The Terms and Conditions set forth below shall apply to all Services and Deliverables (both defined below) provided by TechInsights or any of its affiliates (collectively, “TechInsights”) to you (“Customer”), including your use of or access to any TechInsights website or other remote access information portal (the “Website”). These Terms and Conditions may include any Proposal, Letter of Authorization, Addendum hereto or any other written agreement agreed upon in writing between the parties as being applicable (each a “Written Agreement” and collectively with these Terms and Conditions, the “Agreement”). If any of these Terms and Conditions conflict with any Written Agreement, or other TechInsights-issued document, these Terms and Conditions shall govern unless explicitly stated and agreed upon otherwise in writing. TechInsights is the operating name of, and its use herein shall be deemed to mean, TechInsights Inc., a corporation organized and existing under the laws of the Province of Ontario, having its principal place of business at 3000 Solandt Road, Kanata, Ontario, Canada, K2K 2X2. In consideration of the covenants and agreements set forth herein, the sufficiency and receipt of which are hereby acknowledged, the parties agree to the terms and conditions set out in this Agreement, as evidenced by your continued use of the Website or, if applicable, any Written Agreement.
0 – SCOPE OF AGREEMENT: TechInsights may automatically amend these Terms and Conditions at any time by (a) posting revised Terms and Conditions on the Website, and/or (b) sending information regarding the amendment to the email address you provide to TechInsights. You are responsible for regularly reviewing the Website to obtain timely notice of such amendments. You shall be deemed to have accepted such amendments by continuing to use the Website after such amendments have been posted or information regarding such amendments has been sent to you. Otherwise, the agreement may not be amended except in writing signed by both you and TechInsights. The most current version of the Terms and Conditions can be reviewed by clicking on the "Terms and Conditions" hypertext link located at the bottom of pages on the Website. You may also have a signed Written Agreement which is expressly incorporated herein, and which in conjunction with these Terms and Conditions, comprise the entire Agreement between TechInsights and you. The Written Agreement may contain different or additional terms, which, if expressly stated and agreed to by the parties in writing, may supersede and refer to different versions of these Terms and Conditions.
2 – NOT LEGAL ADVICE: Nothing in the Website or in any Service or Deliverable constitutes legal advice and nothing therein should be relied upon as such. TechInsights encourages you to seek independent legal advice in respect of any results or conclusions provided in a Deliverable and any impact therefrom on your legal rights and interests in your or any other jurisdiction.
3 – SERVICES AND DELIVERABLES: “Services” shall include any service performed by TechInsights on behalf of Customer, including without limitation reverse engineering, technical analysis, technical patent analysis, teardown, technical or IP consultation, or access thereto or to a Deliverable, including by or through the use of the Websites, or any other services described in an applicable Written Agreement. “Deliverables” shall include any report, document, data, images, pictures, written or graphical material, or any other thing that is described as a Deliverable in an applicable Written Agreement, which is provided to Customer pursuant to the Agreement.
4 – TERMS OF PAYMENT: Customer shall pay in full the amount of a TechInsights’ invoice within thirty (30) days from the date of the invoice. Overdue payments are subject to an interest charge at the rate of one and one-half percent (1.5%) per month or portion thereof. Any sales or similar taxes that TechInsights shall be required to collect for any government with respect to the Services or Deliverables shall be billed to Customer as a separate line item and paid by Customer. TechInsights may at its sole discretion require full payment prior to beginning any work.
5 – PROPRIETARY RIGHTS AND CONFIDENTIALITY: All Services and Deliverables contain information proprietary to TechInsights and are provided hereunder to Customer solely for its use as limited by this Section 5. In addition, TechInsights owns all intellectual property rights, including without limitation copyright and trade-mark rights, in all materials on or comprising the Website (“Content”), including, without limitation, all written, audio visual or other materials and graphical elements on the Website, but excluding User Content (defined below in Section 7). Deliverables and derivatives thereof are to be considered the property of TechInsights and are protected by Copyright and other intellectual property rights. TechInsights reserves all rights and title in and to the Deliverables and derivatives thereof. Except as permitted below in this Section 5 and, if applicable, Section 6, all of the following are prohibited without prior written permission of TechInsights: (a) duplication of all or portions of a Deliverable or derivatives thereof; (b) communication, publication or distribution to any third party of all or portions of a Deliverable or derivatives thereof; and (c) preparing derivatives of a Deliverable. Notwithstanding the foregoing, and provided that TechInsights is acknowledged as the source of information and at no time is the Deliverable or derivatives thereof distributed to any third party nor used in or in support of intellectual property licensing negotiations or legal proceedings related to intellectual property which involve third parties, Customer is permitted to distribute copies of Deliverables to Customer’s employees or other persons for whom TechInsights has provided prior written consent. No other license of any right, including without limitation patent rights, copyright, mask work right, is granted to or by Customer under this Agreement by implication or otherwise. All names, product names, and service names mentioned are used for identification purposes only and may be registered trademarks, trademarks, or service marks of their respective owners.
6 – PERMITTED ACTS FOR CERTAIN DELIVERABLES: Except for Services and/or Deliverables and/or Content obtained via an Access Preview (defined below), TechInsights hereby grants Customer a non-exclusive, non-transferable limited license to access and use, where such access and use is limited in accordance with this Section 6, Services and/or Deliverables for one or more Designated Users, the number of which may be limited by a Written Agreement (please check any applicable Written Agreement). A “Designated User” is one of (a) Customer’s employee, (b) Customer’s consultant who has executed a confidentiality agreement in respect of the Deliverable, (c) any other person for whom TechInsights has provided prior written consent, or (d) a third party with whom Customer is engaged in intellectual property licensing negotiations or legal proceedings related to intellectual property. Subject at all times to Section 5 above, applicable Deliverables received through this limited license may be copied or summarized and re-distributed to Designated Users in respect of a single licensing/assertion campaign provided that Customer (i) provides a notice to such Designated User that Copyright and other intellectual property rights apply to the Deliverable or portion thereof and that all rights have been reserved by their respective owners and (ii) maintains any notices of copyright on such Deliverable or portion thereof. For the purposes of this Section 6, the license hereunder will deemed to apply to a single licensing/assertion campaign if its use is limited to discussions, negotiations, and litigation concerning the assertion of the same patent or group of patents in respect of the same act or acts against the same third-party or group of third parties. An “Access Preview” is defined as any access to Deliverables or Content provided to Customer solely for preview purposes in contemplation of purchase of available reports, and includes but is not limited to access via the Library Search tool.
7 - USER CONTENT: You may be able to post or upload (in designated areas of the Website) written content or other content (collectively "User Content") to the Website. You are solely responsible for your own User Content and the consequences of posting or uploading it. By posting User Content to the Website for the purposes of sharing the User Content with users or visitors of the Website, you automatically grant TechInsights a worldwide, non-exclusive, royalty free, license to use, reproduce, modify, translate into different languages or formats, and publish such User Content on the Website for the purpose of sharing with users and visitors of the Website and to promote the Website, and you waive all moral rights, or similar rights, in respect of such use. You represent and warrant that you own or have the rights to use and, if applicable, license TechInsights to use the User Content in the manner contemplated by the Website and/or this Agreement. You agree to indemnify and hold TechInsights and its agents, business associates, resellers, licensors, and suppliers (collectively, Suppliers) harmless from any and all direct, indirect or consequential claims, losses, damages, judgments, expenses and costs (including, but not limited to, any attorney's fees and expenses) arising out of the posting or uploading of your User Content, your violation of these Terms and Conditions, or the infringement of any trademark or copyright by you. TechInsights, in its sole discretion, may determine whether your User Content is prohibited and its determination shall be final, binding and conclusive for all purposes under this Agreement. TechInsights (a) may terminate your use of the Website and/or remove User Content at any time without cause or notice. Any information stored on the TechInsights servers that is deemed to be unlawful or in contravention of this Agreement or legal and regulatory requirements may be deleted at any time by TechInsights without notice. TechInsights reserves the right to remove any User Content without notice to you. TechInsights further reserves the right to take any other action with respect to User Content that TechInsights deems necessary or appropriate, in its sole discretion, if TechInsights believes you or your information may create liability for TechInsights or others, compromise or disrupt the Services for you or other customers. TechInsights does not:
8 - RESTRICTIONS ON USE OF THE WEB SITE: In addition to other restrictions set forth in these Terms and Conditions, you agree that:(a) You shall not disguise the origin of User Content.(b) You will not place false, misleading, defamatory or harmful information on the Website, or any information which may impact TechInsights’ reputation or ability to secure business opportunities with other customers.(c) You will not use any service, information, application or software to access the Website in a manner not expressly permitted by TechInsights.(d) You will not input or upload to the Website any information which contains viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, interfere with, intercept, provide unauthorized access to, or expropriate the Website, or Content or User Content thereon, or that infringes the intellectual property rights of TechInsights or any third party.(e) Certain areas of the Website are restricted to customers of TechInsights.(f) You may not use or access the Website in any way that, in TechInsights' judgment, adversely affects the performance or function of the Website or interferes with the ability of authorized parties to access the Website. You may not reverse engineer, decompile, decode, or do any other similar activity to or on the Website.(g) You may not frame or utilize framing techniques to enclose any portion or aspect of the Content without the express written consent of TechInsights.
9 - OWNERSHIP OF PARTS: Parts that are purchased by TechInsights or supplied to TechInsights by Customer and subsequently used for quotation and/or analysis are subjected to de-processing and de-construction using TechInsights proprietary processes, and thus become the property of TechInsights. Due to the destructive nature of our investigations and the potential requirement for additional devices during the analysis, both used and unused devices cannot be forwarded or returned to the customer unless prior special arrangements have been made at time of quotation.
10 – LEGAL PROCEEDINGS AND OTHER DISPUTE RESOLUTIONS: In the event that TechInsights or Customer is required to produce Deliverables or have representatives of TechInsights appear in respect of legal proceedings or litigation settlement negotiations involving Customer, Customer shall, at Customer’s expense, exercise due diligence in securing from the presiding magistrate a protective order, or similar, and will designate such production/appearances with the highest level of confidentiality available pursuant to the applicable protective order or similar. Customer will notify TechInsights in the event that such materials are required to be produced in litigation by identifying, to the extent permitted by law, all pertinent information needed to identify the materials that have been or may be disclosed and the associated legal action.
11 – DISCLAIMER, REPRESENTATIONS AND WARRANTIES: The Services, Deliverables and Content are provided “AS IS.” TechInsights disclaims all other representations, warranties and conditions, either express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, with respect to the Services, Deliverables or Content. No representation or other affirmation of fact, including but not limited to marketing literature or collateral or statements regarding the Services, Deliverables or Content by TechInsights, which is not contained in this Agreement shall not be considered to be a warranty or representation, should not be relied upon and is not binding upon TechInsights. If items or materials which are to be the subject of the Services or Deliverables (“Analyzed Items”) are being provided by Customer, Customer warrants that it has the right to furnish TechInsights with the Analyzed Items free of any restrictions. All analyses are done without participation, authorization, or endorsement of the manufacturer. Any cost analyses presented in TechInsights material are estimates prepared by TechInsights from publicly available data. While TechInsights believes that these estimates reflect the probable costs, the actual producer did not supply the data, and therefore the actual costs may be different from these estimates. TechInsights reserves the right to adjust the content or emphasis of Deliverables or Content without prior written notice.
12 - TERMINATION AND CANCELLATION: Either party shall have the right to terminate any or all activities under this Agreement for any reason and at any time upon fourteen (14) days notice to the other party. TechInsights agrees to immediately terminate the specified activity pursuant to this Agreement upon termination or cancellation. Should termination or cancellation be at the request of Customer, Customer agrees to reimburse TechInsights for all work up to and including the date of cancellation at a rate of USD$350 per hour. Should termination or cancellation be at the request of TechInsights, Customer and TechInsights agree to negotiate a settlement of payment to TechInsights that is a fair and reasonable representation of the value of any and all information given to Customer prior to or following the date of cancellation.
