Last Updated: January 1, 2019
Thanks for using Inkit! The Inkit services, which may include APIs, developer tools, associated software, and website located at www.inkit.io, or taken together (the “Site”) belongs to Inkit Inc. (“Company”, “us”, “our”, and “we”). Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 10.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN TRIAL IN A COURT OF LAW, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1.1 Account Creation. In order to use certain features of the Site, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. We may suspend or terminate your Account in accordance with Section 8.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2.1 License. Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site solely for your own personal, noncommercial use.
2.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions, and you hereby covenant that: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.
2.3 Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
2.4 No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Site.
2.5 Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
3.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site (e.g., content in the user’s profile or postings). You are solely responsible for the submission of your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
3.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Site. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3.3 Acceptable Use Policy. The Acceptable Use and the following terms below constitute and are incorporated into our “Acceptable Use Policy”:
a. You agree not to use the Site to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party or governmental authority.
b. You agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including addresses or e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vii) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials; (viii) violate United States Postal Service or other service provider’s rules and regulations; (ix) send mail without first verifying the preview and proof of the mail piece.
c. In addition, you agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any unsent mail, undelivered mail, or denial of services for violations of these Terms or other reasons.
3.4 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 8, and/or reporting you to law enforcement authorities.
3.5 Feedback. If you provide Company with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Site, (ii) your violation of these Terms, (iii) your violation of applicable laws or regulations or (iv) your User Content. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
5.1 Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
5.2 Other Users. Each Site user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Site users are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.
5.3 Release. You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including your Account) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 2.5, Section 3 and Sections 4 through 10.
We respect the intellectual property of others and asks that users of our Site do the same. In connection with our Site, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, please see our DMCA Policy which is hereby incorporated by reference into these Terms.
10.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
10.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
a. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
b. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: Inkit Inc. 619 S 10th St #301, Minneapolis, Minnesota 55404. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
c. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Hennepin County, Minnesota. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
d. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
e. Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
f. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
g. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
h. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
i. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
j. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
k. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
l. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
m. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
n. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
o. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Hennepin County, Minnesota, for such purpose.
10.3 Export. The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
10.4 Disclosures. Company is located at the address in Section 10.10. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
10.5 Electronic Communications. The communications between you and Company use electronic means, whether you use the Site or send us emails, or whether Company posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
10.6 Applicable Law. This Agreement shall be governed by the laws of the State of Minnesota, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Hennepin County, Minnesota.
10.7 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Site. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
10.8 Copyright/Trademark Information. Copyright © 2019 Inkit Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
10.9 This contract is not governed by the United Nations Conventions on Contracts for the International Sale of Goods.
10.10 Contact Information:
Inkit Legal Department
619 S 10th St #301
Minneapolis, MN 55404
Email: [email protected]
Last Updated: January 1, 2019
1. What We Collect
We get information about you in a range of ways.
1.1 Information You Give Us. We collect your name, postal address, email address, phone number, fax number, username, password, demographic information (such as your gender and occupation) as well as other information you directly give us on our Site.
1.2 Information We Get From Others. We may get information about you from other sources. We may add this to information we get from this Site.
1.3 Information Automatically Collected. We automatically log information about you and your computer. For example, when visiting our Site, we log your computer operating system type, browser type, browser language, the website you visited before browsing to our Site, pages you viewed, how long you spent on a page, access times and information about your use of and actions on our Site.
We use your personal information as follows:
2.1 We use your personal information to operate, maintain, and improve our sites, products, and services.
2.2 We use your personal information to process and deliver contest entries and rewards.
2.3 We use your personal information to respond to comments and questions and provide customer service.
2.4 We use your personal information to send information including confirmations, invoices, technical notices, updates, security alerts, and support and administrative messages.
2.5 We use your personal information to communicate about promotions, upcoming events, and other news about products and services offered by us and our selected partners.
