IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE WEBSITE OR SERVICES. IF YOU ACCESS OR USE THE SOFTWARE, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS WHICH FORM A LEGAL AGREEMENT BETWEEN YOU AND ITI Digital AND ITS SUCCESSORS AND ASSIGNS.
IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
SERVICES, LICENSE GRANT AND RESTRICTIONS
1.2. API License Grant. If set out in your SaaS Order, and subject to the terms and conditions of this Agreement, ITI Digital grants to Customer a non-exclusive, non-transferable, limited license: (i) to integrate the ITI Digital API into Customer’s content management system and/or websites or applications (“Customer CMS”) to enable content curation, organization of digital properties and assets, rights management and publication of UGC and/or Customer Content. The license granted herein is for personal use (if Customer is an individual subscriber) or internal business use (if Customer is a corporate entity).
1.3. ITI Digital Platform License Grant. ITI Digital owns and operates a software platform through which the Services are delivered (the “ITI Digital Platform”). Subject to the terms and conditions of this Agreement, ITI Digital grants Customer a non-exclusive, non-transferable license to access and use the features of the ITI Digital Platform which are part of the subscription plan ordered by Customer in the SaaS Order.
1.4. Restrictions. Customer shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Service the ITI Digital API, ITI Digital Platform or any component of the same or content, scripts, methodologies, code or other know-how and intellectual property made available by ITI Digital as part of the ITI Digital API, ITI Digital Platform or the Services (collectively “ITI Digital API”) available to any third party, unless otherwise permitted by this Agreement. Customer shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the ITI Digital IP except to the extent expressly agreed upon in writing by Customer or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service or ITI Digital IP; or (d) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service or do the same in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Service.
Customer acknowledges that Customer acquires absolutely no rights or licenses to the Services or the ITI Digital IP other than the limited right to use the Services and the ITI Digital IP in accordance with the terms and conditions of this Agreement. All other use is strictly prohibited.
1.6. Service Limitations. ITI Digital will not be responsible for any lost data due to server crashes or other events outside ITI Digital’s reasonable control.
PAYMENT TERMS AND TAXES
2.1. Payment Terms. In consideration for the receipt of the Services and the licenses and other consideration granted hereunder, Customer shall pay ITI Digital the properly invoiced and undisputed Fees specified on the SaaS Order. Fees for the Services will be invoiced annually in advance unless otherwise provided on the applicable SaaS Order. Unless otherwise stated, all undisputed payments shall be made to ITI Digital within thirty (30) calendar days after receipt of the invoice.
2.2. Invoicing and Payment of Taxes. All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Customer. Any such taxes that are imposed shall be the sole responsibility of Customer.
2.3. Overdue Payments. Any undisputed amounts properly due and not paid by the Customer by the due date will accrue late charges each month at the rate of one and a half percent (1.5%.) of the undisputed outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
2.4. Suspension of Services. If Customer does not pay a properly rendered and undisputed invoice within thirty (30) days of the Customer’s receipt of a written notice from ITI Digital that the amount is overdue, in addition to any of its other rights or remedies, ITI Digital reserves the right to suspend the Service provided to Customer, until such amounts are paid in full.
PROPRIETARY RIGHTS, DATA TERMS AND CONFIDENTIALITY
3.1. Exclusive Ownership. The Services and the ITI Digital IP are proprietary to ITI Digital and its licensors and are protected by copyright and other intellectual property laws. All right, title and interest, including all copyright and other intellectual property rights, in and to the Services and the ITI Digital IP are owned by ITI Digital or its licensors. Except for the rights and licenses granted in this Agreement, Customer acknowledges and agrees that any and all intellectual property rights to or arising from the software and technology used to provide the Website and the Services are and shall remain the exclusive property of ITI Digital and its licensors. Nothing in this Agreement is intended to transfer any such IP rights to, or to vest any such intellectual property rights in, Customer. Customer is only entitled to the limited use of the intellectual property rights granted to Customer in this Agreement. Customer will not take any action to jeopardize, limit or interfere with ITI Digital’s intellectual property rights. Any unauthorized use of ITI Digital ‘s intellectual property rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including without limitation copyright laws and trademark laws.
