These Terms were last modified on October 18, 2019.
1. The Platform
- 1.1 These Instabase Terms of Service (these “Terms”) apply to the features and functions provided by Instabase, Inc. (“Instabase”, “we”, or “us”) via www.instabase.com (the “Site”) (collectively, the “Platform”), unless you and Instabase have mutually executed a separate written agreement covering your right to access and use the Platform (in which case that agreement will govern). By accessing or using the Site or the Platform, you agree to be bound by these Terms. If you do not agree to these Terms, you are not allowed to use the Site or the Platform. The “Effective Date” of these Terms is the date you first use the Site, or access any part of the Platform.
- 1.2 If you are using the Site or accessing the Platform in your capacity as an employee, consultant or agent of a company or other entity, you represent that you are an employee, consultant or agent of that company or entity, and that you have the authority to bind that company or entity to these Terms. For the purpose of these Terms, you (and, if applicable, the company or entity that you represent) will be referred to as “Customer” or “you”.
- 1.3 Instabase reserves the right to change or modify these Terms, or any of our other policies or guidelines, at any time upon notice to you. We may provide that notice in a variety of ways, including, without limitation, sending you an email, posting a notice on the Site, or posting the revised Terms on the Site and revising the date at the top of these Terms. Any changes or modifications will be effective after we provide notice that these Terms have been modified. You acknowledge that your continued use of the Site or the Platform following such notice constitutes your acceptance of the modified Terms.
- 1.4 Instabase reserves the right – at any time, and without notice or liability to you – to modify the Site or the Platform, or any part of them, temporarily or permanently. We may modify the Platform for a variety of reasons, including, without limitation, for the purpose of providing new features, implementing new protocols, maintaining compatibility with emerging standards, or complying with regulatory requirements.
- 1.5 These Terms form a binding agreement between you and Instabase. Violation of any of the Terms below will result in the termination of your account(s).
- In order to use the Platform, you must first complete a registration process.
- (a) to provide accurate, current and complete information about you as part of the registration process (“Registration Data”);
- (b) to maintain the security of your password(s);
- (c) to maintain and promptly update your Registration Data, and any other information you provide to Instabase, and to keep it accurate, current and complete;
- (d) to accept all risks of unauthorized access to your Registration Data, and any other information you provide to Instabase, via your account(s) or password(s);
- (e) that you are responsible for maintaining the security of your account and safeguarding your password(s), and
- (f) that you will be fully responsible for any activities or transactions that take place using your account(s) or password(s), even if you were not aware of them.
4. Access Grant; Restrictions
- 4.1 Subject to your continued compliance with these Terms, Instabase hereby grants you a limited, non-exclusive, non-transferable license to access and use the Platform, solely for the purpose of evaluation or education (the “Permitted Purpose”), and not for any production or commercial use. You understand and agree that you must enter into a separate written agreement with Instabase, and pay the agreed-upon license fee, in order to access or use the Platform for any production or commercial purpose.
- 4.2 Instabase reserves all rights in and to the Platform that are not expressly granted to you in these Terms.
Except as expressly authorized by these Terms, you may not:
- (a) modify, disclose, alter, translate or create derivative works of the Site or the Platform;
- (b) use the Platform for any commercial or production purpose, or for any purpose other than the Permitted Purpose;
- (c) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Platform or any part of it;
- (d) offer any part of the Platform on a timeshare or service bureau basis;
- (e) allow or permit any third party to access or use the Platform;
- (f) use the Site or the Platform to store or transmit any viruses, software routines, or other code designed to permit anyone to access in an unauthorized manner, disable, erase or otherwise harm software, hardware, or data, or to perform any other harmful actions;
- (g) use or access the Site or the Platform for the purpose of building a competitive product or service, or copying any features or functions of the Site or the Platform (including, without limitation, the look-and-feel of the Site or the Platform);
- (h) interfere with or disrupt the integrity or performance of the Site or the Platform;
- (i) disclose to any third party any performance information or analysis relating to the Site or the Platform;
- (j) remove, alter or obscure any proprietary notices in or on the Site or the Platform, including copyright notices;
- (k) use the Site or the Platform or any product thereof for any illegal or unauthorized purpose, or in a manner which violates any laws or regulations in your jurisdiction;
- (l) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms that make up the Platform or any software, documentation, or data relating to the Platform, except to the limited extent that applicable law prohibits such a restriction; or
- (m) cause or permit any third party to do any of the foregoing.
