Terms & Conditions
Last Update: January 1, 2016
PLEASE READ THESE TERMS FOR CLIENTS (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY INSIGHTXM. (“INSIGHTXM”). BY CLICKING THE “SUBMIT” BUTTON OR BY USING THE SERVICES IN ANY MANNER, YOU OR THE ENTITY YOU REPRESENT (“CLIENT”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CLIENT. USE OF INSIGHTXM’S SERVICES IS EXPRESSLY CONDITIONED UPON CLIENT’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF CLIENT DOES NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, NAVIGATE AWAY FROM THIS PAGE AND CLIENT WILL HAVE NO RIGHT TO USE THE SERVICES.
InsightXM reserves the right, at its sole discretion, to modify or replace this Agreement, or change, suspend or discontinue the Platform and InsightXM Services (including, without limitation, the availability of any feature, database or content) at any time by posting a notice on the Platform or by sending Client an email. It is Client’s responsibility to check this Agreement periodically for changes. Client’s continued use of the Platform or InsightXM Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
1. Nature of Services.
InsightXM provides an online, on-demand, data science service and online collaboration platform (collectively, the “Platform”). The Platform allows Client to connect with InsightXM service providers (“Vendors”) for the provision of data science services (“Data Science Services”). Subject to the terms and conditions of this Agreement, InsightXM will use commercially reasonable efforts to (i) assist Client in using the Platform (ii) scope Client’s requirements for Data Science Services; (ii) identify one or more appropriate Vendors to provide such Data Science Services; and (iv) provide additional assistance to Client in connection with the receipt of such Data Science Services, as may be required by mutual agreement (collectively, the “InsightXM Services”).
2. Quote; Platform.
InsightXM will provide Client a Quote for Data Science Services (“Quote”) which will provide (i) general nature of the Data Science Services requested; (ii) deliverables to be provided (“Deliverables”); (iii) timeline and deadline(s) for the Data Science Services as may be provided in InsightXM policies and guidelines; (iv) fees to be paid by Client for the Data Science Services, Deliverables, and InsightXM Services as may be provided in InsightXM policies and guidelines (“Fees”). When a Quote is accepted by Client, InsightXM will provide Client a link to the Platform where they can develop a Project Brief for the Data Science Services. (“Project Brief”). Examples of InsightXM’s current form of Project Brief are available at firstname.lastname@example.org. Following submission of a Project Brief, InsightXM will identify one or more potential Vendors to perform Client’s requested Data Science Services as set forth in the Quote and Project Brief. Client acknowledges and agrees that once a Vendor has confirmed they will provide the Data Science Services and any Deliverables associated with a Project Brief, the Data Science Services will commence and all Fees will be due and payable as provided in Quote. Should Client request additional Data Science Services or Deliverables once a Vendor has commenced work, InsightXM retains the right to change the Fees associated with the Quote, upon notice to Client. Client further acknowledges and agrees that all Vendors are independent contractors and are not employees, agents, partners or joint venturers of either InsightXM or Client.
3. Fees; Payment.
Payment for all Fees must be made through the Platform in accordance with the following: (i) Client shall pay all Fees, on time, and on schedule, as specified in the Project Brief; (ii) all Fees shall be payable in U.S. dollars within the United States; (iii) if Client has a good faith belief that it has been incorrectly billed by InsightXM, Client must contact InsightXM in writing within thirty (30) days following receipt of the applicable invoice specifying the calculation error and the amount of the adjustment or credit requested. Unless Client has notified InsightXM of such dispute with invoiced fees, payments not received by InsightXM by the due date shall bear interest of one and one half percent (1.5%) per month or the maximum rate allowed by law; (iv) fees are exclusive of all taxes; and (v) the Client shall be responsible for all reasonable 3rd party collection costs & legal fees incurred by InsightXM in collecting amounts due. Client agrees that for any services which have been invoiced, but for which the Project Brief has not been submitted, fees are due and payable according to the terms of this section, however, such fees paid may be applied to other services requested by Client commenced within thirty (30) days of the date of invoice. Client further agrees that for any services which have been invoiced and the Project Brief has been submitted, the invoice is due and payable according to the terms of this sections and credit towards other services requested by InsightXM is at InsightXM’s sole discretion. All Fees are nonrefundable and are not subject to set-off.