2.6 We use your personal information to link or combine user information with other personal information.
2.7 We use your personal information to protect, investigate, and deter against fraudulent, unauthorized, or illegal activity.
2.8 We use your personal information to provide and deliver products and services requested by customers.
3. Sharing of Personal Information
We may share personal information as follows:
3.1 We may share personal information with your consent. For example, you may let us share personal information with others for their own marketing uses. Those uses will be subject to the privacy polices of such others.
3.2 We may share personal information when we do a business deal, or negotiate a business deal, involving the sale or transfer of all or a part of our business, or assets. These deals can include (without limitation) any merger, reorganization, recapitalization, spin-off, split-off, split-up, financing, acquisition, or bankruptcy transaction or proceeding.
3.3 We may share personal information for legal, protection, and safety purposes.
3.4 We may share information to comply with laws, including court orders or agency investigations.
3.5 We may share information to respond to lawful requests and legal processes.
3.7 We may share information in an emergency. This includes protecting the safety of our employees and agents, our customers, or any person.
3.8 We may share information with those who need it to do work for us.
3.9 We may also share aggregated and/or anonymized data with others for their own uses.
Our marketing emails tell you how to “opt-out.” If you opt out, we may still send you non-marketing emails. Non-marketing emails include emails about your accounts and our business dealings with you.
You may send requests about personal information to our Contact Information below. You can request to change contact choices, opt-out of our sharing with others, and update your personal information.
You can typically remove and reject cookies from our Site with your browser settings. Many browsers are set to accept cookies until you change your settings. If you remove or reject our cookies, it could affect how our Site works for you.
Inkit Legal Department
619 S 10th St #301
Minneapolis, MN 55404
Email: [email protected]
We may change this Policy. If we make any changes, we will change the Last Updated date above.
Many business and people use Inkit, and we’re proud of the trust placed in us. In exchange, we trust you to use our services responsibly. You agree not to misuse the Inkit website, application, and services (the “Service“) or help anyone else to do so.
If you violate this policy, we may suspend or terminate your account. We may also suspend or terminate accounts according to our Terms of Service where we see behavior, content, or other factors that poses a risk to our Services.
1.1 Search, access, or create accounts for the Services by any means other than our publicly supported interfaces (for example, “scraping” or creating accounts in bulk).
1.2 Access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you haven’t been invited to.
1.3 Interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services.
1.4 Abuse referrals or promotions to get more discount credits than deserved.
1.5 Circumvent account storage and mailing limits.
1.6 Publish or share materials that are unlawfully indecent or pornographic, or that contain extreme acts of violence.
1.7 Advocate bigotry or hatred against any person or group of people based on their race, religion, ethnicity, sex, sexual preference, gender identity, disability, or impairment.
1.8 Violate the law in any way, including publishing, mailing, emailing or sharing material that’s fraudulent, defamatory, or misleading or violate the privacy or infringe the rights of others.
1.9 Probe, scan, or test the vulnerability of any system or network.
1.10 Breach or otherwise circumvent any security or authentication measures.
1.11 Send unsolicited communications, promotions or advertisements, or spam.
1.12 Send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”.
1.13 Promote or advertise products or services other than your own without appropriate authorization.
1.14 Sell the Services unless specifically authorized to do so.
2.1 Send mail or email that violates CAN-SPAM Laws.
2.2 Send mail or email that violates United States Postal Service and other service provider’s rules and regulations.
2.3 Send mail or email offering to sell illegal goods or services.
2.4 Pornography/adult/sexually explicit content.
2.5 Unfortunately some industries have higher-than-average abuse complaints, which can jeopardize our Services. We do not allow businesses that offer these types of products, services or content:
a. Pharmaceutical products.
b. Affiliate marketing.
c. Multi-level marketing.
d. List brokers or list rental services.
e. Work from home, make money online and lead generation opportunities.
f. Gambling products or services.
g. Escort, adult entertainment and dating services.
h. Get out of debt and credit repair services.