13 - PATENT CLAIMS ANALYSIS: Customer acknowledges that, where the Services and/or Deliverables include the comparison of patent claims to Analyzed Items, or schematic or other representations of elements of those Analyzed Items, such work is investigative in nature and the results cannot be predicted in advance and TechInsights cannot warrant that the completion of all Services or Deliverables will yield results which meet the Customer’s preferences. Customer further acknowledges that while TechInsights takes steps to ensure the accuracy of the Deliverables, patent and patent claims analysis inherently involve a certain level of uncertainty, which may be due to, for example, inherent subjectivity of patent language and patent claim analysis, existence of unpublished patent documents and changing legal decisions and principles. Customer agrees and acknowledges that its obligation to make payment under this Agreement is not dependent on the results of the Services or Deliverables and agrees to make all payments regardless of said results.
14 - LIMITATIONS ON LIABILITY: IN NO EVENT SHALL TECHINSIGHTS BE LIABLE TO CUSTOMER FOR ANY CLAIM, DAMAGE, INJURY OR LOSS OF ANY NATURE, INCLUDING WITHOUT LIMITATION ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY CUSTOMER OR ANY THIRD PARTY, ARISING OUT OF (I) THE PREPARATION, USE, OR PROVISION OF THE DELIVERABLES OR THE INCLUSION OF OR RELIANCE UPON ANY INFORMATION THEREIN; OR (II) THE AVAILABILITY OF CONTENT OR DELIVERABLES ON THE WEB SITE; INCLUDING WITHOUT LIMITATION, FAILURE TO REALIZE EXPECTED SAVINGS OR PROFITS, LOSS OF REVENUES OR PROFITS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF TECHINSIGHTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE. IN ANY EVENT, THE AGGREGATE LIABILITY OF TECHINSIGHTS, ITS PARENT, SUBSIDIARIES OR AFFILIATES, WHETHER FOR TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR FAILURE OF AN ESSENTIAL PURPOSE), MISREPRESENTATION OR OTHERWISE, IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES, SHALL IN NO CIRCUMSTANCES EXCEED THE AMOUNTS PAID BY CUSTOMER, IN RESPECT OF THE SERVICE OR DELIVERABLE GIVING RISE TO THE CLAIM TO TECHINSIGHTS IN THE 12-MONTH PERIOD PRIOR TO CUSTOMER’S CLAIM. THE LIMITED WARRANTY, EXCLUSIVE REMEDIES AND LIMITED LIABILITY SET OUT HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CUSTOMER AND TECHINSIGHTS, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT TECHINSIGHTS WOULD NOT BE ABLE TO PROVIDE THE HIGHLY SPECIALIZED AND TECHNICAL DELIVERABLES AT THE RATES CHARGED WITHOUT SUCH LIMITATIONS.
15 - GENERAL: You affirm that you are more than 18 years of age and are otherwise fully able and competent to enter into, abide by and comply with the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement.The failure of a party to enforce at any time or for any period of time any of the provisions of this Agreement shall not constitute a waiver of such provisions or the right of a party to enforce each and every provision thereof. TechInsights’ failure to expressly object to provisions contained in any customer-issued procurement document shall not be deemed acceptance of any of the provisions contained therein nor deemed a waiver of the provisions contained in this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, excluding that body of law applicable to choice or conflict of law. Any claims or disputes arising out of this Agreement or any Confidential Information disclosed pursuant to this Agreement may only be brought in a court of competent jurisdiction in Ottawa, Ontario, Canada, and both parties irrevocably and unconditionally consent to the jurisdiction of any such court. This Agreement constitutes the entire agreement between the parties with respect to the applicable Services and Deliverables which are the subject of this Agreement and supersedes all prior or subsequent agreements, communications and understandings of any nature whatsoever, whether written or oral, unless agreed in writing by the parties. Neither party may assign this Agreement without the prior written consent of the other party (which shall not be unreasonably withheld or delayed in the case of a merger or acquisition or other similar corporate change, but not including a sale of assets); provided, however, that either party may assign this Agreement to an affiliate without such consent upon 30 days notice. This agreement is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns. There are no third-party beneficiaries to this Agreement. The parties declare that they have required that the Agreement and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarent par les présentes qu'ils exigent que cette entente et tous les documents y afférents, soit pour le présent ou l'avenir, soient rédigés en langue anglaise seulement
1 877 826 4447
© Copyright 2016 TechInsights Inc. All rights reserved