3.2. Customer Content. As between Customer and ITI Digital, Customer own and retain ownership of customer content Customer provides, stores and processes through the Services (“Customer Content”). Customer hereby grant ITI Digital a worldwide, royalty-free, and non-exclusive license during the term of Customer’s subscription to access Customer Content in order to: (i) provide the Services, including storing, hosting and management of such content; and (ii) to create Pattern Data. “Pattern Data” means non-personally identifiable information, data and reports derived from or compiled through the Service, including but not limited to demographics data, mobility patterns, location data and trend data such as aggregated data and statistics indicating frequency of use and popularity of the Services. For greater certainty, Pattern Data is data that does not identify a specific customer or its end users and is data which does not relate to a specific customer’s business (including data relating to a specific customer’s locations that receive the Services). Pattern Data will be owned by ITI Digital and may be used for a variety of purposes including to improve ITI Digital’s products and the Services.
3.3. UGC. All third party photographs, images, materials, descriptions, content, videos, audio files, text files, information, code, or other content, trademarks, intellectual property, handles or other data (“UGC”) that is accessed by Customer through use of the ITI Digital API and ITI Digital Platform shall be retained by the applicable third party rights holder and subject to the rights of such third party and any applicable third party terms and conditions (e.g. Instagram, Facebook,) governing the use or access to such UGC. Customer acknowledges that ITI Digital must abide by the applicable rules and regulations of the social networks from which UGC is pulled through those networks and accordingly, use and availability of content from third party social networks is subject to change at any time based on the permissions granted to ITI Digital.
3.4. Content Disclaimers. Customer understands that the inclusion and availability of UGC through the Services does not imply ITI Digital’s endorsement of such content nor does ITI Digital make any claims regarding the accuracy or legality of any UGC or Customer Content.
3.5. Suggestions. ITI Digital shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its products, services and business any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Services.
4.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Customer Content, the Software, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
4.2. Obligations. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
WARRANTIES, DISCLAIMER AND LIMITATION OF LIABILITY
5.1. ITI Digital Warranties. ITI Digital represents and warrants to Customer that during the Term it will provide the Services in a workman like, professional manner, at the time of delivery there are no known viruses or destructive code in the ITI Digital API or ITI Digital Platform and the ITI Digital IP does not, to ITI Digital’s knowledge, infringe any third party intellectual property rights.
5.2. DISCLAIMER OF IMPLIED WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE ITI Digital IP ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, AND ITI Digital, ITS LICENSORS AND PARTNERS DISCLAIM ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR COLLATERAL, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY OR THAT THE SERVICES AND THE SOFTWARE ARE FREE OF VIRUSES OR OTHER DISABLING DEVICES, ARE ACCURATE, OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED OR THAT THE SERVICES AND THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ITI Digital IS NOT RESPONSIBLE FOR ANY ERRORS IN THE CONTENT DELIVERED USING THE ITI Digital IP OR SERVICES. CUSTOMER ACKNOWLEDGES THAT ITI Digital HAS NO CONTROL OVER UGC OR THIRD PARTY SITES. THE USE OR PERFORMANCE OF THE SERVICES OR UGC IS AT CUSTOMER’S OWN RISK AND AT THE RISK OF ANY USERS.
TERM AND TERMINATION
6.1. Services Period and Renewals. Subscriptions are for periods of time selected at the time Customer creates an account with ITI Digital as specified on the SaaS Order. Subscriptions will auto-renew at the end of the then current term. To avoid automatic renewal, either party must request termination at least thirty (30) days prior to the end of the then-current term (“Term“).
CHANGES TO SOFTWARE, SERVICES AND AGREEMENT
7.1. Changes to ITI Digital Technology. ITI Digital may alter, update or upgrade the ITI Digital Platform, ITI Digital API, and other components from time to time. Updates and upgrades to core framework and plug-ins will be processed automatically.
7.2. Changes to Services. ITI Digital may change the Services and/or other aspect of any of the Services at any time upon reasonable notice to Customer by posting the change on the Website, sending notice via an email to the email address Customer provide on registration, a message on Customer’s invoice, in writing, or any other notice method likely to come to Customer’s attention. Customer’s continued access to and use of the Services after the change has come into effect constitutes Customer’s acceptance of the change and Customer acknowledge and agree that (i) Customer will be deemed to have accepted the change, with no additional written agreement or express acknowledgement required; and (ii) Customer will continue to be responsible to pay for the Services unless Customer terminate in accordance with Section 6.2 above.
7.3. Changes to Fees. ITI Digital may change the fees for the Services from time to time which fee change will take effect from the next billing cycle.
SUPPORT AND MAINTENANCE
8.1. Technical Support. ITI Digital will provide basic support for the Services and will (i) use commercially reasonable efforts to make the Services available during the hours specified except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond ITI Digital ‘s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving ITI Digital employees), or Internet Services provider failures or delays, and (iii) provide the Services only in accordance with applicable laws and government regulations.
8.2. Maintenance Services. ITI Digital will provide updates and upgrades to the technology underlying the ITI Digital Platform from time to time to provide new features and improvements, bug fixes and error corrections which will be available across the ITI Digital Platform and the ITI Digital API.
8.3. Professional Services. One-off consulting and professional services may be requested and agreed with ITI Digital, including customized features and assistance with custom-website builds. All professional services shall be defined in a statement of work. If any work product or deliverables are generated through the provision of Professional Services under this Agreement (“Deliverables“), the parties will determine ownership of such Deliverables in the SaaS Order executed for the professional services. Notwithstanding the generality of the foregoing, any enhancements, modifications or other customizations to the ITI Digital technology will be owned by and vest in ITI Digital exclusively including all title and interest in and to all Deliverables including the benefit of all copyrights, trademarks, patents, trade secrets or other intellectual property rights pertaining thereto.
9.1. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ITI Digital NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES (WHETHER ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR TO ANY SERVICES PROVIDED TO CUSTOMER BY ITI Digital (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS)) FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF ITI Digital (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. IN NO EVENT SHALL ITI Digital ’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT THE AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT.
10.1. Customer Indemnity. Customer agrees on demand to indemnify, defend and hold ITI Digital, its affiliates and ITI Digital personnel harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of Customer’s (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) misuse of the Services including commercialization or use of UGC outside the permissions granted by the social network for such content.
DATA FAIR USAGE
ITI Digital is committed to delivering a Visual Marketing Platform for you to manage all your visuals in one place, whether that be photos or videos. We have developed this Data Fair Usage Policy to ensure that all customers get an optimal level of service.
11.1. Video Storage. We offer unlimited video storage as part of your ITI Digital license so that you can focus on running your business. Video storage is unlimited as long as you only upload videos that are used to run your business. Examples of behaviors that fall outside this fair usage policy include:
• Uploading videos that are for entertainment, such as movies
• Uploading the exact same video many times
• Uploading videos that belong to other organizations
In the event that we detect such behaviors, we will notify you by email so that you can remove certain videos that violate this fair usage policy. In the event that you do not take action within 10 business days of the email notification, we reserve the right to disable the upload functionality of your platform, and/or remove certain videos from your platform.
11.2. Video Bandwidth. The videos that you have in the ITI Digital platform can be viewed in your platform or shared via a sharing portal. These activities consume bandwidth. Each month, 200 GB of bandwidth is included in your ITI Digital license. In the event that your monthly bandwidth limit is exceeded, we will notify you by email so that you can either i) remove certain videos from your online properties or ii) upgrade your ITI Digital license to get a higher bandwidth limit. We will work with you closely to select the option that best fits your business needs. In the event that neither option is chosen within 10 business days of the email notification, we reserve the right to remove certain videos from your platform at our discretion.
12.1. Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither party shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
12.2. Prohibited Use. Use of the Services is unauthorized in any jurisdiction where the Services or any of the Content may violate any laws or regulations. Customer agrees not to access or use the Services in such jurisdictions. Customer agrees that Customer are responsible for compliance with all applicable laws or regulations. Any contravention of this provision (or any provision of this Agreement) is entirely at Customer’s own risk.
12.3. Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.
12.4. Logos. ITI Digital may refer to Customer in ITI Digital ’s customer list and may use Customer’s corporate name and logo for this purpose. For the avoidance of doubt, ITI Digital will not use Customer’s name, logo, any other trademark or trade-name of Customer’s for any other purposes without Customer’s prior consent.
12.5. Severability & Waiver. Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and the invalid, void or unenforceable portion will be severed from the Agreement. If ITI Digital does not take action against all breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.
12.6. Assignment. Customer is not allowed to assign this Agreement or any rights hereunder without the prior written consent of ITI Digital, such consent not to be unreasonably withheld. ITI Digital is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
12.7. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of Georgia without giving effect to any conflict of laws or provisions whether contained in Georgia or the laws of Customer’s current state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts of the State of Georgia. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.8. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between Customer and ITI Digital with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
If you have any questions regarding the terms and conditions stated above, please don't hesitate in contacting our team at .