Correlate Terms of Use


The following terms and conditions govern all use of Correlate services, products and software (the “Software”). The Software is owned and operated by IB5k, LLC (“IB5k”). The Software is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time IB5k (collectively, the “Terms of Use”).

MODIFICATION OF TERMS OF USE

IB5k reserves the right, at its sole discretion, to modify or replace any of these Terms of Use at any time. IB5k will notify you of changes and we may send an email to registered users to notify them of the change. Your continued use of the Software following the posting of any changes to the Terms of Use constitutes acceptance of those changes.

NEW FEATURES

IB5k may, in the future, offer new services and/or features through the Software (including, the release of new tools and resources). Such new features and/or services shall be subject to these Terms of Use. Your continued use of the Software after the introduction of new features and/or services constitutes your acceptance of the Terms of Use.

PRIVACY

IB5k’s current Privacy Statement is attached hereto as Exhibit A and made a part herof (the “Privacy Policy”).

RULES AND CONDUCT

The Software and any “Content” (as defined below) made available on or through the Software is provided only for (a) your own personal use, (b) your internal business use or (c) if you are a “Managed Software Provider” (as defined below), use in the support of your customers that use the Software for their own personal or internal business use, all in compliance with all applicable laws, rules and regulations. If you desire to make any other commercial use of the Software, including but not limited to customizing, selling or distributing the Software (whether as a stand-alone Software or bundled with your services) for consideration of any kind or for no consideration, you must first obtain IB5k’s specific written approval in advance and/or enter into a written agreement with IB5k. The Software is intended for use described above only and may not be used in connection with any other commercial endeavors except those that are specifically endorsed or approved by IB5k in writing. Except for the use described above by your employees or independent contractors for your internal business use and in compliance with these Terms of Use, you may not distribute or otherwise commercially exploit or make available to any third party the Software, or any part thereof, in any way. “Managed Software Provider” means a Software provider that manages or administers the Correlate account of a third party for the third party’s internal business or personal use only. If you are a Managed Software Provider, you (i) shall not use, administer or manage the Software in violation of these Terms of Use, (ii) acknowledge and agree that the Correlate Software account is for the benefit of the Correlate customer only and upon any termination of your relationship with your customer, the customer will be free to use, manage and administer the Software on its own, and (iii) shall not, and shall not attempt to, block or remove any advertisements contained in or offered through the Software. Any unauthorized use of the Software is expressly prohibited. For purposes of these Terms of Use, “Content” includes, without limitation, any information or data (including, information or data generated or otherwise provided by IB5k or its partners through the Software or related services, or otherwise available that are not “Submissions” (as defined below)), text, software, scripts, graphics, photos, documents and interactive features.

You promise not to use the Software for any purpose that is unlawful or prohibited by these Terms of Use. You agree to abide by all applicable local, state, national and international laws and regulations.

By way of example, and not as a limitation, you agree not to (or permit others to): (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any “Submissions” such as, without limitation, text, communications, software, images, sounds, data or other materials or information using any communications service or other service available on or through the Software, that:

You will not use any robot, spider, scraper or other automated means to access the Software for any purpose without IB5k’s express written permission. Additionally, you will not: (i) interfere or attempt to interfere with the proper working of the Software or any activities conducted on the Software; or (ii) bypass any measures IB5k may use to prevent or restrict access to the Software.

For the avoidance of doubt, you will not use any device, software, or routine to damage, interfere or attempt to interfere with any application, function, or use of the Software. You shall not decompile, disassemble, decrypt, extract, reverse engineer, or otherwise attempt to derive the source code of the Software (including the tools, methods, processes, and infrastructure) enabling or underlying the Software. You shall not attempt to access the Software through any unapproved interface. In addition, you shall not remove any proprietary notices or labels except as expressly provided for by agreement between you and IB5k.

You may not harvest or collect information, including, without limitation, screen names, about other members or users of the Software. The use of any information learned through the Software is limited to the express purposes set forth in these Terms of Use; all other uses, including, without limitation, sending unsolicited bulk e-mail, are strictly prohibited.

IB5k may remove any Content and Submissions at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or Submissions), or for no reason at all.

IB5k may, at its sole discretion, immediately terminate your access to the Software should your conduct fail to conform strictly and terms or conditions of these Terms of Use, including, without limitation, with any provision of this section.

REGISTRATION

As a condition to using the Software, you may be required to register with IB5k by providing information to be specified during the registration process and entering an email address and selecting a password and account name (“Correlate User ID”). You shall provide IB5k with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Use, which may result in immediate termination of your Correlate account. In addition, you agree to maintain and update your registration information to ensure that it is accurate and complete at all times. You may not (i) select or use as a Correlate User ID a name of another person with the intent to impersonate that person; (ii) use as a Correlate User ID a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a Correlate User ID a name that is otherwise offensive, vulgar or obscene. IB5k reserves the right to refuse registration of, or cancel a Correlate User ID in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Correlate password. You may never use another user’s account without such other user’s express permission. You will immediately notify IB5k in writing of any unauthorized use of your account, or other account related security breach of which you are aware.

PAYMENT AND ELECTRONIC COMMUNICATIONS

If you have purchased Software, you are expressly agreeing that IB5k is permitted to bill you the applicable fees, any applicable tax and any other charges you may incur with IB5k in connection with your use of the Software. If payment is not received for any reason in advance of the applicable subscription period, IB5k reserves the right to either suspend or terminate your access to the Software and terminate these Terms of Use. All fees are non-refundable.

By using the Software, you consent to receiving electronic communications from IB5k. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Software. These electronic communications are part of your relationship with IB5k and you receive them as part of your subscription to the Software. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.

THIRD PARTY SITES

The Software may permit you to link to other websites or resources on the Internet. These other websites are not under IB5k’s control, and you acknowledge that IB5k is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by IB5k or any association with its operators. You further acknowledge and agree that IB5k shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource.

Both parties, as applicable, hereby represent and warrant that each party, as applicable, has the necessary rights to access and use third party services and sites through the Software and that each party’s, as applicable, use of such third party services and sites is in compliance with the terms of use applicable to such third party services and sites.  For the avoidance of doubt, provided neither you, nor a third party under your control violates these Terms of Use or is solely responsible for any breach of terms of use applicable to third party services and sites, IB5k represents and warrants that the Software and operation of the Correlate service will not violate any terms of use or access agreements applicable to such third party services and sites.

THE PARTIES HERETO ACKNOWLEDGE THAT THE THIRD PARTIES THAT PROVIDE THE THIRD PARTY SERVICES AND SITES MAY, AT ANY TIME, CHANGE THE MEANS BY WHICH THEY PROVIDE THE THIRD PARTY SERVICES AND SITES, AND CONSEQUENTLY, THE ABILITY TO USE THE THIRD PARTY SERVICES AND SITES TO FACILITATE ACCESS TO THE SERVICES OR SITES MAY BE TEMPORARILY OR PERMANENTLY DISABLED. THE PARTIES HERETO AGREE THAT IB5K SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU WHATSOEVER IN RELATION TO THE THIRD PARTY SERVICES OR SITES, AND THAT IB5K MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE THIRD PARTY SERVICES.

CONTENT AND SUBMISSIONS

(a) IB5k Content Generally.

You agree that the Software contains Content specifically provided by IB5k or its partners and that such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by IB5k in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such Content. However, IB5k hereby grants you a limited, revocable, non-sublicensable license to reproduce and display the Content (excluding any software code) solely for your personal and non-commercial use as expressly authorized under these Terms of Use; provided, that you maintain all copyright and other proprietary notices contained therein. Reproducing, copying or distributing any Content, materials or design elements contained in the Software for any other purpose is strictly prohibited without the express prior written permission of IB5k.

Use of the Content for any purpose not expressly permitted in these Terms of Use is prohibited. Any rights not expressly granted herein are reserved.

(b) Submissions Posted by User(s).

You agree not to provide IB5k with any information that you desire or are required to keep secret.

If you are enabled to post Submissions as contemplated by this subsection (b), you are solely responsible for the Submissions you post through the Software. IB5k does not endorse and has no control over the Submissions posted or otherwise provided by users. IB5k reserves the right to, immediately and without notice, delete or otherwise remove any user Submissions that, in IB5k’s sole discretion, it determines violates these Terms of Use or which may be offensive, illegal or violate the rights, harm, or threaten the safety of any person.

WARRANTIES

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN (INCLUDING THOSE PROVISION WITH RESPECT TO THIRD PARTY SITES AND SERVICES), TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IB5K’S LIMITATIONS ON WARRANTIES ARE AS FOLLOWS:

THE SOFTWARE AND ALL CONTENT, SUBMISSIONS AND PRODUCTS INCLUDED IN OR AVAILABLE THROUGH THE SOFTWARE, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THE SOFTWARE AND CONTENT, SUBMISSIONS AND PRODUCTS ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IB5K, AND ITS AGENTS, PARTNERS, SUPPLIERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) ANY CONTENT OR SUBMISSIONS, INCLUDING, WITHOUT LIMITATION, ANY RESULTS, DATA, OR INFORMATION OBTAINED THROUGH THE SOFTWARE WILL BE ACCURATE, RELIABLE, OR COMPLETE; (B) THE SOFTWARE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (C) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE CONTENT OR SUBMISSIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) THE RESULTS OF USING THE SOFTWARE, OR OBTAINING PRODUCTS THROUGH THE SOFTWARE, WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SOFTWARE IS SOLELY AT YOUR OWN RISK. NEITHER IB5K NOR ITS AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS MAKES ANY WARRANTIES OF ANY KIND IN REGARD TO ANY CONTENT, SUBMISSIONS, OPINIONS, ADVICE AND ALL OTHER INFORMATION EXPRESSED OR POSTED BY USERS OF THIS SITE.

LIMITATION OF LIABILITY

IN NO EVENT SHALL IB5K, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SOFTWARE OR ANY CONTENT OR PRODUCTS ACCESSIBLE THROUGH THE SOFTWARE (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) FOR ANY ERRORS, OMISSIONS, OR INACCURACIES IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR SUBMISSIONS POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE AT OR THROUGH THE SOFTWARE. IN NO EVENT SHALL IB5k’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OF USE, THE SOFTWARE EXCEED THE AMOUNT OF CONSIDERATION PAID HEREUNDER. YOU SPECIFICALLY ACKNOWLEDGE THAT IB5K SHALL NOT BE LIABLE FOR ANY SUBMISSIONS OR USER CONDUCT.

INDEMNIFICATION

You agree to indemnify and hold harmless IB5k, its affiliates and their employees, contractors, officers, directors and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from your (i) use or misuse of the Software; (ii) your Submissions, violation of the Terms of Use by you; or, (iii) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. IB5k reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with IB5k in asserting any available defenses.

IB5k agrees to indemnify you and hold harmless you, your affiliates and your employees, contractors, officers, directors and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from IB5k’s breach of any of its representations and/or warranties in these Terms of Use.

CHOICE OF LAW

A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

These Terms of Use shall be governed by and construed in accordance with the laws of the State of New York.

MISCELLANEOUS

These Terms of Use and the Software contemplated hereunder are personal to you, and are not assignable, transferable or sub-licensable by you except with IB5k’s prior written consent. IB5k may assign, transfer or delegate any of its rights and obligations hereunder without consent. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Use and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under these Terms of Use, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms of Use will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery Software.



EXHIBIT A


PRIVACY AND DATA SECURITY TERMS AND CONDITIONS


DEFINITIONS

“User” means you.

GENERAL REQUIREMENTS

In addition to and not in lieu of the confidentiality obligations set forth in the Agreement, this Exhibit shall apply to Personal Information.

REPRESENTATIONS AND WARRANTY OF COMPLIANCE

IB5k represents and warrants that in connection with its Use of Personal Information, IB5k will at all times comply with (i) all applicable laws, rules, and/or regulations applicable to the privacy and security of Personal Information; and (ii) all User or User customer policies applicable to the privacy of Personal Information (together, the “Privacy and Data Security Requirements”).

IB5k agrees, without further consideration and at IB5k’s expense, to take such actions necessary to protect Personal Information and to execute and deliver such documents as may be necessary to comply with all Privacy and Data Security Requirements.

PRIVACY REQUIREMENTS

Without limiting the generality of anything contained herein, IB5k agrees that:

SAFEGUARDING USER PERSONAL INFORMATION

IB5k represents and warrants that it shall maintain a comprehensive written information security program and computer system security requirements sufficient to comply with the all applicable state and federal laws (“IB5k Security Policies and Procedures”). IB5k shall review the IB5k Security Policies and Procedures on a regular basis and update them as necessary to comply with legal and regulatory changes and the risk facing IB5k and the Personal Information in its possession. IB5k shall provide User with such details and information regarding the IB5k Security Policies and Procedures, as User may reasonably request from time to time.

To the extent that IB5k’s advisors, affiliates, agents or contractors have access to the Personal Information, IB5k shall maintain written agreements with such entities that are consistent with the requirements of the Agreement and that require such entities to (i) protect the security of the Personal Information in a manner that complies with all applicable law and (ii) comply with all terms and conditions of the Agreement related to Personal Information.

IB5k will ensure that no Personal Information is disclosed to or accessed by any third parties except as expressly permitted by the Agreement or expressly authorized by User in writing. IB5k will not, and will ensure that none of its personnel, affiliates, agents or contractors break, bypass, or circumvent, or attempt to break, bypass or circumvent, any security system of User, User’s affiliates, User customer, User customer’s affiliates and/or service providers, or obtain, or attempt to obtain, access to any Personal Information, except as expressly authorized by the Agreement.

COMPUTER SYSTEM SECURITY REQUIREMENTS

IB5k shall implement and maintain computer system security requirements to protect all Personal Information.

SECURITY INCIDENT RESPONSE

IB5k will notify User immediately either in writing or via telephone, of any actual, suspected or threatened Security Incident involving Personal Information. The notification provided to User shall include, if known, and to IB5k’s knowledge as of the time of notice: (i) the general circumstances and extent of any unauthorized access to Personal Information or intrusion into the computer systems or facilities on or in which Personal Information is maintained; (ii) which categories of Personal Information where involved; (iii) the identities of all individuals whose Personal Information was affected; and (iv) steps taken to secure the data and preserve information for any necessary investigation. The notification required to be delivered to User under this Section shall be delivered promptly and in no event later than twenty-four (24) hours after IB5k learns of any such actual, suspected or threatened Security Incident. IB5k shall not delay its notification to User for any reason, including, without limitation, investigation purposes. IB5k shall cooperate fully with User in investigating and responding to each successful or attempted security breach including allowing immediate access to IB5k’s facility by User or User’s investigator, to investigate, and obtain copies of data as provided herein.

CONTROL, RETURN AND DESTRUCTION OF PERSONAL INFORMATION

As between User and IB5k, all Personal Information is and shall remain the exclusive property of User. Upon User’s request and at User’s expense and direction, IB5k shall promptly, within three (3) days of User’s request, provide copies of all Personal Information (or such portions as may be specified by User), in IB5k’s possession or under its control, in an industry standard format, including logs, where such logs can reasonably be redacted to prevent disclosure of information of other IB5k customers, or other electronically stored information concerning Personal Information or access thereto, and using such media as User may request. At any time during the term of the Agreement, User may request, in writing, that IB5k destroy or erase all copies of the Personal Information in IB5k’s possession or under its control and IB5k shall comply with all such requests. Under no circumstances shall IB5k withhold any Personal Information. Notwithstanding any other provision in this Agreement, IB5k shall not possess or assert any lien against or to Personal Information.