- 5.1 If you publish or upload data, images, or content, or otherwise make (or allow any third party to make) material available by means of the Site or the Platform (collectively, “Content”), you agree that you are entirely responsible for such Content, and for any harm or liability resulting from or arising out of that Content. Your responsibility applies whether or not the Content in question constitutes text, graphics, or any other type of content, and whether or not you were the original creator or owner of the Content. You agree that you will be responsible for all Content on your account(s), even if placed there by third parties.
- By publishing or uploading Content to the Site or the Platform, you represent and warrant that:
- (a) the Content does not and will not infringe, violate or misappropriate the Intellectual Property Rights of any third party (where “Intellectual Property Rights” are defined as any patents, copyrights, moral rights, trademarks, trade secrets, or any other form of intellectual property rights recognized in any jurisdiction in the world, including applications and registrations for any of the foregoing);
- (b) you have obtained all rights and permissions necessary to publish and/or use the Content in the manner in which you have published and/or used it;
- (c) Instabase’s use of the Content for the purpose of providing the Platform (including, without limitation, downloading, copying, processing, or creating aggregations of the Content) does not and will not (i) violate any applicable laws or regulations, or (ii) infringe, violate, or misappropriate the Intellectual Property Rights of any third party;
- (d) you have fully complied with any third-party licenses relating to the Content;
- (e) the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive code; and
- (f) the Content does not and will not include any information that is subject to subject to confidentiality restrictions, security or privacy requirements, or any other law or regulation.
- 5.2 By submitting or uploading Content to the Platform, you grant Instabase a worldwide, royalty-free, and non-exclusive license
- (a) to use, reproduce, modify, adapt and publish that Content for the purpose of making the Platform available to you; and
- (b) to create aggregations and summaries of the Content or portions thereof and to use, disclose, and distribute such aggregations publicly to any third party in support of our business (both during the period that these Terms are in effect, and thereafter), provided that such aggregations and summaries do not directly or indirectly identify you or your Content. If you delete Content, Instabase will use reasonable efforts to remove it from the Platform. You acknowledge, however, that cached copies or other references to the Content may still be available.
- 5.3 Without limiting any of your representations or warranties with respect to the Content, Instabase has the right (but not the obligation) to reject or remove any Content, without liability or notice to you, that Instabase believes, in Instabase’s sole discretion:
- (a) violates these Terms or any Instabase policy,
- (b) violates or misappropriates the Intellectual Property Rights of any third party, or
- (c) is in any way harmful or objectionable.
6. Warranty Disclaimer
YOU ACKNOWLEDGE THAT THE SITE AND THE PLATFORM ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND THAT YOUR USE OF THE SITE AND THE PLATFORM IS AT YOUR SOLE RISK. INSTABASE DOES NOT WARRANT:
- (A) THAT THE SITE OR THE PLATFORM WILL MEET YOUR SPECIFIC REQUIREMENTS,
- (B) THAT THE SITE OR THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
- (C) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE,
- (D) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL THAT YOU PURCHASE OR OBTAIN THROUGH THE SITE OR THE PLATFORM WILL MEET YOUR EXPECTATIONS, OR (E) THAT ANY ERRORS IN THE SITE OR THE PLATFORM WILL BE CORRECTED. INSTABASE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- You agree, at your sole expense, to defend, indemnify and hold Instabase (and its directors, officers, employees, consultants and agents) harmless from and against any and all actual or threatened suits, actions, proceedings (whether at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of or relating to
- (a) your Content;
- (b) your use of the Site or the Platform; and
- (c) any other actual or alleged breach of any of your obligations under these Terms (including, among other things, any actual or alleged breach of any of your representations or warranties as set forth herein). You will not settle any such claim in any manner that would require Instabase to pay money or admit wrongdoing of any kind without our prior written consent, which we may withhold in our sole discretion.
