Terms of Service
Terms of Service
Version: P20231116
1 Definitions
“Access Type” means level of access to Inspectivity Platform components. Three levels are defined Portal + Go, Portal and Portal Readonly. Each User Account has an Access Type which is derived from the Permissions assigned to their User Account.
“Active User Account” means User Account with active status in Portal.
“Agreement” means this Inspectivity Platform Agreement including Schedule 1 – Schedule of Rates.
“Application” means Inspectivity Platform.
“Asset” means Equipment model entity as defined in Inspectivity Platform software. Assets are represented by Items in Asset Hierarchy.
“Asset Hierarchy” means the hierarchical structure of Modules, Items and Inspections within the Inspectivity Platform.
“Cloud Hosted Implementation” means an Inspectivity Platform hosted by Inspectivity using Amazon Web Services (AWS).
“EU Data Protection Laws” means, up to and including 24 May 2018, any legislation in force from time to time which implements the EU Directive 95/46/EC and relevant national implementations of the same and, with effect on and from 25 May 2018, means the EU General Data Protection Regulation 2016/679 (“GDPR”) and any relevant national implementations of the same.
“Go” means the Inspectivity mobile application deployed on Android tablets and forms part of the Inspectivity Platform. Go’s primary function is the performance of inspections (recording of results) in the field.
“Inspection/s” means an inspection model entity as defined in Inspectivity Platform software which is a container for recording inspection results against an Asset. Assets can have 0 to many inspections.
“Inspection Activity” / “Inspection Activities” means Inspection(s) based on an Inspection Template for an Asset and following a prescribed Inspection Workflow.
“Inspection Template” means an electronic procedure template maintained within the Inspectivity Platform.
“Inspectivity” means Inspectivity Pty Ltd (ACN 161-679-474)
“Inspectivity Consultant” means Inspectivity Pty Ltd employees or contractors.
“Inspectivity Professional Services” means customisation, integration, training or other services performed by Inspectivity Consultant(s).
“Inspectivity Platform” means the Inspectivity Portal web application and Go mobile app for Android.
“Inspectivity Platform Instance” means Cloud Hosted Implementation of the Inspectivity Platform for a Subscriber.
“Item” means element of Asset Hierarchy. Inspection Activities can be referenced on an Item.
“Minor Works” means work performed by Inspectivity Consultant at written request of Subscriber.
“Module” means a tier in Asset Hierarchy that can contain other child Module(s) or Item(s). Inspection Activities cannot be referenced on a Module.
“Multi-Tenant” means shared cloud infrastructure.
“Performed (P1) Inspection State” means Inspection with status set to Performed within Inspectivity Platform.
“Permission” means a rule which governs access to functionality, components, or data within the Inspectivity Platform.
“Personal Information” has the meaning given in the Privacy Act 1988 (Cth).
“Personal Data“, “Sensitive Personal Data“, “Consent“, “Data Controller“, “Data Processor“, “Data Subject“, and “Data Processing” mean those concepts, roles and activities as defined in the applicable EU Data Protection Laws and on and from 25 May 2018 sensitive personal data means those classes of personal data that are described in Article 9 of the European General Data Protection Regulation 2016/679) or, where relevant, equivalent concepts, roles and activities as described in other Data Protection Laws.
“Portal” means the Inspectivity application which is hosted on Inspectivity’s cloud partner infrastructure (Amazon Web Services) and forms part of the Inspectivity Platform. Portal is accessed via a browser. Go app connects to Portal to upload and download inspection data.
“Production” means Inspectivity Platform Instance operational or “live” environment.
“Reporting Artifacts” means any report output file generated by the Inspectivity Platform.
“Security Incident” means any instance where there is an existing or impending negative impact to the confidentiality of Subscriber Data, Inspectivity data, or Service.
“Service” means hosting of the Inspectivity Platform as identified in the Agreement, developed or licensed, operated, and maintained by Inspectivity, accessible via a designated Inspectivity website or IP address, or ancillary online or offline products and services provided to Subscriber by Inspectivity, to which the Subscriber is being granted access under this Agreement.
“Service Level Agreement” means agreed service levels between Inspectivity and Subscriber as outlined in this Agreement.
