ion Service Agreement

PLEASE READ THIS ION SERVICE AGREEMENT ("SERVICE AGREEMENT") CAREFULLY BEFORE EXECUTING THE ION PLATFORM SUBSCRIPTION AGREEMENT AND/OR THE ION PROPOSAL AND/OR THE ION QUOTE ("AGREEMENT" AND/OR "PROPOSAL" AND/OR "QUOTE") OR USING THE SOFTWARE ("ION PLATFORM" or "PLATFORM")  OR ANY OF THE SERVICES DESCRIBED IN THE AGREEMENT PROVIDED BY I-ON INTERACTIVE, INC. ("ION") TO THE COMPANY ("CUSTOMER") REFERENCED IN THE AGREEMENT. BY ACCEPTING THIS SERVICE AGREEMENT THROUGH THE PROCESS OF ACCEPTING THE  AGREEMENT OR PROPOSAL OR QUOTE, CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT. FOR THE PURPOSES OF THIS AGREEMENT THE TERMS AGREEMENT, QUOTE AND PROPOSAL ARE USED INTERCHANGEABLY AND HAVE THE SAME MEANING.

This Service Agreement is between Customer and ion, and is made effective as of the date Customer accepts the Agreement. The terms of this Service Agreement shall apply to use of the Services identified in the Agreement or Proposal as well as all other services provided by ion. The terms of the Agreement shall control over any different or additional terms of any purchase order or other non-ion ordering document, and no terms included in any such purchase order or other non-ion ordering document shall apply to the Services. The terms of the Agreement between Customer and ion shall control over any conflicting terms in this Service Agreement.

Any terms used in this Service Agreement and not otherwise defined shall have the meaning ascribed to them in the Agreement.

