During the Term, we will provide you with access to, and use of, the Services ordered by you as described in your Service Order(s). You may order additional services at any time by contacting our Customer Success team. We will invoice you for any additional services you order after the start of the Term at the time those additional Services are ordered.
We continually change and improve our Services. Instill may alter the Services at any time without prior notice. We will endeavor to provide you with prior notice if we make a change to the Services resulting in an overall material decrease in functionality of the Services. If we do make a change that results in a material decrease in functionality, you may terminate your Subscription under clause 8.4.
We may limit or suspend the Services from time to time at our discretion (for example, to perform scheduled maintenance or in the event of a security emergency). If Instill limits or suspends the Services, we will endeavor to give you reasonable advance notice so that you can plan around it. However, there may be some situations, such as security emergencies, where it may not be practicable for us to give you advance notice. We will use commercially reasonable efforts to narrow the scope and duration of the suspension or limitation as is needed to resolve the issue that prompted such action.
We may suspend your access to or use of the Services following thirty (30) days’ written notice if Customer is in material breach of this Agreement or any Service Order (including but not limited to Customer’s failure to pay Instill the fees).
If you use any third party service with the Services (for example, BambooHR, Namely, Slack or Workday integrations or a web browser), you acknowledge that third party service may access or use the Customer Data. Instill will not be responsible for any act or omission of the third party, including such third party’s use of Customer Data. Instill does not warrant or support any such third party service, and you should contact that third party for any issues arising from your use of the third party service.
Instill Services are billed on a subscription basis (Subscription) and you will be billed in advance on a recurring, periodic basis (called a Billing Cycle). The Billing Cycle for your Subscription is outlined in the Service Order. You agree to pay Instill any fees for each Service you purchase or use, in accordance with the pricing and payment terms presented to you for those Services in the Service Order. Except as indicated in this Agreement or required by law, fees paid by you are not refundable.
Instill may change its fees for Services at any time. Except where you exceed the User limit indicated in a Service Order, any changes to fees will apply from the start of your next Subscription Term.
If your use of the Services during a Billing Cycle exceeds the User limit indicated in the Service Order, we may charge you for the additional Users on a pro rata basis for the remainder of that Billing Cycle.
Your Subscription for any Services will automatically renew at the end of each Subscription Term unless you cancel the automatic renewal of that Service by providing us with written notice during the current Subscription Term for that Service. To avoid doubt, automatic renewal does not guarantee that the price for Services paid during the previous Subscription Term will remain the same for the next Subscription Term.
2.4 PAYMENT METHODS
You authorize us to charge for fees using the payment method indicated in the Service Order. Unless otherwise agreed, payments for invoices are due 30 days after the invoice date. If you elect to pay by credit card, debit card, or any other billing method that supports automatic recurring payments, we will initially attempt to charge you using that billing method when payment is due, and payments will be considered overdue if payment is not received within 30 days of that due date. If Instill is required to initiate legal action due to non-payment of fees, Customer shall bear all costs resulting from the collection of such fees. You agree to keep your billing and billing contact information current and accurate.
Overdue payments may incur interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue, from the date that the relevant payment was due until that payment has been received. You will be responsible for all reasonable expenses (including lawyers’ fees) incurred by Instill in collecting such overdue amounts, except where:
(a) the overdue amounts are due to Instill’s billing inaccuracies; or
(b) you have sought to resolve a dispute using the dispute resolution process in clause 13.1 and that process is still active.
Unless stated otherwise in the Service Order, all fees for Services exclude sales tax, GST, VAT, or other similar taxes. Except for any income taxes payable by Instill, you are responsible for all other taxes or duties payable under applicable law relating to the Services provided under this Agreement, including any penalties or interest. If Instill is required to collect or pay any taxes on your behalf, we will invoice you for those taxes unless you provide us with valid evidence that no tax should be invoiced.
In the course of using the Services, you or your Users may transfer to us Customer Data containing personal data. You agree and consent to the use, transfer, processing, and storage of Customer Data in accordance with this Agreement.
If you or your Users are based in the European Union while using our Services, we will process your personal information as a data processor on your behalf. In this case, you will be considered to be the data controller of the personal information as defined in Article 4(7) of the EU General Data Protection Regulation 2016/679 (GDPR) and the EU e-Privacy Directive (Directive 2002/58/EC).
