ITOPIA SAAS TERMS OF SERVICE
itopia Terms of Service
itopia, Inc. (“Company,” “we,” “us,” “our”) provides its Services (described below) to you through its websites located at https://www.itopia.com, http://portal.cieloadmin.com and/or http://cas.itopia.com (collectively, the “Website”) and providing your data to itopia, you, individually and on behalf of your employer (collectively, “you” or “Customer”) agree to be bound by these Terms of Service (this “Agreement”). The Services are defined as your access to the Website and the information you receive from itopia through the Website (the “Services”).
This Agreement sets out the legally binding terms for your use of the Services and may be modified by itopia from time to time in its sole discretion. We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time without prior notice. You may read a current, effective copy of these Terms of Service at any time by selecting the “Terms of Service” link on the Site. Please review these Terms of Service periodically. Any use of the Services after such date shall constitute your acceptance of such revised Terms of Service. If any change to these Terms of Service is not acceptable to you, your sole remedy is to cease accessing, browsing and otherwise using the Services.
The Services are solely for access and use by Authorized Users (as defined below). By using the Services, you represent and warrant that you (a) have the right, authority, and capacity to enter into this Agreement and (b) will abide by all of the terms and conditions of this Agreement. If you have agreed to become a paying customer for the Services, then your eligibility to use the Services shall be contingent on your continued compliance with the terms of the applicable purchase agreement and this Agreement. If you have not agreed to become a paying customer for the Services, your use of the Website is still subject to this Agreement.
itopia shall authorize individual employees of Customer as designated by Customer from time to time (each an “Authorized User”), who will have access to the Services. You will also be asked to choose a username and a password for each Authorized User. itopia may change any username and password for any Authorized User at any time, with notice to Customer following any such change. Each Authorized User must use his or her own username and password and shall not disclose them to anyone else. Customer shall immediately notify itopia of any unauthorized disclosure. Customer is responsible for (a) each Authorized User’s compliance with this Agreement and (b) any employee of Customer, any person to whom Customer has given access to the Services and any person who gains access to Customer’s Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
This Agreement will remain in full force and effect while itopia offers the Services and/or you are a Customer using the Services pursuant to the term selected during the Services Registration Process. After this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and any other Section that by its nature survives termination.
Availability of and Access to Services.
itopia will attempt to provide continuous availability and access to Services. In the event that we are unable to provide access for reasons beyond our control, we will communicate the reasons for the outage and expected duration of the outage clearly and explicitly to the Customer. These outages could be due to third parties that the Service depends on, such as, but not limited to Google Cloud, Amazon Web Services, Microsoft Azure or other third party service providers. Also while we will make commercially reasonable attempts to backup all Customer data, in the event of recovery from disaster, the Customer may have to reconfigure the Service to get it back to the state it was in before the outage. itopia is hosted by a third party hosting service provider. itopia and its third party service providers have implemented and maintain commercially reasonable technical and organizational security measures designed to meet the following objectives: (a) ensure the security and confidentiality of Customer data in itopia’ and/or its third party service providers’ custody and control; (b) protect against anticipated threats or hazards to the security or integrity of Customer data; (c) protect against unauthorized access to or use of Customer data; (d) encrypt Customer’s Content and data during transmission by itopia and its third party service providers and when being uploaded by Customer for use in connection with the Services using an https connection; and (e) ensure that itopia’ return or disposal of Customer data is performed in a manner consistent with the foregoing. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures to access your data for improper purposes. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, confidential information and property.
Proprietary Rights in Content of itopia.
The Services contain the copyrighted material, trademarks, patents, trade secrets, and other proprietary information (“Intellectual Property”) of itopia and its suppliers and licensors. itopia and its suppliers and licensors own and retain all proprietary rights in the Services, including any improvements, modifications, or derivative works to any of the foregoing. Except for Intellectual Property which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or otherwise use any such Intellectual Property and the provision of such Intellectual Property to you through the Services does not transfer to you or any third party any rights, title or interest in or to such Intellectual Property, including, without limitation, any intellectual property rights in any content and material included therein. You may not: distribute, sub-license, translate, reverse-engineer, decompile, or disassemble the Services or Intellectual Property or the source code thereof, or attempt to derive the source code thereof in any other way, save and only to the extent any foregoing restriction is prohibited by applicable law; modify the Services or Intellectual Property or merge all, or any part, of the Services or Intellectual Property or the source code thereof into another program; or remove, modify or alter any itopia’ Intellectual Property from any part of the Services or Intellectual Property or the source code thereof. Subject to any applicable limitations in itopia’s vendor agreements, itopia grants you a non-exclusive, non-transferable (except in connection with a permitted assignment of the Agreement), non-sublicenseable right to access and use the Services ordered by you in accordance with the Agreement.
Third Party Websites
The Services may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Company has no control over such sites and resources and Company is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Company will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or Services available on or through any such site or resource. Any dealings you have with third parties found while using the Services are between you and the third party, and you agree that Company is not liable for any loss or claim that you may have against any such third party.
Customer Information Provided to itopia.
