iQuatic Terms & Conditions

DIGITAL INSIGHTS SERVICE TERMS AND CONDITIONS

DEFINITIONS
1. “Additional Services” means any Professional Services that are outside the description of Professional Services set forth in a particular Statement of Work.
2. “Inventions” means work product or tangible or intangible results produced by or with Digital Insights pursuant to the Agreement, including during the performance of Professional Services.
3. “Professional Services” means the consulting, implementation, training or other service provided by Digital Insights to Customer pursuant to the Quotation and an associated Statement of Work.
4. “Term” means the duration of the Agreement.
FEES
1. Customer shall pay to Digital Insights the fees for Software and Services provided herein, in the amounts set forth in the applicable Quotation, within 30 days from the date of the applicable invoice, unless otherwise stated in the Quotation or agreed to by the parties.
2. Except as expressly set forth in the Contract, all purchases are non-cancelable and all fees are non-refundable.  Customer shall have no right to withhold fees under the Agreement, including, without limitation, for alleged defects in the Software and/or Services.
3. Fees described in the Agreement do not include federal, state or local sales tax, VAT, GST, foreign withholding, use, property, excise, service or other taxes now or hereafter levied, all of which shall be Customer’s responsibility.  If Digital Insights is required to pay any such taxes, Customer shall reimburse Digital Insights for such and Customer agrees to indemnify Digital Insights for any such taxes and related costs, interest, fees or penalties paid or owing by Digital Insights hereunder.
4. The Customer agrees to pay Digital Insights for travel expenses 30 days from the invoice date.  Digital Insights will invoice Customer monthly for travel expenses.  Mileage rates shall be charged to Customer as per IRS regulations.  Airfare, lodging, rental car, meals, and other travel expenses are billed at actual Digital Insights costs.  Digital Insights personnel will use best efforts for reasonable travel expenses.  All rates are subject to change by Digital Insights.
5. Fees shall be renewed automatically on an annual or monthly basis unless either party provides thirty (30) days written notice of non-renewal to the other party. Payment is due prior to or on the first day of the next period. If the Fees should lapse due to non-payment, a reactivation fee will be charged.
PROFESSIONAL SERVICES
1. General. These Services Terms and Conditions apply to the Professional Services provided by Digital Insights to Customer pursuant to mutually-agreed upon Statements of Work which are incorporated into and made a part of specific Quotations. Each Statement of Work will specify the Professional Services to be performed by Digital Insights.
2. Non-Solicit and Non-Hire. Customer agrees not to solicit or hire, on a temporary or permanent basis, without the express written consent of Digital Insights, any of Digital Insights’ personnel during the Term and for a period of twelve (12) months after the termination or expiration of the Agreement.
3. Professional Services Responsibilities. Each Statement of Work shall reflect the responsibilities and requirements of both Digital Insights and Customer.
4. Change Requests. Any modifications to a Statement of Work must be mutually agreed upon in writing. “In writing” includes emails ONLY for the purposes of authorizing changes to the Expense parameters in the relevant Statement of Work. Customer shall designate an authorized representative within each Statement of Work to approve Professional Services fees or expenses on behalf of Customer. If Customer requests Additional Services, Digital Insights will advise Customer, to the best of its ability based on information available, of any additional compensation and any modifications to the delivery schedule that would be needed to perform such Additional Services. Digital Insights shall perform or provide such Additional Services upon the parties’ written agreement regarding such additional compensation and modifications to the delivery schedule.
TERM AND TERMINATION
1. These Services Terms and Conditions shall remain in effect for the Term or until terminated as set forth herein.
2. Digital Insights may terminate the Agreement, effective upon written notice to Customer, if Customer: (a) breaches a payment obligation; (b) breaches a material provision of the Agreement; or (c) files or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
3. No expiration or termination of the Agreement shall affect Customer’s obligation to pay all fees payable to Digital Insights prior to such expiration or termination. Sections 6 and 8 shall survive expiration or termination of the Agreement.
LIMITED WARRANTY
1. LIMITED WARRANTY. Digital Insights warrants and represents that it and its employees and agents have all training, skills, tools, and equipment necessary to competently perform the Professional Services described herein and that such services shall be performed in a timely, professional, and high quality manner.
2. NO OTHER WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.a. ABOVE, THE PROFESSIONAL SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIGITAL INSIGHTS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY OF INFORMATIONAL CONTENT, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, DIGITAL INSIGHTS DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THIRD PARTY CONTENT PROVIDED AS PART OF THE PROFESSIONAL SERVICES.
LIMITATION OF LIABILITY
1. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DIGITAL INSIGHTS OR ITS SUPPLIERS, CONTRACTORS OR AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS-INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE AGREEMENT INCLUDING BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, LOSS OR CORRUPTION OF DATA, FAILURE TO UPDATE OR BACKUP, FAILURE TO PROVIDE ACCURATE INFORMATION, OR SECURITY BREACHES, EVEN IF DIGITAL INSIGHTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. DAMAGE CAP. IN NO EVENT WILL DIGITAL INSIGHTS OR ITS SUPPLIERS', CONTRACTORS’ OR AGENTS’ AGGREGATE LIABILITY UNDER THE AGREEMENT FOR ANY REASON EXCEED ONE THOUSAND DOLLARS ($1,000). THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
PROPRIETARY RIGHTS
1. Professional Services. All Inventions shall be the exclusive property of Digital Insights. With the respect to any Invention, Digital Insights hereby grants to Customer a non-exclusive, non-transferable license to use such Inventions in the normal course of Customer’s business during the Term.
2. Animal Data. Customer owns its animal data. Customer grants Digital Insights an exclusive, royalty-free, perpetual license to Customer animal data to use, copy, distribute and create derivative works for any purpose. Any Customer animal data used, copied or distributed by Digital Insights for a purpose other than providing services to Customer will be aggregated and will not be linked directly to Customer name or business address. Digital Insights owns any derivative works of such Customer animal data.
3. Feedback. To the extent that Customer provides any ideas, reports or other feedback to Digital Insights as part of Customer’s interactions with Digital Insights or through use of the Services, Customer hereby freely assigns all right, title and interest in such ideas, reports and feedback to Digital Insights, without further compensation, and shall execute all necessary documentation as may be reasonably requested by Digital Insights to effect such assignment.
4. Not Confidential Information. Information or data to which Digital Insights has rights under this Section shall not be deemed Confidential Information.
RELATIONSHIP OF PARTIES
1. The relationship of Digital Insights to Customer shall be one of independent contractor, and the parties do not intend to create any partnership, joint venture, employment or agency under the Agreement.
GENERAL
1. Choice of Law. The Agreement will be governed by the laws of the State of Minnesota, USA, without reference to its choice of law rules. Customer hereby irrevocably consents to the exercise of exclusive jurisdiction and venue by the state or federal courts in Hennepin County, Minnesota for any claim relating to the enforcement of, or any rights under, the Agreement. The Parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods.
2. Exports. Customer represents and warrants that it is not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons (“SDN List”) and is not otherwise legally prohibited to use the Services. Customer will comply with all applicable customs, technical compliance and country of origin requirements of each country into which the Software is imported. Customer will not export or re-export, directly or indirectly, the Software to any country where such export or transmission is restricted or prohibited by local law, regulations, or statutes or by U.S. legal regulations or statutes or to any individual on the SDN List or the U.S. Commerce Department’s Table of Denial Orders..
3. Complete Agreement. The Agreement represents the entire Agreement between Customer and Digital Insights with respect to matters covered herein and supersedes all previous proposals and/or agreements, whether written or oral. No variation or modification of any term of the Agreement shall have effect, unless in writing and signed by authorized representatives of Customer and Digital Insights.