“Single Tenant” means Subscriber dedicated server and supporting infrastructure. Each Subscriber instance is separate and does not share any data or computing resources with other Inspectivity Platform installations/subscribers.
“Staging” means Inspectivity Platform Instance testing / non-operational environment.
“Subscriber” means the individual or entity as defined in the Agreement that subscribes for the Service.
“Subscriber Data” means transactions, reports, and configurations, entered into, or produced by the Inspectivity Platform. Excluding where data has been provided by Inspectivity as part of Inspectivity Platform or Service (for example digital inspection templates).
“Support Policy” means support policy between Inspectivity and Subscriber as outlined in this Agreement.
“Terms of Service” means terms and conditions set forth in this document.
“User” means Subscriber’s employees, representatives, consultants, contractors, customers or agents who are authorized to use the Service and have been supplied user identifications and passwords by Subscriber (or by or for Inspectivity at Subscriber’s request).
“User Account” / “User Accounts” means named login account for User providing secure access to the Inspectivity Platform Instance.
“Working Day” means Monday to Friday 8am – 6pm excluding West Australian public holidays.
2 Service
2.1 Subscriber acknowledges and agrees to the terms of service herein. In addition, Subscriber agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new Service(s) subsequently purchased by the Subscriber will be subject to this Agreement.
2.2 Subscriber acknowledges that the Service is simply a tool to assist the Subscriber, that Inspectivity does not provide engineering, legal or compliance services, and that the Subscriber is solely responsible for the Subscriber’s compliance with all laws, rules and regulations applicable to the Subscriber.
2.3 In order to use the Inspectivity Platform, Subscriber must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. Subscriber must also provide all equipment necessary to make such (and maintain such) connection to the World Wide Web. Inspectivity Platform Instance, Inspectivity Service Desk and Inspectivity Knowledge Base IP addresses and hostnames to be whitelisted on Subscriber network.
2.4 Access to an Inspectivity Platform Instance is permitted only by a named User Account. Subscriber acknowledges and agrees that Subscriber is prohibited from sharing passwords and/or usernames. Shared company/team accounts are not permitted and will be deemed a material breach of this Agreement. Inspectivity in its sole discretion may terminate Subscriber’s password, account or use of the Service and this Agreement if Subscriber breaches or otherwise fails to comply with this Agreement. Subscriber will be responsible for the confidentiality and use of Subscriber’s (including its employees’) passwords and usernames.
2.5 Subscriber agrees to use software produced by third parties, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by Inspectivity. Until notified otherwise by Inspectivity, Subscriber agrees to use software that supports the Secure Socket Layer (SSL/TLS) protocol or other protocols accepted by Inspectivity and to follow logon procedures for services that support such protocols. Subscriber acknowledges that Inspectivity is not responsible for notifying Subscriber of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by Inspectivity or telecommunications facilities, including, but not limited to, the Internet.
2.6 Inspectivity employs security measures designed for the protection of information and data. However, Subscriber understands that the technical processing and transmission of Subscriber’s electronic communications is fundamentally necessary to Subscriber’s use of the Service. Subscriber agrees that Inspectivity is not responsible for any electronic communications and/or Subscriber Data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Inspectivity.
2.7 Subscriber hereby grants Inspectivity a worldwide, limited-term license to host, copy, transmit, process and display Subscriber Data as necessary for Inspectivity to provide the Service and/or develop future features or enhancements according to the terms of this Agreement.
2.8 Notwithstanding anything to the contrary in the Agreement, Inspectivity will meet or exceed the service levels set forth in Service Level Agreement with respect to its performance of the Services.
3 Hosting and Data Retention
3.1 This Agreement is valid for a Cloud Hosted Implementation only. Inspectivity reserves the right to select Amazon Web Services data centres as required to provide optimum service to our clients.
3.2 Your data is automatically backed up by the Amazon RDS and Backup infrastructure. Backups of 30 days are kept available.
3.3 Upon termination of this Agreement Inspectivity ensures the proper disposal, destruction or encryption of Subscriber Data in a manner designed to guarantee that the Subscriber Data cannot be read or reconstituted such that it could be used by any party after such disposal, destruction or encryption.
3.4 Subscriber Data can be exported through available functions in the Portal application user interface or via custom-developed CSV/JSON exports (subject to feasibility. Fees apply). Inspectivity does not provide raw database exports.