4. Ownership; Licenses.
Subject to Client’s compliance with this Agreement and subject to payment of all outstanding Fees, Client shall own all right, title and interest in and to all data Deliverables provided to Client, with the possible exception of certain third party data, which may be subject to separate licensing terms, and InsightXM hereby makes all assignments necessary to effectuate the foregoing ownership. To the extent allowed by law, the foregoing assignment includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like. If for any reason the foregoing assignment is ineffective, InsightXM shall and hereby does grant Client a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to exploit and exercise the data Deliverables for any purpose. Client agrees that its ownership does not extend to individual elements of the Deliverables to the extent that they are extracted from the deliverable for use in other commercial purposes. “InsightXM Background Materials” means, and, notwithstanding anything to the contrary, “Deliverables” shall not include, InsightXM’s proprietary or licensed tools, templates, methods, and know-how, pre-existing or otherwise, including (i) any of the foregoing which are generally applicable to InsightXM’s business, products or services, (ii) any derivatives, modifications, or improvements to the foregoing, and (iii) all intellectual property and proprietary rights embodied by or relating to the foregoing. If InsightXM incorporates any InsightXM Background Materials into any Deliverable provided to Client hereunder, then InsightXM shall and hereby does grant Client a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to use such InsightXM Background Materials solely in connection with Client’s use of such Deliverables. Client hereby grants InsightXM a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to copy, modify, publicly perform and publicly display the Deliverables on InsightXM’s website.
5. Dispute; Release.
In the event of a dispute between Client and Vendor with respect to the Data Science Services or Deliverables, such dispute will be submitted to InsightXM in writing on, before, but no later than ten (10) business days from Client's receipt of the invoice(s) for same services, and if following review, the dispute(s) are found to be valid InsightXM will resolve such dispute(s) in its reasonable discretion. Client agrees that any such resolution will be final and binding.
Client represents and warrants the Platform will serve as the primary means of communication between Client and Vendor regarding the Data Science Services and Deliverables. Client further represents and warrants that it will not attempt to circumvent, or circumvent, any of the communication or payment methods provided by the Platform: this includes, but is not limited to (i) submitting any proposals or soliciting any Vendors other than through the Platform; and (ii) paying any fees associated with the Data Science Services other than to InsightXM as provided in this Agreement. During the term of this Agreement and for a period of three (3) years after, Client represents and warrants it will not pay Vendors introduced to Client outside the InsightXM Marketplace nor directly or indirectly solicit the Vendors to provide services outside the InsightXM Marketplace. Should Client breach its warranty in this section, Client will pay InsightXM a placement fee equal to the greater of (i) twenty-five percent (25%) of the Vendor’s equivalent estimated annual compensation or contract value, or (ii) $5,000.
7. Suspension of Access.
InsightXM retains the right to immediately prevent or restrict access to the Platform or take any other action as necessary in case of technical problems, infringing or objectionable material, inaccurate listings, inappropriately categorized products or services, or actions otherwise prohibited by applicable law, the guidelines contained on the Platform, or for any other reason in the sole and absolute discretion of InsightXM, and to correct any inaccurate listing or technical problems on the Platform.
8. Term; Termination.
This Agreement, and any modifications that are posted on the InsightXM Platform, will commence upon Client’s first use of the Services and will continue in full force and effect for a period of one (1) year (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional one (1) year periods (each, a “Renewal Term”, and together with the Initial Term, the “Term”). Either party may terminate this Agreement for any reason by providing thirty (30) days’ notice to the other party. In addition, InsightXM may terminate this Agreement in the event that Client materially breaches this Agreement and does not materially cure such breach within ten (10) days of such notice. Notwithstanding the foregoing, if at the time this Agreement is terminated there are outstanding Data Science Services and Deliverables, then this Agreement shall survive until the completion and payment of such Data Science Services and Deliverables.
9. Confidential and Proprietary Information.
Each party shall keep confidential and not disclose to any other party or use, except as required by this Agreement, non-public information obtained from the other party; provided, however, that neither party shall be prohibited from disclosing or using information, (i) that at the time of disclosure is publicly available or becomes publicly available through no act or omission of the party having a confidentiality obligation under this section, (ii) that is or has been disclosed to such party by a third party who is not under (and to whom such party does not owe) an obligation of confidentiality with respect thereto, (iii) that is or has been independently acquired or developed by such party, (iv) to the minimum extent use or disclosure is required by court order or as otherwise required by law, on condition that notice of such requirement by law for such disclosure is given to the other parties prior to making any such use or disclosure.
10. General Skills and Knowledge.
Notwithstanding anything to the contrary in this Agreement, InsightXM shall not be prohibited or enjoined at any time by Client from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the services specified under this Agreement. For purposes of this Agreement, “skills or knowledge of a general nature” shall include, without limitation, anything that might reasonably be learned or acquired in connection with similar work performed for another Client.
InsightXM represents that the InsightXM Services will be performed in a professional and workmanlike manner, in accordance with generally accepted applicable professional and industry standards. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, ALL INSIGHTXM SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, AND INSIGHTXM HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, and the stated express warranties are in lieu of all other obligations or performance liabilities arising out of or in connection with the services provided under this Agreement.
Client agrees to indemnify, defend, and hold InsightXM harmless from and against any claims, costs, liabilities, and expenses (including reasonable attorneys’ fees) paid or payable to an unaffiliated third party arising from (i) Client’s breach of this Agreement; (ii) any claim that Client has infringed another’s intellectual property right; or (iii) any violation of applicable laws by Client.
13. Limitation of Liability.
EXCEPT FOR CLIENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CLIENT’S OBLIGATIONS UNDER SECTION 12, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT TORT, NEGlICENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR (I) ANY DAMAGES RESULTING FROM LOSS OF DATA OR USE; OR (II) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (III) FOR ANY AMOUNTS IN EXCESS (IN THE AGGREGATE OF THE AMOUNTS PAID OR PAYABLE TO INSIGHTXM UNDER THIS AGREEMENT DURING THE TWLEVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY.
14. Non-Solicitation of Personnel.
During the term of this Agreement, and for a period of one (1) year thereafter, neither party will directly or indirectly solicit the employees of the other party without the prior written consent of such other party.
Client may not assign, delegate or transfer this Agreement or any rights or obligations hereunder in any way (by operation of law or otherwise) without InsightXM’s prior written consent. InsightXM may transfer, assign, subcontract or delegate this Agreement and any rights and obligations without consent.
15.2 Independent Contractors.
For all purposes under this Agreement each party shall be and act as an independent contractor of the other and shall not bind nor attempt to bind the other to any contract.
15. 3 Taxes.
InsightXM will be solely responsible for its income taxes in connection with this Agreement and Client will be responsible for sales, use and similar taxes, if any.
15.4 Entire Agreement.
Except as otherwise set forth herein, any notices in connection with this Agreement will be in writing and sent by first class U.S. mail, major commercial rapid delivery courier service, or confirmed email, as follows: (i) if to InsightXM to InsightXM Inc., 2 Over Rock Lane
Westport, CT 06880 and (ii) if to Vendor, to the address provided by Vendor during registration for the Platform (or, in each case, such other address as may be properly specified by written notice hereunder).
15.6 Choice of Law; Venue.
This Agreement is governed by and will be construed under the laws of the State of Connecticut, without regard to the conflicts of laws provisions thereof. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Fairfield County, Connecticut.