8. Limitation of Liability
- 8.1 IN NO EVENT WILL INSTABASE’S TOTAL, AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF (OR INABILITY TO USE) ANY PART OF THE SITE OR THE PLATFORM EXCEED THE GREATER OF: (I) THE TOTAL AMOUNT YOU ACTUALLY PAID TO INSTABASE IN SUBSCRIPTION FEES TO USE THE PLATFORM DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE ACCRUAL OF THE FIRST CLAIM; OR (II) FIVE HUNDRED DOLLARS ($500). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
- 8.2 IN NO EVENT WILL INSTABASE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THESE TERMS OR YOUR USE (OR INABILITY TO USE) ANY PART OF THE SITE OR THE PLATFORM, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
- 8.3 THIS SECTION (LIMITATION OF LIABILITY) WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. Ownership; Reservation of Rights
- 9.1 As between the parties:
- (a) you own all right, title and interest in and to your Content; and
- (b) Instabase owns all right, title and interest in and to the Site and the Platform, and all Intellectual Property Rights therein. The look and feel of the Site and the Platform, including any custom graphics, button icons, and scripts are also the property of Instabase, and you may not copy, imitate, or use them, in whole or in part, without Instabase’s prior written consent. Instabase reserves all rights not expressly granted to you in these Terms, and Instabase does not grant any licenses to you or to any other party under these Terms, whether by implication, estoppel or otherwise, except as expressly set forth herein.
- 9.2 You acknowledge that any suggestions, comments, or other feedback that you provide to Instabase with respect to the Site, the Platform, or any other Instabase product or service (collectively, “Feedback”) will be owned by Instabase, including all Intellectual Property Rights therein, and will be and become Instabase’s Confidential Information (as defined below). You acknowledge and agree that Instabase will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback as Instabase sees fit, without obligation or restriction of any kind. At our request and expense, you agree to execute documents or take such further actions as we may reasonably request to help us acquire, perfect, and maintain our rights in the Feedback.
10. Term and Termination
- 10.1 These Terms will apply to you starting on the Effective Date, and will continue for as long as you are accessing or using the Site or the Platform.
- 10.2 Instabase, in its sole discretion, has the right to suspend your ability to use and/or access the Site or the Platform, without liability, for any reason, including, without limitation, under the following circumstances:
- (a) for scheduled or emergency maintenance to the Site or the Platform, or any part thereof;
- (b) if Instabase believes that you are using the Site or the Platform in violation of these Terms or applicable law;
- (c) if Instabase believes that your use of the Site or the Platform poses a security risk to us or to any third party; or
- (d) if required by law enforcement or government agency, or otherwise in order to comply with applicable law or regulation. Instabase also reserves the right to temporarily or permanently suspend your ability to access the Platform, without liability, if Instabase determines, in its sole discretion, that you are engaging in abusive or excessively frequent use of the Platform.
- 10.3 Either of us can terminate these Terms upon notice to the other if the other party breaches any of these Terms and fails to cure the breach within fifteen (15) days of receiving written notice of it from the non-breaching party. We reserve the right to terminate these Terms for cause immediately upon notice to you, and without giving you a cure period, if you breach any of these Terms relating to our intellectual property (including your compliance with the access grant and any restrictions) or our Confidential Information (defined below).
- 10.4 When these Terms terminate or expire:
- (a) you will no longer have the right to use or access the Site or the Platform as of the date of termination/expiration;
- (b) you will promptly return to us (or, if we request it, destroy) all of our Confidential Information (as defined in Section 12, below). Sections 1, 2, 4.2, and 5 through 13 will survive the termination or expiration of these Terms for any reason.
You acknowledge and agree that any Instabase names, trademarks, service marks, logos, trade dress, or other branding included on the Site or as part of the Platform (collectively, the “Marks”) are owned by Instabase and may not be copied, imitated, or used (in whole or in part) without Instabase’s prior written consent. All other trademarks, names, or logos referenced on the Site or the Platform (collectively, “Third-Party Trademarks”) are the property of their respective owners, and the use of such Third-Party Trademarks inure to the benefit of their respective owners. The use of such Third-Party Trademarks is intended to denote interoperability, and does not constitute an affiliation by Instabase or its licensors with any company or an endorsement or approval by that company of Instabase, its licensors, or their respective products or services.
12. Confidential Information
- 12.1 For the purposes of these Terms, “Confidential Information” means any non-public business or technical information of Instabase or its licensors or partners that Instabase discloses to you or which you access as a result of your use of the Site or the Platform, whether such information is provided in writing, orally, electronically, or by any other means, and including things like computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. For the purposes of these Terms, you agree that the Feedback and any non-public aspects of the Site or the Platform (including, without limitation the source code of any Instabase-proprietary software) will be deemed to be Instabase’s Confidential Information, regardless of whether it is marked as such.