4 Security
4.1 All communication between server and clients is encrypted. Subscriber Data is encrypted while at rest on Inspectivity’s systems, including any data backups.
4.2 Passwords are stored securely using a cryptographically secure and salted hash.
4.3 Inspectivity Platform infrastructure is only accessible to Inspectivity Support resources.
4.4 Inspectivity Platform Subscriber instances are Multi-Tenant instances.
4.5 Inspectivity aims to ensure the Subscriber does not experience a Security Incident. However, we acknowledge that a Security Incident has the potential to happen. We have a documented process for handling a Security Incident which includes notifying the Subscriber within 72 hours or without undue delay if their data is involved in an incident or a breach.
4.6 Inspectivity must: (i) ensure that any Personal Information is collected, used, stored, disclosed or handled by Inspectivity and its subcontractors and personnel in accordance with the Privacy Act 1988 (Cth), and any other applicable law; (ii) ensure that any Personal Information collected, used, stored, disclosed or handled by Inspectivity and its subcontractors and personnel on behalf of the Subscriber is in a form approved by the Subscriber, in accordance with the Privacy Act 1988 (Cth) and any other applicable law; (iii) immediately notify the Subscriber of: (A) any complaint about the privacy of Personal Information received by Inspectivity or its subcontractors; (B) any request for access to Personal Information received by Inspectivity or its subcontractors; (iv) not provide an individual with access to any the Subscriber Data in response to a request for access to Personal Information without the Subscriber’s prior written consent; and (v) comply with all directions of the Subscriber in connection with any complaint or request referred to in clause 6.7(iii) or any complaint or request received by the Subscriber in connection with any Personal Information that is collected, used, stored, disclosed or handled by Inspectivity or its subcontractors. In the event of any privacy complaint or incident relating to the Service, or any other actual or suspected interference with privacy, Inspectivity will cooperate with Subscriber reasonable directions in respect of the matter and take any necessary steps to contain and rectify.
5 Intellectual Property
5.1 Subscriber acknowledges and agrees that the Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Subscriber further acknowledges and agrees that content or information presented to Subscriber through the Service or by advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
5.2 All Subscriber Data is and shall remain the sole property of Subscriber. If and to the extent that Inspectivity has or obtains any rights in or to any Subscriber Data, Inspectivity hereby assigns and agrees to assign and to cause its employees and agents to assign any and all such rights to Subscriber or its designee for no additional consideration.
5.3 The parties acknowledge and agree that as between the parties, Inspectivity owns all right, title, and interest in the Service, Inspectivity Platform and the Inspectivity Technology and underlying software and proprietary and intellectual property rights therein including any changes made by Inspectivity at the request of Subscriber. The use by Subscriber of any of these rights is authorised only for the purposes set forth herein and upon expiration or termination of this Agreement for any reason such authorisation will cease.
5.4 Any publicly available information or common industry practises and concepts are not considered as Intellectual Property of either party.
5.5 “Feedback” means any feedback, comments, suggestions or materials that Subscriber may provide to Inspectivity about or in connection with the Service, including any ideas, concepts, know-how or techniques contained therein. Subscriber may provide Feedback in connection with Maintenance and otherwise. Subscriber hereby grants Inspectivity a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, including incorporating or implementing the Feedback in the Service. Subscriber agrees that Inspectivity may exploit all Feedback without any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed Subscriber’s Confidential Information, and nothing in this Agreement (including Section 17 (Confidentiality)) limits Inspectivity’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
6 Restrictions and Responsibilities
6.1 This is a contract for Services and the Application software will be installed, accessed and maintained only by or for Inspectivity and no license is granted thereto. Subscriber agrees that it will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any Application, software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; or remove any proprietary notices or labels. Subscriber represents, covenants, and warrants that Subscriber will use the Services only in compliance with Inspectivity’s standard policies then in effect (the “Policy”) and all applicable laws (including but not limited to policies and laws related to spamming, privacy (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation). Subscriber hereby agrees to indemnify and hold harmless Inspectivity against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Subscriber’s use of Services. Although Inspectivity has no obligation to monitor the content provided by Subscriber or Subscriber’s use of the Services, Inspectivity may do so and may remove any such content or prohibit any use of the Services it believes may be (or are alleged to be) in violation of the foregoing.
6.2 Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, web services, long distance and local telephone service (collectively, “Equipment”). Subscriber shall be responsible for ensuring that such Equipment and services are compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in the proposal and/or Inspectivity’s published policies then in effect. Subscriber shall also be responsible for maintaining the security of the Equipment, Subscriber account, ancillary services, passwords (including but not limited to administrative and User Account passwords) and files, and for all uses of Subscriber account, Services or the Equipment with or without Subscriber’s knowledge or consent.
6.3 Unauthorised modification by Users of Reporting Artifacts will be deemed a material breach of this Agreement. Inspectivity in its sole discretion, may terminate Subscriber’s password, account or use of the Service and this Agreement if Subscriber breaches or otherwise fails to comply with this Agreement.
6.4 Subscriber shall be responsible for managing User Account access for Subscriber’s employees, representatives, consultants, contractors, customers or agents who are authorized to use the service including deactivation of User Accounts no longer required for operations.
7 Fees and Billing
7.1 User Subscriptions can be activated and deactivated during the Term. Users can be deactivated at any time. A minimum of 1-month access will be invoiced for creation of new user account or account reactivation. Pro-rata billing for a user once minimum 1-month access requirements are met.
7.2 Unless otherwise indicated by Inspectivity for the relevant Service, Fees for the subscription or use of a Service are payable and remitted to Inspectivity, as further described in this paragraph immediately below. Inspectivity charges and collects Fees in arrears for use of the Service. Inspectivity will automatically renew and issue an invoice every month.
7.3 Inspectivity invoice subscriptions monthly for the previous calendar month. Invoice terms are 30 days from the date of issue.
7.4 For Inspectivity Professional Services, Inspectivity invoice 50% of the scope of work at receipt of the client purchase order or at commenced of works. Remaining balance will be invoiced after completion of the scope of work. Invoice terms are 30 days.
7.5 All price information (unless otherwise specified) is quoted in Australian Dollars. Australian Good and Services Tax (GST) will be included as required. All fees are net of foreign transaction fees.
7.6 Payments made by the Subscriber under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Inspectivity, the Subscriber must pay to Inspectivity the amount of such taxes or duties in addition to the Service Fees under this Agreement. Notwithstanding the foregoing, the Subscriber may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In such event, Subscriber shall have the right to provide to Inspectivity with any such exemption information and Inspectivity will use reasonable efforts to provide such invoicing documents as may enable the Subscriber to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
8 Non-Payment and Suspension
8.1 All payments for Fees shall be due according to the terms in Section 7 (Fees, Billing and Renewal) and as provided on the relevant Service, and shall be deemed delinquent if not received by the due date. In addition to any other rights granted to Inspectivity herein, Inspectivity reserves the right to suspend or terminate this Agreement and Subscriber’s access to the Service if Subscriber’s account becomes delinquent. Delinquent invoices are subject to interest charges of 5% per month on any undisputed outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection including, but not limited to, reasonable attorney and accounting fees, court costs and other expenses of collection. Subscriber will continue to be charged for User Subscriptions during any period of suspension. If Subscriber or Inspectivity initiates termination of this Agreement, Subscriber will be obligated to pay the balance due on account computed in accordance with this Section and the Fees, Billing and Renewal Section above. Subscriber agrees that Inspectivity may charge such unpaid Fees and bill Subscriber for such unpaid Fees and charges. Subscriber agrees and acknowledges that Inspectivity has no obligation to retain Subscriber Data and that such Subscriber Data may be irretrievably deleted if Subscriber’s account becomes delinquent.
9 Term and Termination
9.1 This Agreement commences on the Effective Date with successive automatic renewals of one year unless terminated under Sections 8 or 9. Either party may terminate this Agreement, by notifying the other party in writing at least thirty (30) days prior to the date of the invoice for the following billing period. Subscriber agrees and acknowledges that Inspectivity has no obligation to retain the Subscriber Data, and may delete such Subscriber Data upon termination.
9.2 Any breach or delinquency of Subscriber’s payment obligations or unauthorized use of the Inspectivity Technology or Service will be deemed a material breach of this Agreement. Inspectivity in its sole discretion, may de-activate or terminate Subscriber’s password, account or use of the Service and this Agreement if Subscriber breaches or otherwise fails to comply with this Agreement. Subscriber agrees and acknowledges that Inspectivity has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, if Subscriber has materially breached this Agreement, including, but not limited to, failure to pay outstanding Fees, and such breach has not been cured within 15 days of payment delinquency or notice of such breach.
10 Assignment, Successors and Assigns
10.1 Subscriber shall not transfer or assign this Agreement or any rights or obligations hereunder without the prior written consent of Inspectivity, and any attempted assignment or transfer in violation of the foregoing will be void. This Agreement will be for the benefit of the permitted successors and assigns, and will be binding on heirs, legal representatives and permitted assignees.
11 Publicity Rights
11.1 Subscriber grants Inspectivity the right to include the Subscriber as a customer in Inspectivity’s promotional material. Subscriber can opt to have their name excluded from such use by notifying Inspectivity in writing.
12 Representation and Warranties
12.1 Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Inspectivity represents and warrants that it will use commercially reasonable efforts to provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof.
13 Indemnification
13.1 By Inspectivity. Inspectivity shall defend, indemnify and hold Subscriber harmless from all settlements agreed to by Inspectivity and all costs and direct damages finally awarded to a third party to the extent they arise out of a claim that the Service as delivered to Subscriber infringes a third party’s registered Australian or U.S. patent or copyright. Subscriber will be entitled to indemnification only (i) if Subscriber notifies Inspectivity in writing promptly after it becomes aware of a claim; (ii) Inspectivity has sole control of the settlement, compromise, negotiation and defence of any such action (provided that Inspectivity may not settle any claim without obtaining the consent of the Subscriber, such consent not to be unreasonably withheld or delayed); and (iii) Subscriber gives Inspectivity all reasonably available information and assistance, at Inspectivity’s expense. Subscriber shall have the right to participate in the defence or settlement with counsel of its own choosing at Subscriber’s expense. Inspectivity may, at its option, obtain the right to continued use of the Service, substitute other equivalent service, or modify the Service so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible in Inspectivity’s sole discretion, terminate Subscriber’s right to the allegedly infringing Service and refund to Subscriber a pro rata portion of the amount which Subscriber has paid for such Service. The foregoing indemnity will not apply to any infringement claim arising from (a) modification of the Service by Subscriber or any person at Subscriber’s direction, (b) combination of the Service with hardware and/or other software and/or ancillary services, if such claim would have been avoided by not so combining the Service, or (c) use of the Service other than in accordance with Inspectivity instructions and documentation. THE FOREGOING STATES INSPECTIVITY’S SOLE OBLIGATION AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND.
13.2 By Subscriber. Subscriber shall defend, indemnify and hold Inspectivity harmless from all third party claims and settlements agreed to by Subscriber and all costs and direct damages awarded to a third party to the extent they arise out of Subscriber’s infringement of any third party rights, or breach of any provision of this Agreement, or making representations or warranties regarding the Service to other third parties. Inspectivity agrees that (i) it shall provide written notice promptly after it first becomes aware of a claim; (ii) Subscriber shall have sole control of the settlement, compromise, negotiation and defence of any such action (provided that Subscriber may not settle any claim without obtaining the consent of Inspectivity, such consent not to be unreasonably withheld or delayed); and (iii) it shall give Subscriber all reasonably available information and assistance, at Subscriber’s expense. Inspectivity shall have the right to participate in the defence or settlement with counsel of its own choosing at Inspectivity’s expense.
14 Disclaimer of Warranties
14.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, INSPECTIVITY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE.
15 Exclusion of Damages and Limitation of Liability
15.1 IN NO EVENT WILL INSPECTIVITY’S AGGREGATE LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY SUBSCRIBER TO INSPECTIVITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL EVENT RESULTING IN SUCH CLAIMS. INSPECTIVITY WILL NOT BE LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF INSPECTIVITY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING UNDER ALL AGREEMENTS, AND SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
15.2 The Service is controlled and operated from Inspectivity’s facilities in Australia and hosted at a location as per the Agreement. Inspectivity makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by Australia, or are a foreign person or entity blocked or denied by the Australian government.
16 General Provisions
16.1 This Agreement is governed by the laws of Western Australia (WA), Australia and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of WA, Australia. This Agreement, including all proposals provided by and entered with Inspectivity in connection herewith, constitutes the entire agreement between the parties with regard to its subject matter, supersedes all prior or contemporaneous agreements, commitments, representations, writings, and discussions between the parties, whether oral or written, shall apply in lieu of the terms or conditions in any Subscriber purchase order or other order documentation (all such terms or conditions shall be null and void), and there are no other agreements, representations, warranties, or commitments which may be relied upon by either party. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party. If a court of competent jurisdiction finds any provision hereof invalid or unenforceable, that provision will either be amended to achieve as nearly as possible the intent of the parties, or if amendment is not possible the offending provision shall be deemed struck, and the remainder of this Agreement will remain in full force and effect. The captions and headings in this Agreement are for convenience only and shall not effect the construction and interpretation of any provision of this Agreement. Where this Agreement is executed in hard copy and not entered into by on-line acceptance, this Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. In the event of a conflict with the provisions of this Agreement and the provisions in any proposal, the provisions of this Agreement shall prevail absolutely.
17 Confidentiality
17.1 Except as expressly permitted hereunder, each party shall hold in confidence and not use or disclose any materials or information disclosed by the other party that are marked as confidential or proprietary, or if disclosed verbally, reduced to writing and marked confidential, (“Confidential Information”), within thirty (30) days after the date of disclosure. Confidential Information includes any Applications, Software or Documentation, customer contact information of the Subscriber, any new product or service information. Each party shall treat the other party’s Confidential Information with at least the same degree of care it uses to prevent unauthorized disclosure or use of its own Confidential Information, but in no event less than reasonable care.
17.2 Confidential Information does not include any materials or information that the recipient can prove is now, or later becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (ii) is known by the receiving party at the time of disclosure as evidenced by its records; (iii) is furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the receiving party without any breach of this Agreement; (v) is the subject of a written permission to disclose provided by the disclosing party; (vi) is disclosed in response to a valid order of a court or other governmental body or any political subdivision thereof “in the jurisdiction in which the confidential information is required to be disclosed; provided, however, that the receiving party shall first have given notice to the disclosing party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for which the order was issued; or (vii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
17.3 Access to the Confidential Information is limited to employees and agents of the receiving party who have a legitimate “need to know” the information for their performance of this agreement, who have been advised of the confidential nature thereof and who have agreed in writing, as a condition of employment, engagement or otherwise, to protect the Confidential Information with terms no less than are imposed by this proposal. Notwithstanding the above, Inspectivity may use aggregate information to measure general Service usage patterns and characteristics of its user base, and may include such aggregate information about its audience in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and it is not traceable to a specific recipient or user email address. Inspectivity may assign its rights in this agreement to any third party as it determines in its absolute discretion.
18 Data Protection Compliance
18.1 Section 18 shall only apply if and to the extent that the EU General Data Protection Regulation 2016/679 (“GDPR”) applies to any of the data with which you use the Service.
18.2 By using the Service, you agree that with regard to the processing of Personal Data about your customers, you shall act as the Data Controller, Inspectivity shall act as the Data Processor. With regard to the processing of Personal Data about you and your company or employees and/or agents thereof we shall act as both the Data Controller and Data Processor. Inspectivity shall collect, process, and/or store Personal Data only for the purpose of providing the Service or other legitimate business interests in compliance with all applicable laws and regulations and all published Inspectivity policies and shall treat Personal Data as confidential information to the extent required or allowed by law and/or contract.
18.3 Residents of the European Economic Area have the right to, at any time, object to our processing of their Personal Data, ask us to restrict processing of their Personal Data, or request portability of their Personal Data. Inspectivity will comply with all such requests as required and/or permitted by law. Residents of the European Economic Area also have the right to complain to a data protection authority about the collection and processing of their Personal Data. Inspectivity will fully comply with any such authority to the extent required by law. You have the right to withdraw consent at any time and Inspectivity will respond to all such notifications of withdrawal of consent in a reasonable and timely manner. Withdrawal of consent does not affect the lawfulness of collection, processing, or storage of Personal Data which took place prior to withdrawal of consent nor does it impact the lawfulness of such activities which are performed under a legal basis other than consent.