Innovative Data Processing Solutions LLC
Innovative Tailwinds Subscription Software Agreement
These Subscription Software Terms and Conditions shall govern and apply to all software service furnished by Innovative Data Processing Solutions LLC (“Innovative”) to you (“Customer”) pursuant to (i) the terms of any written request by Customer that is accepted by Innovative, or (ii) any service level agreement, statement of work, proposal, quote, purchase order or other written agreement (“Agreement”) between Innovative and Customer providing for a subscription of any of Innovative’s software products or services. These Subscription Software Terms and Conditions shall supplement and be deemed incorporated into each Agreement and, in the event of any conflict or inconsistency between these Subscription Software Terms and Conditions and any Agreement, these Subscription Software Terms and Conditions shall govern unless such Agreement expressly states an intent to the contrary. Innovative and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Innovative provides access to the Services to its customers; and
WHEREAS, Customer desires to access the Services, and Innovative desires to provide Customer access to the Services, subject to these terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
(a) “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to an Agreement and (ii) for whom access to the Services has been purchased hereunder.
(b) “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(c) “Documentation” means Innovative’s user guides, handbooks, and other documentation relating to the Services provided by Innovative to Customer relating to the Services available at https://innovativesol.com or https://tailwindsai.com or any subdomain of either.
(d) “Innovative IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Innovative IP does not include Customer Data.
(e) “Service” or “Services” means the software-as-a-service offering known as Tailwinds and described at https://tailwindsai.com
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of an Agreement and these Subscription Software Terms and Conditions, Innovative hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Innovative shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
(b) Documentation License. Subject to the terms and conditions contained in an Agreement and these Subscription Software Terms and Conditions, Innovative hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in an Agreement and these Subscription Software Terms and Conditions. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Innovative reserves all rights not expressly granted to Customer in an Agreement and these Subscription Software Terms and Conditions. Except for the limited rights and licenses expressly granted under an Agreement and these Subscription Software Terms and Conditions, nothing in any Agreement or these Subscription Software Terms and Conditions grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Innovative IP.
(e) Suspension. Notwithstanding anything to the contrary in an Agreement or these Subscription Software Terms and Conditions, Innovative may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Innovative reasonably determines that (A) there is a threat or attack on any of the Innovative IP; (B) Customer’s or any Authorized User’s use of the Innovative IP disrupts or poses a security risk to the Innovative IP or to any other customer or vendor of Innovative; (C) Customer, or any Authorized User, is using the Innovative IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Innovative’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Innovative has suspended or terminated Innovative’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Innovative shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Innovative shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Innovative will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of an Agreement or these Subscription Software Terms and Conditions. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of an Agreement or these Subscription Software Terms and Conditions if taken by Customer will be deemed a breach of an Agreement or these Subscription Software Terms and Conditions by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of an Agreement’s provisions or a provision of these Subscription Software Terms and Conditions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
4. Service Levels and Support.
(a) Service Levels. Subject to the terms and conditions of an Agreement or these Subscription Software Terms and Conditions, Innovative shall use commercially reasonable efforts to make the Services available in accordance with the service levels in section 11 of https://innovativesol.com/mcsterms.
(b) Support. The access rights granted hereunder entitle Customer to the support services described below following the Effective Date under an Agreement or these Subscription Software Terms and Conditions and thereafter, solely if Customer purchases support services.
(i) If you pay us a Subscription Fee for our products or if indicated in an Agreement, phone and web-based ticket support is included at no additional cost for Authorized Users.
(ii) Phone Support. Phone support for paid subscriptions is available from 8am Monday to 8pm Friday EST (Eastern Standard Time). Please note, these hours may be reduced from time to time, including i) during recognized holidays in applicable locations; and ii) in all locations during Innovative’s company-wide designated week of rest.
(iii) Email and Web-Based Ticket Support. Email and web-based ticket responses are provided during phone support hours only. We attempt to respond to email and web-based ticket support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time. We may limit or deny your access to support if we determine, in our reasonable discretion, that you are acting, or have acted, in a way that results or has resulted in misuse of support or abuse of Innovative representatives.