If requested, we will execute the European Union Standard Contractual Clauses to facilitate the transfer of personal information to countries outside the European Union in accordance with Article 26(2) of the EU Data Protection Directive 95/46/EC.
Under no circumstances will any entity in the Instill group be deemed a data controller with respect to Customer Data under any relevant law or regulation.
Instill will store and process Customer Data in a manner consistent with industry security standards. Instill has implemented technical, organizational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Customer Data and to mitigate the risk of unauthorized access to or use of Customer Data.
Instill will retain backup copies of Customer Data made in the ordinary course of business by Instill, for the purpose of enabling appropriate disaster recovery practices. Despite any other term in this Agreement, Instill will retain these backups for a period of up to 90 days from the time that each backup copy is generated. Thereafter, Customer agrees and acknowledges that Customer Data will be irretrievably deleted from backups.
In this Agreement, Confidentiality Notice means: (i) a notice given to survey respondents at the time of answering a survey conducted by you, including the degree of confidentiality and anonymity (as determined by you on a per survey basis) that a survey respondent will have when answering survey questions, and/or (ii) a notice given to individual users of our other Services.
To provide the Services to you, Instill must provide your Users with a Confidentiality Notice for each survey you conduct. A Confidentiality Notice may also be given to the individual users of our other Services when they interact with such services.
You acknowledge and agree that:
(a) your right to possess Customer Data is subject to the terms of any relevant Confidentiality Notice provided to your Users by Instill through the Services; and
(b) Instill’s ability to show or transfer the Customer Data to you is subject to the terms of any relevant Confidentiality Notice provided to your Users by Instill through the Services.
In this Agreement, Confidential Information means any information disclosed by a party (the Discloser) to the other party (the Recipient) in connection with the use of the Services that is marked confidential or would reasonably be considered as confidential under the circumstances. Customer Data is the Customer’s Confidential Information. Confidential Information does not include any information that:
(a) is or becomes public through no fault of the Recipient;
(b) the Recipient already lawfully knew;
(c) was rightfully given to the Recipient by a third party free of any confidentiality duties or obligations; or
(d) was independently developed by the Recipient without reference to the Discloser’s Confidential Information as demonstrated by documentary evidence.
The Recipient must:
(a) protect the Discloser’s Confidential Information using commercially reasonable efforts and no less than the same efforts it uses to protect its own Confidential Information;
(b) not disclose the Discloser’s Confidential Information, except to affiliates, employees, directors, contractors, agents, and professional advisors of the Recipient who need to know it and who have agreed in writing to keep it confidential;
(c) only use the Discloser’s Confidential Information to exercise its rights and fulfil its obligations under this Agreement; and
(d) ensure that its affiliates, employees, directors, contractors, agents and professional advisors only use the Discloser’s Confidential Information to exercise its rights and fulfil its obligations under this Agreement.
The Recipient may disclose the Discloser’s Confidential Information to the extent required by law or legal process, but only after it, if permitted by law:
(a) uses commercially reasonable efforts to notify the Discloser in writing;
(b) gives the Discloser the opportunity to challenge the requirement to disclose; and
(c) cooperates with the Discloser if the Discloser seeks an appropriate protective order.
4.4 NON-DISCLOSURE AGREEMENTS
The provisions of this clause 4 will supersede any non-disclosure agreement between the Parties and such agreement will have no further force or effect.
In this Agreement, Intellectual Property Rights means any and all present and future intellectual and industrial property rights, including any registered or unregistered forms of copyright, designs, patents, trade marks, service marks, domain names, good will and any commercial information. Intellectual Property Rights also include any application or right to apply for registrations of any of these rights, any rights protected or recognised under any laws throughout the world, related to these rights, and anything copied or derived from such property or rights.
You retain all ownership and Intellectual Property Rights to Customer Data. Instill does not claim ownership over any Customer Data. This Agreement does not grant us any licences or rights to Customer Data except for the licences granted in clauses 5.3 and 5.4 below, or as otherwise required for us to provide the Services to you or your Users.
For the Term of this Agreement, you grant Instill a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, or archive Customer Data for the purposes of providing the Services to you as contemplated by this Agreement.
Subject to the receipt of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to use any Reports which you can (and are authorised to) export through the functionality of the Services for your internal purposes (in each case subject to any Confidentiality Notices).