4. Waiver and Severability. No waiver of any provision of the Agreement will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Any waiver of either party of any provision of the Agreement will not be construed as a waiver of any other provision of the Agreement, nor will such waiver operate as or be construed as a waiver of such provision respecting any future event or circumstance. If any term or provision of the Agreement is held invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
5. Force Majeure. Except for Customer’s obligation to pay fees hereunder, neither party shall be responsible for any delay or failure in performance, caused by flood, riot, insurrection, fire, earthquake, strike, communication line failure and power failure, explosion or act of God, death of, or incapacitating illness or injury to, key personnel or any other force or cause beyond the control of the party claiming the protection of this paragraph.
6. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Digital Insights’ prior written consent, which consent Digital Insights may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under the Agreement for which Digital Insights’ prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under the Agreement. Any purported assignment, delegation or transfer in violation of this Section is void. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
7. Arbitration. Any dispute arising under the terms of the Agreement that is not resolved within a reasonable period of time by the authorized representatives of Digital Insights and the Customer shall be brought to the attention of the Managing Director (or designee) of Digital Insights and the Chief Executive Officer (or designee) of the Customer for joint resolution at Digital Insights’ offices. If resolution of the dispute through discussion between the aforementioned executive officers is pursued without success, the issue will go to arbitration before a mutually agreed upon party.
8. Company Information and Notice. Should Customer have any questions concerning the Agreement, or if Customer desires to contact Digital Insights for any reason, please contact Digital Insights at the address set forth on the Contract cover page. Digital Insights may update its contact information from time to time. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Contract cover page.
CONFIDENTIALITY
1. “Confidential Information” means information that one party receives from the other party through the operation of the Agreement, which information is clearly marked as confidential or proprietary at the time of disclosure. Notwithstanding the foregoing, Confidential Information shall include Digital Insights Software, Services and Documentation.
2. Dissemination of Confidential Information shall be limited to employees, contractors or agents that are directly involved with discussions contemplated by the Agreement, and even then only to such extent as is necessary and essential. The Parties shall inform their employees, contractors and agents of the confidential nature of the information disclosed hereunder and cause all such employees, contractors and agents to abide by the terms of the Agreement. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any unauthorized party without prior express written consent of the disclosing Party or unless required by law or court order. If a Party is required by law or court order to disclose Confidential Information of the other Party, they shall give the disclosing Party prompt notice of such requirement so that an appropriate protective order or other relief may be sought.
3. Confidential Information will be used only in connection with discussions or services contemplated by the Agreement; no other use will be made of it by the receiving Party, it being recognized that both Parties have reserved all rights to their respective Confidential Information not expressly granted herein. All documents containing Confidential Information and provided by the disclosing Party shall remain the property of the disclosing Party, and all such documents, and copies thereof, shall be returned or destroyed upon the request of the disclosing Party. Documents prepared by the receiving Party using Confidential Information of the disclosing Party, or derived therefrom, shall be destroyed upon request of the disclosing Party, confirmation of which shall be provided in writing. The receiving Party, however, may keep one copy of any document requested to be returned or destroyed in the files of its legal department or outside counsel for record purposes only.
4. Confidential Information shall not include that which:
  1. is in the public domain prior to disclosure by disclosing Party;
  2. becomes part of the public domain, by publication or otherwise, through no unauthorized act or omission on the part of the receiving Party;
  3. is lawfully in the receiving Party's possession prior to disclosure by the disclosing Party; or
  4. is independently developed by an employees, contractors or agents of the receiving Party with no access to the disclosed Confidential Information.
5. The period for disclosure of Confidential Information between the Parties under the Agreement shall endure for the Term of the Agreement. The confidentiality obligations imposed by the Agreement, including but not limited to non-disclosure and non-use, however, shall endure for three (3) years from the date the Term (or any renewal thereof) expires or the date when early termination of the Agreement becomes effective; provided, however, that Customer’s confidentiality obligations regarding Confidential Information that is Digital Insights’ services, software, or documentation shall survive indefinitely.