Certain types of content may cause higher-than-average abuse rates. In general, hard bounce rates should be less than 5%, and spam complaint rates should be less than 0.1%. We reserve the right to review, suspend, or disable accounts that exceed these rates or offer the following services, products, or content:
3.1 Real estate services.
3.2 Mortgages and loans services.
3.3 Insurance services.
3.4 Nutritional, herbal, and vitamin supplements.
3.5 Services that assist or support sending mail or email on behalf of third parties without creating or reviewing the content.
3.6 Adult entertainment, escort and dating services.
3.7 Additional prohibited actions.
We ask that our users to play their part in making Inkit a community that everyone wants to be a part of. You agree not to:
4.1 Send or mail spam. Spam can be in the form of bulk mail or one to one commercial mail. For bulk mail we use the definition, “unsolicited bulk mail.” For single commercial mail, we define spam as any message that violates CAN SPAM law. You must be able to point to an opt-in form or show other evidence of consent for bulk mail or email.
4.2 Put into your account or mail any material that wasn’t created by you, provided for you to use, or that would violate anyone’s rights. That includes photos, text, graphics, logos, and other content.
4.3 Use any misleading or incorrect names, addresses, email addresses, titles, or other information on the website or in any mail or email created or sent using our Service.
4.4 Decipher, decompile, disassemble, or reverse engineer any of the software on our Service, or in any way used or downloaded from the Service.
4.5 Use any of the software on our Service, or downloaded from the Service, to create a competing product.
4.6 Set up multiple accounts for any person or entity in order to send similar content, unless you’re part of a franchise or agency.
4.7 Upload or send to purchased, rented, third-party, co-reg, publicly available data, or partner lists of any kind.
4.8 Host content on our Service for any purpose other than to send mail or email campaigns.
4.9 Host images on our Service for any purpose other than for use in your mail or email campaigns.
4.10 Delete, bulk unsubscribe, or otherwise modify your list or orders in order to avoid our billing thresholds.
4.11 Share your login credentials or password.
4.12 Import or incorporate any of this information into any lists, mail or uploads to our servers: Social Security numbers, bank information, payment information, passwords, security credentials, or sensitive personal information.
As a direct mail and email service provider, it’s our responsibility to be extra aware about preventing spam-related abuse. We provide, and may update from time to time, articles outlining sending best practices in our knowledge base. You may only use Inkit in accordance with these best practices and our Terms of Service. We reserve the right to suspend or terminate your account if we find that you violate them.
Inkit Inc. (“Inkit”, “us“, “our“, and “we“) respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/
legislation/dmca.pdf, we will respond expeditiously to claims of copyright infringement committed using the Inkit service or the Inkit website (the “Site”) if such claims are reported to our Designated Copyright Agent identified in the sample notice below.
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following DMCA Notice of Alleged Infringement and delivering it to our Designated Copyright Agent. Upon receipt of Notice as described below, Inkit will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged content from the Site.
DMCA Notice of Alleged Infringement (“Notice”)
1. Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
2. Identify the material or link you claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site or the exact location where such material may be found.
3. Provide your full legal name, company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
5. Provide your full legal name and your electronic or physical signature.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
Deliver this Notice, with all items completed, to our Designated Copyright Agent:
Inkit Legal Department
619 S 10th St #301
Minneapolis, MN 55404
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:
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.
4.1 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.
5.1 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.
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.
Last Updated: January 1, 2019
This Service Level Agreement (“SLA”) governs the provision of the software services (“Software Service”) by Inkit Inc. (“Inkit”, “us” or “we“) to customer (“Customer“) if specified by the terms of the Inkit Customer Agreement (the “Agreement“). All capitalized terms not defined herein shall have the meanings given to them in the Enterprise Terms. “Service Levels” means Availability or Problem Resolution as specified below.
“Availability” means System Availability or Website Availability as specified below. The Software Service shall perform in accordance with the following standards: “System Availability” means Software Service monthly uptime of 99%, excluding scheduled downtime (of which Inkit will give at least one (1) week notice and which Inkit will schedule during the weekend hours from 6:00 p.m. PT Friday to 3:00 a.m. PT Monday), not to exceed forty-eight (48) hours in any twelve (12) month period. “Website Availability” means minimum webpage connect time of 2.0 seconds 90% of the time and 4.0 seconds 100% of the time.
2.1 Problem Resolution. Inkit will correct all problems that are reported by Customer or of which Inkit otherwise becomes aware in accordance with the following table. The priority level of the problems reported by Customer shall be determined by Inkit.
Response and Fix Time
The Software Service is not working, a significant function of the Software Service is not properly working or a significant number of users are unable to access or use some functionality.
Inkit will respond to and Inkit’s senior engineers will commence efforts to fix Priority 1 problems no later than one (1) hour after Customer’s report of such problem or Inkit’s detection of such problem, whichever is earlier. Inkit will use best and continuous efforts, twenty-four (24) hours per day, seven (7) days per week to provide an acceptable work-around for the Priority 1 problem, and will provide a permanent fix for the Priority 1 problem no later than thirty (30) days after Customer’s report of such problem or Inkit’s detection of such problem, whichever is earlier.
Functionality of the Software Service is impaired or some users are unable to access or use some functionality.
Inkit will respond to and Inkit’s senior engineers will commence efforts to fix Priority 2 problems no later than one (1) hour after Customer’s report of such problem or Inkit’s detection of such problem, whichever is earlier. Inkit will use reasonable and continuous efforts to fix Priority 2 problems during normal business hours, and if an acceptable work-around is provided, will provide a permanent fix of the Priority 2 problem no later than thirty (30) days after Customer’s report of such problem or Inkit’s detection of such problem, whichever is earlier.
Low impact to users of the Software Service.
Inkit will respond to Priority 3 problems within four (4) hours after Customer’s report of such problem or Inkit’s detection of such problem, whichever is earlier, during Customer’s regular business hours (or on the next business day, if the problem is reported outside of Customer’s regular business hours). Inkit will fix Priority 3 problems no later than thirty (30) days after Customer’s report of such problem or Inkit’s detection of such problem, whichever is earlier.
If Service Levels falls below the Availability or Fix Times during any calendar month, Customer may elect to receive a credit from Inkit against fees and payments due for the months following any month in which Service Levels do not meet the Availability or Fix Times, as liquidated damages and not as a penalty, an amount equal to ten percent (10%) of the Platform Amount fees due to Inkit for that month. In order to receive credit, Customer must submit a claim by notifying Inkit support. To be eligible, the claim must be received during the subsequent month’s billing cycle after which the incident occured. The claim must include (i) dates and times of each problem (ii) the logs that document the errors and corroborate Customer’s claimed outage. If the claim is accepted by Inkit and is less than the Availability, then Inkit will issue a credit within thirty days following the month your claim is accepted. Customer’s failure to submit a claim and provide the preceding information will disqualify Customer from receiving a credit.
Inkit will, in accordance with industry best practice, maintain detailed and comprehensive contingency plans against events which could affect the ability of Inkit to provide support in accordance with this SLA, including, without limitation, loss of production, loss of systems, loss of equipment, industrial relations problems with Inkit’s or Inkit’s subcontractors’ personnel, failures in the supply chain, failure of carriers and the failure of Inkit’s or its vendors’ equipment, computer systems or business systems.
This SLA is subject to occasional revision, and if we make any substantial changes, we may notify Customer by sending them an e-mail to the last e-mail address Customer provided to us (if any), and/or by prominently posting notice of the changes on our website. Customer is responsible for providing us with their most current e-mail address. In the event that the last e-mail address that Customer has provided us is not valid, or for any reason is not capable of delivering to Customer the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this SLA will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to Customer (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our website. These changes will be effective immediately for new users of the Inkit Technology. Continued use of the Inkit Technology following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
The Availability does not apply to any unavailability, suspension or termination of Inkit’s Software Services, or any other Inkit performance issues: (i) that result from a violation of Inkit’s Terms of Service or Inkit Customer Agreement; (ii) caused by factors outside of Inkit’s reasonable control, including any force majeure event or internet access or related problems beyond the demarcation point of Inkit’s Software Service; (iii) that result from any actions or inactions of Customer or any third party; (iv) that result from Customer’s software, equipment or other technology and/or third party software, equipment or other technology (other than third party equipment within Inkit’s direct control); (v) that result from any scheduled downtime as provided; or (vi) arising from Inkit’s suspension and termination of Customer’s right to use the Software Service in accordance with Inkit’s Terms of Service. If availability is impacted by factors other than those used in the Availability calculation, then Inkit may issue a credit at its own discretion.
Last Updated: July 1, 2020
Pursuant to the Master Subscription Agreement between Inkit and the Customer (“Agreement”) and any additional terms set forth in this HIPAA Addendum, the Customer intends to submit Protected Health Information, as defined in 45 CFR §160.103 (“PHI”), to Inkit’s Services, either directly or indirectly, and Inkit has agreed to store and process such PHI subject to the terms of a Business Associate Addendum between the Parties and the terms of this HIPAA Addendum. Capitalized terms used but not defined in this HIPAA Addendum have the meanings given to them in the Agreement.
1. The Customer agrees that, in connection with the use of the Services to collect or store PHI, the Customer shall notify Inkit in writing of: (i) the type of PHI being sent to, or collected by, the Services by or on behalf of the Customer; (ii) the way that the PHI is being submitted to the Services (e.g., by API); and (iii) the specific end user attributes or events related to the submission of any PHI.
2. The Customer acknowledges and agrees that, if the Customer uses any third-party integrations with the Services (such as print, mail, or fulfillment functionalities provided by third parties), such third-party integrations may not be HIPAA compliant and Inkit is not liable for any non-compliance, data breaches, or damages that may arise as a result of the Customer’s use of any such third-party integrations.
3. The Customer is responsible for securing and controlling its logins and API keys related to the Services. Inkit urges the Customer to use IP whitelisting for dashboard and server usage and an API key secret manager. Inkit is not liable to the Customer for violations of HIPAA arising from any incidents, non-compliance, data breaches, or damages that are attributable, directly or indirectly, to the Customer’s failure to protect its logins or API keys related to the Services.
4. The Customer agrees that: (i) it shall not store or submit to the Services medical reports, medical records, or medical images; and (ii) it shall use the Services exclusively for engagement, retention, customer relationship management, and marketing purposes and not as part of any patient treatment. The Customer acknowledges that Inkit does not warrant the availability of PHI maintained through the Services and that the Customer is responsible for ensuring that all PHI submitted to or stored on the Services exists elsewhere in duplicate.
5. The Customer is exclusively responsible, and Inkit has no liability to the Customer for, the Customer’s compliance with HIPAA in connection with the Customer’s export or transfer, directly or indirectly, of PHI from or via the Services.
6. Inkit disclaims any liability for violations of HIPAA arising from the Customer’s use of the Services to send messages or other materials that contain PHI or that are related to clinical quality issues, patient safety issues, clinical or medical care, or patient health-related issues.
7. The Customer will be provided with custom HTTPS endpoints for ingestion of Customer Data, including PHI, into the Services in a HIPAA-compliant manner. The Customer acknowledges that it is the Customer’s responsibility to ensure that Customer Data, including PHI, sent via API uses these endpoints and failure to do so may result in processing of the Customer Data in a non-HIPAA-compliant manner. Inkit is not liable to the Customer for breaches of HIPAA arising from the Customer’s failure to use the custom HTTPS endpoints provided by Inkit.
Except as modified by this HIPAA Addendum, the Agreement remains unmodified and in full force and effect. The Customer hereby ratifies and reaffirms acceptance of all terms and conditions of the Agreement.
Last Updated: July 1, 2020
This HIPAA Business Associate Addendum (the “BAA”) is made a part of, and incorporated into, the Agreement. The purpose of this BAA is to implement certain requirements of the Health Insurance Portability and Accountability Act of 1996 and the rules and regulations promulgated thereunder, as supplemented and amended by the requirements of Subtitle D of the Health Information Technology for Economic and Clinical Health (HITECH) Act provisions of the American Recovery and Reinvestment Act of 2009 and the rules and regulations promulgated thereunder (collectively, “HIPAA”). The Parties acknowledge that those regulations include both the federal privacy regulations, as amended from time to time, issued pursuant to HIPAA and codified at 45 CFR Parts 160 and 164 (Subparts A & E) (the “Privacy Rule”), and the federal security regulations, as amended from time to time, issued pursuant to HIPAA and codified at 45 CFR Parts 160 and 164 (Subparts A& C) (the “Security Rule”).
In the course of providing the Services to the Customer pursuant to the Agreement, Inkit may, on behalf of the Customer, receive, maintain, or transmit information entered into the Services as Customer Data that constitutes Protected Health Information, as defined in 45 CFR §160.103 (“PHI”), and as a result may, for certain purposes and under certain circumstances, be deemed a Business Associate, as such term is defined in 45 CFR §160.103, under HIPAA. This BAA governs the Customer’s and Inkit’s respective responsibilities with respect to PHI when Inkit acts as a Business Associate to the Customer, including Inkit’s Use and Disclosure of PHI, as such terms are defined in 45CFR §160.103.
Capitalized terms used but not defined in this BAA have the meaning given to them in the Agreement. If any such term is not defined in the Agreement, then such term has the meaning given to it under HIPAA.
The Parties hereby agree as follows:
The Customer shall Use and Disclose PHI, including in any data export of PHI, only as permitted by HIPAA. The Customer shall not authorize, request, or require Inkit to Use or Disclose PHI in any manner that would violate HIPAA if the Use or Disclosure were carried out by the Customer, except as permitted under HIPAA and set forth in this BAA. The Customer shall not voluntarily add any limitation to any notice of privacy practices or agree to any restriction request to the extent that such limitation or restriction would further limit Inkit’s Use or Disclosure of PHI under this BAA. To the extent that the Customer is required by law to include a limitation in its notice of privacy practices or to agree to a restriction request that further limits Inkit’s Use or Disclosure of PHI under this BAA, the Customer shall immediately notify Inkit of such limitation or restriction. To the extent that an Individual revokes a consent, authorization, or permission that results in further limitation on Inkit’s Use or Disclosure of PHI under this BAA, the Customer shall immediately notify Inkit of such limitation.
Inkit shall Use or Disclose PHI only in the manner and for the purposes set forth in this BAA and not in any other manner or for any other purposes. The Customer hereby authorizes Inkit to do the following:
2.1 Use and Disclose PHI as necessary to provide the Services, to prevent or address service or technical problems, and to perform support services to the Customer, so long as such Use or Disclosure would not violate HIPAA if done by the Customer; and
2.2 Use and Disclose PHI for Inkit’s proper management and administration, provided that any Disclosure is (a) Required by Law or (b) Inkit receives reasonable assurances from the person to whom the PHI is disclosed that it will be held confidentially and Used or further Disclosed only as Required by Law or for the purposes for which it was Disclosed to the person and that the person will notify Inkit of any instances of which the person is aware in which the confidentiality of the PHI has been breached.
2.3 Use PHI to create de-identified information in accordance with 45 CFR§164.514(b), and such resulting de-identified information shall no longer be subject to HIPAA or this BAA.
For clarity, Inkit makes no representations about the Use and Disclosure of PHI by any Third-Party Provider or Third-Party Vendor accounts and/or websites operated by or on behalf of the Customer with respect to which the Customer is using the Services.
In connection with its receipt, maintenance, or transmission of PHI on behalf of the Customer, Inkit agrees to do the following:
3.1 in accordance with 45 CFR §164.502(e)(1), ensure that any Subcontractors that receive, maintain, or transmit PHI on behalf of Inkit agree to restrictions and conditions no less restrictive than those that apply to Inkit in this BAA with respect to such PHI;
3.2 use administrative, technical, and physical safeguards, and comply, where applicable, with the Security Rule with respect to any PHI that constitutes Electronic Protected Health Information, to prevent Use or Disclosure of PHI other than as provided for by this BAA;
3.3 comply with the applicable requirements of the Security Rule; and
3.4 to the extent Inkit is to carry out the Customer’s obligations under the Privacy Rule, comply with the requirements of the Privacy Rule that apply to the Customer in the performance of those obligations; notwithstanding the foregoing, the Parties acknowledge that, under the Agreement and this BAA, unless otherwise agreed upon by the Parties in writing, Inkit has no obligations to carry out any of the Customer’s obligations under the Privacy Rule.
The Parties acknowledge that Inkit makes no representations about the accuracy of PHI that is received, maintained, or transmitted by or on behalf of the Customer by the Services.
4.1 Inkit shall report to the Customer any Use or Disclosure of PHI not provided for in this BAA of which Inkit becomes aware, including any Breach of Unsecured Protected Health Information in accordance with 45 CFR §164.410. In addition, Inkit shall provide to the Customer all information required by 45CFR §164.410(c) to the extent known and provide any additional available information reasonably requested by the Customer for purposes of investigating the Breach. For purposes of this BAA, “Breach” means the acquisition, access,Use, or Disclosure of PHI in a manner not permitted by the Privacy Rule that compromises the security or privacy of the PHI as defined, and subject to the exclusions set forth, in 45 CFR §164.402.
4.2 Inkit shall be required to report to the Customer, without unreasonable delay, any successful Security Incidents pertaining to PHI of which Inkit becomes aware, except that this section hereby serves as notice, and no additional reporting shall be required, of the regular occurrence of unsuccessful attempts at unauthorized access, use, disclosure, modification, or destruction of PHI, and unsuccessful attempts at interference with systems containing PHI.
Inkit shall make its internal practices, books, and records relating to the Use and Disclosure of PHI available to the Secretary of the United States Department of Health and Human Services for purposes of determining the Customer’s compliance with HIPAA.
Inkit shall forward to the Customer any requests Inkit receives from an Individual for access to the Individual’s PHI that is entered in the Services by the Customer to which the Customer shall respond in accordance with the requirements of 45 CFR §164.524.By virtue of providing the Services, Inkit shall make available to the Customer all PHI that is entered in the Services by or on behalf of the Customer, including PHI about an Individual, to facilitate the Customer’s compliance with the requirements of 45 CFR §164.524.
The Customer shall be exclusively responsible for responding to all requests by Individuals for amendment to their PHI in accordance with HIPAA. By virtue of providing the Services, Inkit shall make available to the Customer all PHI that is entered in the Services by or on behalf of the Customer, including any PHI required to be made available for amendment in accordance with 45 CFR §164.526, in a manner that allows the Customer to reasonably incorporate any amendments to the PHI in accordance with 45 CFR §164.526.
Inkit shall, in accordance with and as required by 45 CFR §164.504(e)(2), document Disclosures of PHI made by Inkit and maintain information related to such Disclosures. Inkit shall make related information reasonably available to the Customer to assist the Customer to comply with its legal obligations under 45 CFR §164.528 and for the Customer to respond to requests by Individuals for an accounting of Disclosures of their respective PHI.
Upon termination of the Agreement, the Customer may export Customer Data submitted to the Services in accordance with the Agreement and Customer Data submitted to the Services will be securely over written or deleted by Inkit, as set forth in the Agreement. Such data deletion process is subject to applicable legal requirements. If export or destruction of Customer Data that constitutes PHI is not feasible, Inkit shall extend the confidentiality and security protections of this BAA to that Customer Data and limit further Uses and Disclosures of such Customer Data to those purposes that make the return or destruction of the Customer Data infeasible.
In the event either Party becomes aware that the other Party has engaged in a pattern of activity or practice that constitutes a material breach or violation of this BAA, the non-breaching Party may request in writing that the breaching Party cure the breach or violation.If the breach or violation is not cured within 30 days of the written notice, the non-breaching Party may terminate this BAA, the Agreement, and any outstanding Order Form(s).
The Parties shall take such action as is necessary to amend the Agreement and this BAA from time to time as is necessary for the Parties to comply with changes to the rules and regulations under HIPAA. If the Parties cannot agree as to a necessary amendment, either Party may terminate the Agreement, any outstanding Order Form(s), and this BAA with 30 day prior written notice to the other Party.
Any ambiguity in this BAA shall be resolved to permit the Parties to comply with HIPAA.
Last Updated: July 1, 2020
These Standard Contractual Clauses form part of the Data Processing Addendum between Inkit Inc. and the Customer or any applicable Authorized Affiliate (the “DPA”) to reflect the parties’ agreement with regard to the Processing of Personal Data (as defined in the DPA). For purposes of these Standard Contractual Clauses, when and as applicable, the Customer and any applicable Authorized Affiliate are each the data exporter, and the Customer’s signing of the DPA or an Agreement referencing the DPA, or a Customer’s Affiliate signing an Order Form under an Agreement referencing the DPA, shall be treated assigning of these Standard Contractual Clauses and their appendices. All capitalized terms not defined herein have the meaning set forth in the DPA.
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
Name of the data exporting organisation: Customer or Customer Authorized Affiliate as set forth in the DPA or any applicable Order Form
Address:as set forth in the DPA or any applicable Order Form
Tel./ Fax/email: as set forth in the DPA or any applicable Order Form
Other information needed to identify the organisation: Not applicable
(the data exporter)
Name of the data importing organisation: Inkit Inc.
Address: 619 S 10th St., #301, Minneapolis, MN 55404
Tel: 612-223-3000; email: [email protected]
Other information needed to identify the organisation: Not applicable
(the data importer)
each a “party”; together“the parties”,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) 'the data exporter'means the controller who transfers the personal data;
(c) 'the data importer'means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss,alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a)to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g),Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing,including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfill its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
APPENDIX 1 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
The Member States may complete or specify,according to their national procedures, any additional necessary information to be contained in this Appendix.
Details relevant for this Appendix 1,completed by the parties, are available in Schedule 2 to the DPA.
APPENDIX 2 TO THE STANDARD CONTRACTUAL CLAUSES
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Refer to Inkit’s Security, Privacy, and Architecture Datasheet attached as Schedule 1 to the DPA.
 Parties may reproduce definitions and meanings contained in Directive 95/46/EC within this Clause if they considered it better for the contract to stand alone.
 Mandatory requirements of the national legislation applicable to the data importer which do not go beyond what is necessary in a democratic society on the basis of one of the interests listed in Article 13(1) of Directive 95/46/EC, that is, if they constitute a necessary measure to safeguard national security, defence, public security, the prevention, investigation, detection and prosecution of criminal offences or of breaches of ethics for the regulated professions, an important economic or financial interest of the State or the protection of the data subject or the rights and freedoms of others, are not in contradiction with the standard contractual clauses. Some examples of such mandatory requirements which do not go beyond what is necessary in a democratic society are, interalia, internationally recognised sanctions, tax- reporting requirements or anti-money-laundering reporting requirements.
 This requirement may be satisfied by the subprocessor co-signing the contract entered into between the data exporter and the data importer under this Decision.