5.4 LICENCE FOR SERVICE IMPROVEMENT
You grant Instill a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, archive, or otherwise use Customer Data for the purposes of Service Improvement and creating de-identified aggregated data (“Data Sets”).Data Sets may be made publicly available and may be used after termination of this Agreement provided that such Data Sets cannot directly or indirectly identify the Customer or its Users.
You acknowledge that, in order to ensure compliance with legal obligations, Instill may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates this Agreement (such as when unlawful conduct or content is reported to us). We may also prevent access to or refuse to display content that we reasonably believe violates the law or this Agreement. However, Instill otherwise has no obligations to monitor or review any content submitted to the Services by you or any other person.
If you provide us with any feedback associated with the Services, Instill may use that feedback without any obligation to you.
Instill may identify you (by name and logo) as a Instill customer in promotional materials or during promotional events. If you do not want your name and/or logo to be used in this way, please contact our Customer Success team.
Nothing in this Agreement or from your use of the Services grants you:
(a) ownership in the Services or the content (including Reports) you access through the Services (other than Customer Data); and
(b) any right to use any Instill trade marks or other Intellectual Property Rights contained in our brand identity.
Instill will continue to own all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all system-generated data (e.g. dashboard data or Reports), modifications, improvements, upgrades, derivative works, and all intellectual property rights in and to any of the foregoing. Except for the express rights granted herein, we do not grant you any other licenses, express or implied, to any of our intellectual property including software, services, or products.
You agree that Instill and the third-party service providers that are utilized by Instill to assist in providing the Services to you have the right to access your account and to use, modify, reproduce, distribute, display and disclose Customer Data to the extent necessary to provide or improve or deliver the Services, including, without limitation, in response to your or your Users’ support requests.
Any third-party service providers utilized by Instill will only be given access to your account and Customer Data as is reasonably necessary to provide the Services and will be subject to: (i) confidentiality obligations which are substantially consistent with the standards described in this Agreement; and (ii) their agreement to comply with the data transfer restrictions applicable to personal information as set forth in this Agreement.
You are responsible for safeguarding any passwords or other credentials used to access your account. Administrator or manager accounts may not be shared and may only be used by one individual per account. You are responsible for any activity occurring in your account (other than activity that Instill is directly responsible for and is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to, or use of, your account, you should immediately notify our Customer Success team.
You are responsible for maintaining and updating your operating systems, Internet browsers, anti-virus software, or other software that you or your Users use to access and use the Services.
You must use the Services in compliance with, and only as permitted by, your internal company rules and any applicable law. If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance. You must not use the Services in a way that would subject Instill to any industry-specific regulations (for example, the Children’s Online Privacy Protection Act, the Payment Card Industry Data Security Standard or the Health Insurance Portability and Accountability Act). You acknowledge and agree that we are not responsible for any liabilities arising from your violation of this restriction.
You are responsible for your conduct and the conduct of your Users. You must ensure that you and your Users do not:
(a) misuse the Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions we provide;
(b) circumvent or attempt to circumvent any limitations that Instill imposes on your account (such as any User limits in a Service Order);
(c) probe, scan, or test the vulnerability of any Instill system or network, unless with prior written authorization of Instill;
(d) decipher, decompile, disassemble, translate, create derivative works, reverse engineer or otherwise attempt to reconstruct, identify or discover any source code, algorithms, underlying ideas or underlying user interface techniques in the Services or any of the software used to provide the Services, or attempt to do so;
(e) directly or indirectly identify a User contrary to the terms of any Confidentiality Notice or other privacy setting, or attempt to do so;
(f) transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services;
(g) engage in abusive or excessive use of the Services, which is usage significantly in excess of average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Services for other customers and their users. Instill will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Instill;
(h) use the Services to infringe the Intellectual Property Rights of others, or to commit any unlawful activity;
(i) attempt to circumvent any license, timing or use restrictions that are built into the Services; or
(j) unless authorized in writing by Instill, lend, resell, lease or sublicense or otherwise use the Services for the benefit of a third party.
(a) ensure that your Users comply with this Agreement, as applicable;
(b) obtain any consents required from each User to allow you and the administrators or managers of your account to engage in the activities contemplated by this Agreement, as required by applicable law;
(c) obtain any consents required from each User to allow Instill to provide the Services, as required by applicable law;
(d) not provide any person under the age of 16 with access to the Services, unless otherwise permitted by applicable law.
If a User breaches this Agreement or uses the Services in a manner that Instill reasonably believes will cause Instill liability or disrupt others’ use of the Services, then Instill may request that you suspend or close the applicable User account until the breach has been cured or the use in such manner has stopped. If you fail to comply with such request, then Instill may suspend or close the applicable User account.
This Agreement begins on the date you sign a Service Order or first use the Services (whichever is earlier),and continues until your relevant Subscription ends or otherwise terminates, or if this Agreement is terminated (the “Term”).
Instill may terminate this Agreement for any reason by providing at least 90 days’ written notice to you and will provide a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.
If your Service Order states that your Subscription will not auto-renew, then your Subscription will terminate at the end of the Subscription Term for that particular Service with no further action required by you.
Each party may suspend performance or terminate this Agreement if the other party:
(a) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; or
(b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. Instill may terminate this Agreement if any payment owed by you to Instill is more than 30 days overdue.
If we make a change to the Services resulting in an overall material decrease in functionality of the Services, you may terminate this Agreement immediately by providing notice to Instill. Upon receiving notice of termination from you, Instill will provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.
If this Agreement is terminated:
(a) by you due to breach by Instill, we will provide you with a pro rata refund for any fees prepaid by you applicable to the period following the termination of this Agreement; or
(b) by Instill due to breach by you, we will bill you, and you will pay, for any accrued but unbilled fees, and you will remain liable to pay any invoices outstanding on the termination date.
In no event will expiration or termination of this Agreement relieve you of any fees payable for the period prior to the date of termination.
The Services include functionality that enables you to export Customer Data in your account at any time during the Term. If the foregoing functionality is not operational, we may assist you to export any Customer Data that existed in your account at the time of termination, provided you make such request before the end of your Subscription Term. However, we do not guarantee that all Customer Data will be able to be exported and only Customer Data that is permitted to be transferred to you within the terms of any applicable Confidentiality Notice or other privacy setting will be transferred to you. Upon Customer’s written request, Instill will delete all Customer Data from its production environments.
The following clauses will survive the termination of this Agreement: 2, 3.3, 3.4, 4, 5.3, 5.4, 8, 10, 11, 13 and 14.
You will indemnify, defend, and hold harmless Instill and its affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable lawyers’ fees) arising out of a third party claim regarding or in connection with:
(a) Customer Data (including claims of Intellectual Property Rights infringement);
(b) your use of the Services in breach of this Agreement; or
(c) your Users’ use of the Services in breach of this Agreement.
Instill will indemnify, defend, and hold you harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that the technology used to provide the Services to you infringes any Intellectual Property Rights of such third party. However, in no event will Instill have any obligations or liability under this clause arising from:
(a) use of any Services in a modified form or in combination with materials not furnished or authorized by Instill;
(b) any content or data provided by you, your Users, or any third parties; or
(c) designs or specifications provided to Instill by Customer that caused such claim.
If we believe the Services may infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then we may:
(a) obtain the right for you, at our expense, to continue using the Services;
(b) provide a non-infringing functionally equivalent replacement; or
(c) modify the Services so that they no longer infringe.
If we do not believe that the options above are commercially reasonable, then we may suspend or terminate your use of the impacted Services and provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of such Services.
A party seeking indemnification under this Agreement will promptly notify the other party of the claim and cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defence, except that:
(a) any settlement requiring the indemnified party to admit liability or to pay any money will require that party’s prior written consent (such consent not to be unreasonably withheld or delayed); and
(b) the indemnified party may join in the defence with its own counsel at its own expense.
Nothing in this Agreement will restrict or limit a party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under Clauses 10.1 and 10.2. The indemnities in this Agreement are a party’s sole and exclusive remedy under this Agreement for violation by the other party of a third party’s Intellectual Property Rights.
Except as expressly provided in this Agreement and to the extent permitted by applicable law, neither party makes any warranties of any kind, express, implied, statutory, or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Instill provides the services on an “as is” basis and, except as expressly provided in this Agreement and to the extent permitted by applicable law, we make no representations regarding the availability, reliability, or accuracy of the Services or any portion thereof, or regarding any Customer Data or other content associated with your account.
To the extent permitted by applicable law, neither party will be liable for any lost profits, business interruption, replacement Services or any indirect, consequential, special, incidental, punitive, or exemplary damages arising out of or in connection with this Agreement, even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose, and regardless of the theory of liability.
To the extent permitted by applicable law, the aggregate liability of either party arising out of or in connection with this Agreement will not exceed the total amounts paid or payable by you to Instill under this Agreement during the 12 months prior to the event giving rise to the liability or claim.
The limitations of liability in clauses 11.2 (Exclusion of liability) and 11.3 (Limitation of liability) do not apply to violations of a party’s Intellectual Property Rights by the other party or each party’s indemnification obligations under this Agreement.
Instill may amend this Agreement from time to time and the most current version will be posted on Instill’s website. If an amendment is material, as determined in Instill’s reasonable discretion, we will notify the Customer contact by email or when they next log in to your account. Except in the case of an amendment being made to satisfy legal requirements, we will provide you with advance notice of material amendments.
If an amendment has a material adverse impact on the data privacy or security of your Customer Data and you do not agree to the amendment, you may terminate the Agreement by notifying our Customer Success team within 30 days of receiving notice of the amendment or date of publication of the updated version (otherwise, you will have been deemed to have consented to the amendment).
The terms and conditions of the updated version of this Agreement shall apply to all existing Service Orders and new Service Orders following the date of publication of the updated version.
Any amendment to this Agreement that is not made to the current version displayed on our website, must be in writing, signed by you and Instill, and must expressly state that it is amending this Agreement.
Before commencing any form of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:
(a) give the other party notice of the dispute and its nature;
(b) give the other party the opportunity to remedy any breach of this Agreement within 30 days; and
(c) hold good faith negotiations with the other party to settle the disputed matter.
If your principal place of business is in North or South America (as determined by your address in the Service Order):
(a) the Instill party to this Agreement is Instill, Inc. (C3582555) of 111 Sutter Street, Level 15, San Francisco, CA 94104, United States;
(b) this Agreement is governed by the laws of Delaware, United States of America; and
(c) each party submits to the exclusive jurisdiction of the courts of Delaware, United States of America, in relation to any proceedings connected with this Agreement.
If your principal place of business is located outside the regions in clauses 13.2 and 13.3 (as determined by your address in the Service Order):
(a) the Instill party to this Agreement is Share Ventures 12025 E Waterfront Dr Los Angeles, CA 90094;
(b) this Agreement is governed by the laws of Los Angeles, United States; and
(c) each party submits to the exclusive jurisdiction of the courts of Los Angeles, United States, in relation to any proceedings connected with this Agreement.
Nothing in this Agreement prevents a party from seeking a temporary restraining order, injunction, or other equitable relief in relation to a breach (or attempted breach) of this Agreement by the other party.
Neither party may assign this Agreement without the other party’s prior written consent (such consent not to be unreasonably withheld). However, both parties may assign this Agreement without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of the party’s assets or its business to which the subject matter of this Agreement relates. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.
The Instill entity which is party to this Agreement is determined in accordance with clause 13 of this Agreement. Despite this, any of the Instill entities referred to in clause 13.2 through 13.4 may undertake the obligations for and on behalf of the Instill contracting entity. Any Instill entity which carries out its obligations under this Agreement must comply with the terms of this Agreement.
This Agreement (including any documents incorporated by reference to a URL), constitute the entire agreement between you and Instill and supersedes any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of this Agreement, and are void.
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, or general internet disturbance) that was beyond the party’s reasonable control (except for payment of any money owed).
The relationship between the parties is that of independent contractors, and not legal partners, employees, or agents of each other.
The use of the terms includes, including, such as and similar terms, will be deemed not to limit what else might be included.
A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.
All notices must be in writing and will be deemed given when:
(a) verified by written receipt, if sent by postal mail with verification of receipt service or courier;
(b) received, if sent by mail without verification of receipt; or
(c) when verified by automated receipt or electronic logs if sent by email.
Notices to Instill must be sent to Share Ventures 12025 E Waterfront Dr Los Angeles, CA 90094 and marked to the attention of the Legal Department, or by email to firstname.lastname@example.org. Notices to you may be sent to the email address associated with the Customer contact details in the Service Order and/or the administrator of your account. You must keep the contact details associated with your account current and accurate by notifying the Instill team when your contact details change. You may grant approvals, permission, extensions, and consents by email.
To the extent any conflict exists between the documents that constitute this Agreement, the order of precedence will be: Service Order, European Union Standard Contractual Clauses (if executed by you and Instill) and General Terms.
If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed from this Agreement and the remaining terms will remain in full effect.
There are no third party beneficiaries to this Agreement. Your Users are not third party beneficiaries to your rights under this Agreement.