- 12.2 You will not use Confidential Information, except as permitted by these Terms. You agree to maintain the Confidential in strict confidence and protect the Confidential Information using at least the same degree of care as you use for your own information of a similar nature, but in all events at least a reasonable degree of care. You agree to take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information, including, without limitation, disclosing Confidential Information only to your employees:
- (a) with a need to know such information,
- (b) who are parties to appropriate agreements sufficient to comply with this Section 12, and
- (c) who are informed of the nondisclosure obligations imposed by this Section 12. The foregoing obligations will not restrict you from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that: (x) you give us reasonable notice to enable us to contest such order or requirement, (y) you disclose only that portion of the Confidential Information that you are legally compelled to disclose; and (z) that you use your best efforts to ensure that the Confidential Information is afforded confidential treatment.
- 12.3 The restrictions set forth in Section 12.2 will not apply with respect to any Confidential Information that you can prove via documentary evidence:
- (a) was or becomes publicly known through no fault of yours;
- (b) was rightfully known or becomes rightfully known to you without confidential or proprietary restriction from a source other than Instabase who has a right to disclose it;
- (c) is approved by Instabase for disclosure without restriction in a written document which is signed by a duly authorized officer of Instabase; or
- (d) that you independently developed without access to or use of the Confidential Information.
13. General Provisions
- 13.1 These Terms, together with any policies incorporated into these Terms by reference, are the complete and exclusive understanding of the parties with respect to Instabase’s provision of, and your use of and access to, the Site and the Platform, and supersede all previous or contemporaneous agreements or communications, whether written or oral, relating to the subject matter of these Terms (including, without limitation, prior versions of these Terms). Any terms or conditions that you send to Instabase that are inconsistent with or in addition to these Terms are hereby rejected by Instabase, and will be deemed void and of no effect.
- 13.2 These Terms will be governed by and construed in accordance with the laws of the State of California, without regard to that State’s conflict of law principles. Any legal action or proceeding arising under, related to or connected with these Terms will be brought exclusively in the federal (if they have jurisdiction) or state courts located in San Francisco, California, and the parties irrevocably consent to the personal jurisdiction and venue of such court(s). The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to these Terms. If a party initiates any proceeding regarding these Terms, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs.
- 13.3 You agree that Instabase has the right to use your name and logo on the Site or other Instabase websites or marketing materials, for the purposes of identifying you as a Instabase customer and describing your use of the Platform. You also agree that Instabase may (but is under no obligation to):
- (a) issue a press release identifying you as a Instabase customer;
- (b) inform other potential customers that you are a user of the Platform; and
- (c) identify you as a user of the Platform in other forms of publicity (including, without limitation, case studies, blog posts, and the like).
- 13.4 You may not assign these Terms, in whole or in part, by operation of law or otherwise, without the prior written consent of Instabase, and any attempted transfer, assignment or delegation without such consent will be void and of no effect. Instabase may freely transfer, assign or delegate these Terms, or its rights and duties under these Terms, without notice to you. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
- 13.5 Except as expressly set forth in these Terms, the exercise by either party of any of its remedies will be without prejudice to its other remedies under these Terms or otherwise. The failure by a party to enforce any part of these Terms will not constitute a waiver of future enforcement of that or any other provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by an authorized representative of the waiving party.
- 13.6 You agree that any notice that Instabase is required to provide pursuant to these Terms can be given electronically, which may include an email to the email address you provide to Instabase as part of your Registration Data. These notices can be about a wide variety of things, including responding to your questions, requests for additional information, and legal notices. You agree that such electronic notices satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day the email is sent to you, provided that the email is the same as the email address you provided as part of your Registration Data.
- 13.7 You acknowledge that you are responsible for complying with all applicable laws and regulations associated with your access and use of the Site and the Platform, including, without limitation, all applicable export control laws and regulations.
- 13.8 We do not develop any technical data or computer software pursuant to these Terms. The Site and the Platform have been developed solely with private funds, are considered “Commercial Computer Software” and “Commercial Computer Software Documentation” as described in FAR 12.212, FAR 27.405-3, and DFARS 227.7202-3, and access is provided to U.S. Government end users as restricted computer software and limited rights data. Any use, disclosure, modification, distribution, or reproduction of the Site or the Platform by the U.S. Government, its end users or contractors is subject to the restrictions set forth in these Terms.
- 13.9 If any portion of these Terms is held to be unenforceable or invalid, that portion will be enforced to the maximum extent possible, and all other provisions will remain in full force and effect.
- 13.10 We are each independent contractors with respect to the subject matter of these Terms. Nothing contained in these Terms will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually.