This INFIMA End User License Agreement (“Agreement”) is entered into by and between GC Data Laboratories, LLC d/b/a INFIMA (“INFIMA”, “we”, “us” or “our”) and you, the person accepting this Agreement and registering for use of INFIMA’s web-based interface (the “Site”) and proprietary software product (together, the “Product”), or the organization or entity that has authorized you to accept this Agreement and register for access to the Product for its benefit (in either case “you”, “your” or “Client”), and governs your access to and use of the Product, made available by us, and as may be downloaded and used by you.
BY ACCEPTING THIS AGREEMENT, OR REGISTERING FOR, DOWNLOADING, ACCESSING OR USING THE PRODUCT, YOU CONFIRM THAT (1) YOU HAVE READ THIS AGREEMENT, (2) YOU AND ANY ORGANIZATION OR ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT AND/OR USING THE PRODUCT, ACCEPT THIS AGREEMENT, AND (3) IF YOU ARE AN INDIVIDUAL, THAT YOU ARE AN EMPLOYEE OR AGENT OF THE ORGANIZATION OR ENTITY ON WHOSE BEHALF YOU ARE ACTING, AND HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ORGANIZATION OR ENTITY.
IF YOU DO NOT AGREE TO THE PROVISIONS OF THIS AGREEMENT, THEN (I) WE ARE UNWILLING TO GRANT YOU RIGHTS TO THE PRODUCT, (II) YOU MUST DISCONTINUE USE OF THE SITE; AND (III) YOU MAY NOT DOWNLOAD OR USE THE PRODUCT.
Please print this Agreement for your records.
Except for the limited rights granted in this Agreement, INFIMA retains all right, title and interest in the Product, all copies thereof, and all proprietary rights in the Product, including copyrights, patents, trademarks and trade secret rights. This Agreement grants you the following rights, as applicable:
The services will commence on the date you first use the Site or accept this Agreement, whichever is earlier (the “Effective Date”), and shall remain in effect until terminated by either party to the Agreement. You may terminate this Agreement at any time by notifying INFIMA in writing. Your service will terminate at the end of the month of termination. In the event of termination, you will still be liable for payment of the current month’s services, as well as any past due services, and all outstanding amounts owed by you will become immediately due and payable.
The license granted to you in this Agreement is restricted as follows:
THE PRODUCT PROVIDED OR MADE AVAILABLE BY INFIMA TO YOU HEREUNDER IS PROVIDED “AS AVAILABLE,” “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER, AND INFIMA EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INFIMA DOES NOT WARRANT THAT THE ITEMS WILL BE ERROR-FREE, COMPLETELY SECURE, OR BE PROVIDED (OR BE AVAILABLE) WITHOUT INTERRUPTION. INFIMA MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING ACCURACY OF INFORMATIONAL CONTENT OR SYSTEM INTEGRATION, OR THE APPROPRIATNESS OF THE PRODUCT FOR ANY PARTICULAR SYSTEM.
THE PRODUCT IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THE PRODUCT IS NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE- SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU, BUT THIS SECTION SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL INFIMA OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT DAMAGES, OR ANY OTHER DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, EVEN IF INFIMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE). IN ANY CASE, THE ENTIRE LIABILITY OF INFIMA AND ITS AFFILIATES UNDER THIS AGREEMENT FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY YOU FOR THE PRODUCT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CAUSE OF ACTION OR CLAIM.
ADDITIONALLY, YOU ACKNOWLEDGE AND AGREE THAT INFIMA SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSSES OF USER OF ANY KIND RELATING TO OR IN CONNECTION WITH CLAIMS THAT THERE HAVE BEEN ERRORS, OMISSIONS OF PROFESSIONAL NATURE, REGARDLESS OF WHETHER SUCH ERROR, OMISSION OR OCCURRED WITH THE USE OR AID OF THE PRODUCT.
Some states do not allow the exclusion of incidental or consequential damages, or the limitation on how long an implied warranty lasts, so some of the above may not apply to you.
You agree to indemnify, defend and hold harmless INFIMA and its parent and their respective officers, directors, shareholders, agents, affiliates, and licensors from and against any and all third party claims of any kind (along with attorneys’ fees and litigation costs) arising out of, resulting from, or in connection with your breach of this Agreement or your use or misuse of the Product, including any combination of the Product with any hardware, software, or other intellectual property not provided by INFIMA.
INFIMA will try work in good faith to resolve any issue you have with INFIMA, if you bring your issue to the attention of INFIMA. However, we realize that there may be rare cases where INFIMA may not be able to resolve an issue to your satisfaction. You and INFIMA agree that any dispute, claim or controversy arising out of or relating in any way to this Agreement shall be determined by binding arbitration instead of in a court of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to this Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and INFIMA are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive any termination of this Agreement and any other contractual relationship between you and INFIMA. The arbitration will be governed by the Commercial Arbitration Rules (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and forms are available at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms, including this arbitration agreement. Unless INFIMA and you agree otherwise in writing, any arbitration hearings will take place in the State of Florida.
Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND INFIMA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and INFIMA agree otherwise in writing, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
If this specific provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of this Agreement shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts in the State of Florida. This Agreement is governed by and construed in accordance with the laws of the State of Florida, as applied to agreements entered into and wholly performed within Florida between Florida residents. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods.
The Product is commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense (“DOD”) or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software Documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software Documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.
By downloading, installing, accessing, or using the Product, you indicate that you have the authority to bind yourself or your organization, as applicable, to the terms of this Agreement.