Customer will retain all Intellectual Property rights in Customer Intellectual Property that may be provided by Customer to itopia (“Customer Property”) under this Agreement. itopia will not publicly disclose any Customer-specific information but may disclose aggregated and de-identified customer information related to the Services for promotional purposes, such as project summary and high-level outcomes of the Services. You understand and agree that itopia may copy, use and modify any information that you provide to itopia, including all suggestions supplied by you that relate to the Services (collectively, “Content”) for the sole purposes of providing the Services to you and to improve the quality of itopia products and services. Furthermore, you hereby agree that itopia shall have an unlimited, royalty-free, worldwide and perpetual license to use, copy, distribute, practice and make derivatives works of, under any intellectual property rights you may have, including but not limited to copyrights, trademarks, trade secrets and patents, all suggestions supplied by you to itopia. By providing Content to itopia, you represent and warrant that you have the right to provide such Content to itopia and such Content does not infringe, misappropriate, violate or contravene any laws, regulations or third party rights (including, without limitation, any rights in Intellectual Property).
itopia and its suppliers use reasonable efforts to protect the confidentiality of Content you provide. itopia cannot guarantee that unauthorized third parties will never be able to defeat those measures to access content for improper purposes. Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of Customer’s privacy, confidential information and property. Customer also acknowledges that Customer is under no obligation to provide Customer’s confidential information in order to use the Service.
Use of Services
You must use the Services in a manner consistent with any and all applicable laws and regulations. Itopia and its suppliers use reasonable efforts to protect the confidentiality of Content you provide. Itopia cannot guarantee that unauthorized third parties will never be able to defeat those measures to access content for improper purposes. Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of Customer’s privacy, confidential information and property. Customer also acknowledges that Customer is under no obligation to provide Customer’s confidential information in order to use the Service.
The itopia Acceptable Use Policy (https://www.itopia.com/legal) (the “AUP”), as amended from time to time, is hereby incorporated by reference into this Agreement. You must use the Services in such manner that does not violate the AUP. A copy of the Acceptable Use Policy is available on itopia’s website by clicking this link: Acceptable Use Policy.
You shall pay all Service fees specified during the service registration process in advance of their use. itopia may increase the Service fees owed under the Agreement in response to changing market conditions. You shall pay all Service fees owed to itopia as they become due following any such adjustment.
You authorize itopia to charge those fees via the payment method that you provided to itopia during the service registration process. We may bill you for the Services in advance (i) at the time of purchase; and (ii) on a recurring basis for subscription-type Services. We may bill you at the same time for more than one of your prior billing periods for amounts that have not previously been processed or for services agreed to during the services subscription process. If you believe that a billing error has been made in connection with any of the Services, you must provide us with written notice of such error within 60 days after the date of the charge. If itopia confirms that an error has occurred, it will correct that error within 90 days. Unless otherwise provided by law, all charges are non-refundable. You also shall pay all costs and reasonable attorneys’ fees incurred by itopia in the collection of any delinquent sums.
Suspension of Service
If you fail to pay all amounts owed to itopia under the Agreement when due, then in addition to any other remedies available at law or in equity, itopia may immediately downgrade, suspend or terminate Services under the Agreement until full payment is made. Following any suspension of service under this provision, and after you make full payment to itopia, itopia shall restore the Services. itopia’s right to suspend Services under this section is in addition to itopia’s right to terminate the Agreement for non-payment.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
COMPANY MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
Limitation of Liability.
ITOPIA SHALL HAVE NO LIABILITY TO CUSTOMER UNDER THIS AGREEMENT, IT BEING ACKNOWLEDGED AND AGREED THAT ITOPIA’S PROVISION OF THE SERVICES IS PROVIDED SOLELY FOR THE CONVENIENCE OF CUSTOMER. IF THE FOREGOING LIMITATION OF LIABILITY IS FOUND TO BE UNENFORCEABLE, ITOPIA’S LIABILITY TO CUSTOMER FOR ANY CAUSE OF ACTION ARISING FROM ITS USE OF THE SERVICES OR UNDER THIS AGREEMENT, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (1) ANY AMOUNT PAID BY CUSTOMER TO ITOPIA FOR THE SERVICES DURING THE ONE (1) MONTH PRECEDING SUCH CAUSE OF ACTION; AND (2) FIFTY U.S. DOLLARS (US$50). EXCEPT FOR BREACH OF THE RESTRICTIONS IN SECTION 5 AND IN RELATION TO THE INDEMNITY IN SECTION 13, CUSTOMER’S LIABILITY TO ITOPIA FOR BREACH OF THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID OR AGREED TO BE PAID BY CUSTOMER TO ITOPIA FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING SUCH CAUSE OF ACTION. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THIS AGREEMENT SHALL NOT LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS AGENTS OR EMPLOYEES, OR FOR DEATH OR PERSONAL INJURY. THE PARTIES AGREE THAT THE LIMITATIONS ON AND EXCLUSIONS OF LIABILITY IN THIS AGREEMENT WERE FREELY NEGOTIATED AND ARE AN INTEGRAL PART OF THE BARGAIN, IN THAT THE SERVICES WOULD NOT HAVE BEEN AVAILABLE FOR THE SAME PRICE AND UNDER THE SAME TERMS AND CONDITIONS HAD SUCH LIMITATIONS ON AND EXCLUSIONS OF LIABILITY NOT BEEN INCLUDED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
S. Export Controls.
Any software provided by itopia through the Services (the “Software”) and the Services themselves are subject to United States export controls. Neither the Services nor any Software downloaded from the Services may be exported or re-exported (i) into the territory of (or to a national or resident of) Cuba, North Korea, Iran, Syria, Sudan, or any other Country to which the U.S. has embargoed goods or services; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By accessing the Services or downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
This Agreement shall be governed by the laws of the State of Florida without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. You and itopia agree to submit to the exclusive personal jurisdiction of, and agree that venue is proper in, the state and federal courts located in Florida in such legal action or proceeding. Notwithstanding the foregoing, itopia may seek injunctive or other equitable relief to protect its Intellectual Property rights in any court of competent jurisdiction.
The communications between you and itopia use electronic means, whether you visit the Website or send us emails, or whether itopia posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from itopia in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that itopia provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waiveable rights.
You agree to indemnify and hold itopia, its subsidiaries, affiliates, officers, agents, licensors, and other partners and employees, harmless from, any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Services, any Customer Data, your connection to the Services or your violation of these Terms of Service. itopia will defend or settle, at its expense, any action brought against Customer based upon the claim that the Services, when used in accordance with the Agreement, directly infringe an issued U.S. patent or registered copyright; provided, however, that: (i) Customer notifies itopia promptly in writing of any such claim; (ii) Customer does not enter into any settlement related to any claim without itopia’ prior written consent; (iii) itopia has sole control of any claim and all related settlement negotiations; and (iv) as requested, Customer provides itopia with all information and assistance necessary to settle or defend the claim. If the Services become, or may, in the opinion of itopia, become the subject of a claim of infringement of any third party intellectual property right, itopia may, at its option, and as Customer’s exclusive remedy: (i) procure the right for Customer to use the Services; (ii) replace or modify the Services to make them non-infringing; or (iii) refund any fees paid in advance by Customer for the Services.
Controlling Statement of Obligations. The terms of this Confidentiality provision supersede any non-disclosure or confidentiality Terms of Service entered into by the parties prior to the commencement of the initial term.
Confidential Information. “Confidential Information” means all information provided by a disclosing party to a receiving party that a reasonable industry participant would deem to be confidential, including: (i) all information that is marked confidential; (ii) the terms of this Terms of Service and each Services Subscription Order; and (iii) features and functionality of the Services; and (iv) Customer Data. Confidential Information does not include information that is independently developed, that becomes public knowledge, or that is received from a third party without breach of any obligation owed to the disclosing party.
Use and Disclosure Restrictions. A receiving party will use commercially reasonable efforts to protect Confidential Information it receives and will use Confidential Information only as necessary to perform its obligations and exercise its rights under this Terms of Service and each Services Subscription Order. A receiving party will not disclose Confidential Information to third parties other than as permitted under this Terms of Service or as compelled by a court or regulator of competent authority (and then while taking all reasonable steps to inform the disclosing party prior to disclosure and to limit the scope of the disclosure).
This Agreement contains the entire agreement between you and itopia regarding the use of the Services and supersedes and replaces all prior or contemporaneous understandings, representations, communications, or agreements, written or oral, including any additional or contrary terms contained in any Customer purchase order or other procurement document whether presented contemporaneously or after Customer has entered into this Agreement and notwithstanding any signature by itopia of such purchase order or procurement document; and any such additional or contrary terms contained in such Customer purchase order or other procurement document shall be void as they may pertain to the subject matter of this Agreement. This Agreement may be updated or amended by itopia at any time, with or without notice to Customer and Customer’s continued use of the Services shall constitute Customer’s acceptance of the updated or amended Agreement. Customer may not assign all or any part of its rights or obligations hereunder without the consent of itopia. Notwithstanding any other provisions herein, no party will be deemed as a third-party beneficiary to this Agreement. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect. The failure of itopia to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Nonperformance by either party shall be excused to the extent that performance is rendered impossible by strike, acts of God, natural disaster, Internet outages, computer viruses, governmental acts or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party. The section titles in this Agreement are for convenience only and have no legal or contractual effect. You are responsible for all taxes, other than taxes levied on itopia’ income. Services fees do not include any applicable taxes. If itopia is required to pay any sales, use, goods & services, value added, or other taxes in relation to your purchase, those taxes will be billed to and paid by you.
All Intellectual Property owned by itopia shall remain the exclusive property of itopia. Customer agrees that itopia will retain sole ownership of all Intellectual Property even if enhancements suggested or requested by Customer become incorporated into the Services. You are not permitted to use itopia’ Intellectual Property without our prior written consent or as expressly provided in this Agreement.
You grant itopia the right to identify you as a user in Services promotional material. At any point in time you can submit a written request via email to firstname.lastname@example.org to have itopia remove your name, within thirty days of your request, from promotional material.