(iv) Support Limitations. Issues resulting from your use of APIs or your modifications to code in the Service may be outside the scope of support. We do not provide support for integrations with third-party products or services.
5. Fees and Payment.
(a) Fees. Customer shall pay Innovative the fees (“Fees”) as set forth in an Agreement without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in such an Agreement. If Customer fails to make any payment when due, without limiting Innovative’s other rights and remedies: (i) Innovative may charge interest on the past due amount at the rate of 1.3% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Innovative for all costs incurred by Innovative in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for five (5) days or more, Innovative may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under an Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Innovative’s income.
(c) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of an Agreement with respect to matters necessary for accurately determining amounts due hereunder. Innovative may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by an Agreement, provided that if such inspection and audit reveals that Customer has underpaid Innovative with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 10% for any quarter. Such inspection and auditing rights will extend throughout the Term of an Agreement and for a period of two years after the termination or expiration of an Agreement.
6. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under an Agreement, including to make required court filings. On the expiration or termination of an Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of an Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership.
(a) Innovative IP. Customer acknowledges that, as between Customer and Innovative, Innovative owns all right, title, and interest, including all intellectual property rights, in and to the Innovative IP.
(b) Customer Data. Innovative acknowledges that, as between Innovative and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Innovative a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Innovative to provide the Services to Customer.
8. Warranty Disclaimer.
(a) THE INNOVATIVE IP IS PROVIDED “AS IS” AND INNOVATIVE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. INNOVATIVE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. INNOVATIVE MAKES NO WARRANTY OF ANY KIND THAT THE INNOVATIVE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification.
(a) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Innovative’s option, defend Innovative from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with an Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by an Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Innovative or authorized by Innovative in writing; or (iv) modifications to the Services not made by Innovative, provided that Customer may not settle any Third-Party Claim against Innovative unless Innovative consents to such settlement, and further provided that Innovative will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(b) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND INNOVATIVE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL INNOVATIVE’S LIABILITY UNDER THIS SECTION 9 EXCEED THE AMOUNT PAID BY CUSTOMER TO INNOVATIVE FOR THE SERVICE, AS DEFINED BY AN AGREEMENT.
10. Limitations of Liability.
IN NO EVENT WILL INNOVATIVE BE LIABLE UNDER OR IN CONNECTION WITH AN AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER INNOVATIVE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL INNOVATIVE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO AN AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO INNOVATIVE UNDER AN AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000 WHICHEVER IS LESS.
11. Term and Termination.
(a) Term. The initial term of an Agreement begins on the Effective Date and, unless terminated earlier pursuant to an Agreement’s express provisions, will continue in effect until 12 months from such date (the “Initial Term”). Each Agreement will automatically renew for additional successive terms unless earlier terminated pursuant to an Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 90 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
(b) Termination. In addition to any other express termination right set forth in an Agreement:
(i) Innovative may terminate an Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Innovative’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
(ii) either Party may terminate an Agreement, effective on written notice to the other Party, if the other Party breaches an Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate an Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of an Agreement, Customer shall immediately discontinue use of the Innovative IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Innovative IP and certify in writing to the Innovative that the Innovative IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 10, and 12 survive any termination or expiration of any Agreement. No other provisions of an Agreement survive the expiration or earlier termination of an Agreement.
12. Miscellaneous.
(a) Entire Agreement. Any Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of an Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of an Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, an Agreement, excluding its Exhibits; (ii) second, the Exhibits to these Subscription Software Terms and Conditions as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of an Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in an Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached an Agreement, for any failure or delay in performing its obligations under an Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of an Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in an Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from an Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of an Agreement or these Subscription Software Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of an Agreement or these Subscription Software Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify an Agreement or these Subscription Software Terms and Conditions so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. Each Agreement and these Subscription Software Terms and Conditions is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to an Agreement or these Subscription Software Terms and Conditions or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of Rochester and County of Monroe, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Innovative in its sole discretion. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. Each Agreement and these Subscription Software Terms and Conditions is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Contact Information
If users have any questions or suggestions regarding our privacy policy, please contact us at:
Phone: (585) 292-5070
Mailing Address: 4545 East River Road, Suite 100, West Henrietta, NY 14586