVE LIMITATION DOES NOT APPLY TO CUSTOMER'S PAYMENT OBLIGATIONS FOR THE SERVICE.
9. INDEMNIFICATION FOR THIRD-PARTY CLAIMS.
If any third party brings a claim against Infiniserv related to Customer’s information within the Service or their use of the Service, Customer must defend, indemnify, and hold Infiniserv harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
10. GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the Commonwealth of Massachusetts (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Worcester County, Massachusetts, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys' fees and costs from the other party.
11. OTHER TERMS.
a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by Infiniserv.
b. No Assignment. Neither party may assign or transfer this agreement to a third party, except that the agreement and all orders may be assigned without the consent of the other party as part of a merger or sale of all or substantially all a party's businesses, assets, not involving a competitor of the other party, or at any time to an Affiliate.
c. Export Compliance. The Service and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.
d. Independent Contractors. The parties are independent contractors with respect to each other, and neither party is an agent, employee, or partner of the other party or the other party's Affiliates.
e. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for its non-performance due to events beyond its reasonable control, including but not limited to natural weather events and disasters, labor disruptions, and disruptions in the supply of utilities.
f. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
g. No Additional Terms. Infiniserv rejects additional or conflicting terms of a Customer's form-purchasing document.
h. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
i. Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
j. Mobile Software. Infiniserv may make available mobile software to access the Service via a mobile device (Mobile Software). To use the Mobile Software, Customer must have a mobile device that is compatible with the Mobile Software. Infiniserv does not warrant that the Mobile Software will be compatible with Customer's mobile device. Customer may use mobile data in connection with the Mobile Software and may incur additional charges from Customer's wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that Infiniserv may, from time to time, issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades. If the mobile device software is acquired from an Apple platform (App Store Software), the additional terms set forth on Exhibit A apply.
k. Feedback. If Customer provides feedback or suggestions about the Service, then Infiniserv (and those it allows to use its technology) may use such information without obligation to Customer.
Last Revised __________.
EXHIBIT A - MOBILE SOFTWARE FROM APPLE APP STORE
The following applies to any Infiniserv Mobile Software Customer acquires from the Apple App Store (App Store Software):
a. Acknowledgment. This agreement is between Infiniserv and Customer only, and not with Apple, and Infiniserv, not Apple, is solely responsible for the App Store Software and the content thereof. The agreement does not provide for usage rules for App Store Software that are in conflict with the App Store Terms of Service as of the effective date of the agreement (which Customer acknowledges it has had the opportunity to review).
b. Scope of License. The license granted to Customer for the App Store Software is limited to a non-transferable license on any Apple-branded Products that the Customer owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App Store Software may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
c. Maintenance and Support. Infiniserv is solely responsible for providing any maintenance and support services with respect to the App Store Software, as specified in the agreement, or as required under applicable law. Infiniserv and Customer acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Software.
d. Warranty. Infiniserv is solely responsible for any App Store Software warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App Store Software to conform to any applicable warranty, Customer may notify Apple, and Apple may refund the purchase price for the App Store Software (if that purchase price was paid to Apple on behalf of Infiniserv to Customer; and that, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App Store Software, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty is Infiniserv’s sole responsibility.
e. Product Claims. Infiniserv and Customer acknowledge that Infiniserv, not Apple, is responsible for addressing any claims of Customer or any third party relating to the App Store Software or Customer’s possession and/or use of that App Store Software, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App Store Software’s use of the HealthKit and HomeKit frameworks. This agreement does not limit Infiniserv's liability to Customer beyond what is permitted by applicable law.
f. Intellectual Property Rights. Infiniserv and Customer acknowledge that, in the event of any third-party claim that the App Store Software or Customer’s possession and use of that App Store Software infringes that third party’s intellectual property rights, Customer, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
g. Legal Compliance. Customer represents and warrants that: (i) he/she/it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.
h. Developer Name and Address. Company's name is Infiniserv LLC, address is, and the contact information __________ to which any Customer questions, complaints, or claims with respect to the App Store Software should be directed.
j. Third-Party Beneficiary. Infiniserv and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this agreement, and that, upon Customer’s acceptance of the agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the agreement against Customer as a third-party beneficiary thereof.
EXHIBIT B - WEB SUPPORT & MAINTENANCE TERMS
Support Phone 877-780-SERV (7378)
Support Request Page https://www.infiniserv.pro/contact-3
Maintenance, Response and Resolution Time Service maintenance, which includes maintenance releases, enhancements, new versions, additions, and modifications to the Service, that it provides to all other customers under support for no additional fee.
Bug fixes to bring the Service into substantial conformance with its then-current user guide.
Response time in accordance with the chart below.
Scheduled Outages are scheduled to avoid major interuptions and customers are usually notified via email.
RESPONSE TIME CHART
SEVERITY DEFINITION RESPONSE GOAL DETAILS
Severity 1 - Service substantially fails to perform. Goal: 1 hour
Severity 2 - Substantial degradation in performance of the Service. Goal: 2 hours
Severity 3 - Minimal-to-no impact on the availability or performance of the Service. Goal: 3 days / Commercially reasonable efforts to include in next major release.