  1. License.  ion hereby grants to Customer a non-transferable, non-exclusive right and license to use for Customer’s business, ion’s intellectual property, during the Term.
    1a. Maximum usage. Unless otherwise specified in the Subscription Agreement, Customer subscription is based on a monthly allowable traffic and total storage capacity. Based upon the monthly allowable traffic and storage capacity outlined in your Agreement, the maximum allowable traffic per hour are as follows (where level is specific to your subscription):
    1. For 40,000 total respondent storage, 10,000 unique respondents per month, 101 GB maximum monthly bandwidth, 1,111 respondents maximum per hour;
    2. For 100,000 total respondent storage, 40,000 unique respondents per month, 101 GB maximum monthly bandwidth, 1,111 respondents maximum per hour;
    3. For 200,000 total respondent storage, 50,000 unique respondents per month, 101 GB maximum monthly bandwidth, 1,111 respondents maximum per hour; 
    4. For 400,000 total respondent storage, 100,000 unique respondents per month, 148 GB maximum monthly bandwidth, 1,563 respondents maximum per hour;
    5. For 800,000 total respondent storage, 200,000 unique respondents per month, 296 GB maximum monthly bandwidth, 3,125 respondents maximum per hour;
    6. For 2,000,000 total respondent storage, 500,000 unique respondents per month, 592 GB maximum monthly bandwidth, 6,250 respondents maximum per hour;
    7. For 4,000,000 total respondent storage, 1,000,000 unique respondents per month, 1,500 GB maximum monthly bandwidth, 12,500 respondents maximum per hour;
    8. For 8,00,000 total respondent storage, 2,000,000 unique respondents per month, 2,333 GB maximum monthly bandwidth, 12,500 respondents maximum per hour.
  2. Usage overage. As defined in the Agreement or Proposal, Customer is subscribed to a specified traffic level, which allows for a pre-defined number of unique respondents per month. For any traffic overage that exceeds the tier the Customer's subscribed traffic level Customer will be billed at a 'per respondent' rate for respondent overages within the given billing period during which the overage occurred. Respondent rates are based upon the subscribed traffic tier respondent rate price levels.
  3. Confidentiality.  We each agree to keep the other’s information, which is exchanged or generated during the Term, confidential and not to disclose that information or use that information to the detriment of the other.  Notwithstanding the foregoing, confidential information does not include any items/information which have become publicly known and made generally available through no wrongful act of Customer or of others who were under confidentiality obligations with respect to the item or items involved or a court order covering the items/information.  We each expressly agree that our independent contractor relationship will not change the ownership of each of our individual confidential information.  Notwithstanding the foregoing, ion acknowledges and agrees that all of the data collected from your clients/customers/respondents shall remain your property.
  4. Payment. If customer fails to cure any default under this Agreement ion may, in addition to any other rights or remedies available to ion, shut down the ion Platform Console until the default is cured. Customer shall pay to ion all applicable sales or use taxes assessed by a government authority with respect to the services and/or products provided by ion under this Agreement.
  5. Intellectual Property Ownership.  It is expressly agreed that all right, title and interest in and to the technology used in connection with the delivery of services under the Agreement (including any and all modifications to the ion Platform as a result of any implementation services rendered) are and shall remain the exclusive property of ion.
  6. LIMITATION OF LIABILITY.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ION AND ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR DESIGNEES, SHALL NOT BE LIABLE FOR ANY LOSS INCURRED BY YOUR COMPANY OCCASIONED BY ACTS PERFORMED (OR NOT PERFORMED) BY THEM, ANY DATA LOST OR ADVICE OR ASSISTANCE GIVEN BY THEM, IN GOOD FAITH IN THE PERFORMANCE OF THEIR DUTIES HEREUNDER, AND IN ANY EVENT SHALL BE LIABLE ONLY FOR WILLFUL WRONGDOING OR GROSS NEGLIGENCE AND NOT FOR HONEST ERRORS OF JUDGMENT; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL ION OR ANY SUBCONTRACTOR BE HELD LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFITS SUFFERED BY YOUR COMPANY OR BY ANY THIRD PARTY, AND THE AMOUNT OF DAMAGES CLAIMED IN RESPECT OF ALL BREACHES SHALL NOT EXCEED THE AMOUNT OF COMPENSATION WHICH YOUR COMPANY OWES AND/OR HAS PAID TO ION FOR THE MONTH DURING WHICH THE BREACH OF CONTRACT HAS OCCURRED.
  7. Indemnification.  Each of ion and Customer expressly agrees to indemnify and hold the other and its respective subcontractors, and its and their respective officers, directors, agents and designees, from and against all costs, damages, judgments, attorneys' fees, expenses, obligations and liabilities of every kind and nature which they or any of them may incur, sustain or be required to pay in connection with or arising out of any breach by the indemnifying party of any term, representation, or warranty of the Agreement, or any negligent or wrongful act by the indemnifying party. The indemnifying party shall be given prompt notice of any such claim and shall have the opportunity to defend the claim.
  8. Default.  If either party fails to perform any of its obligations contained in the Agreement the other party shall have the right to terminate the Agreement if that default is not cured within thirty (30) days of written notice detailing the default; except for payment defaults which must be cured within ten (10) days of written notice detailing the default. Termination of the Agreement shall not effect the rights of the non-defaulting party, including ion’s right to receive payment.
  9. Representations.
    (a)  Each of the parties to the Agreement represent and warrant to the other that they have the authority to enter into the Agreement and to perform its obligations as listed in the Agreement.
    (b)  ion represents and warrants to Customer that services (training and support) will be performed in a professional manner and delivered in accordance with applicable law.
  10. Limited Warranty.  The hosting services are provided, and the Platform is made available to customer “as is” and ion and its suppliers make no warranty, whether express or implied regarding the hosting services, and specifically disclaim the warranties or merchantability, or fitness for a particular purpose.

    ion cannot and does not guarantee the privacy, security, authenticity and non-corruption of any information transmitted through, or stored in any system connected to, the Internet. ion will use all commercially reasonable efforts to adequately maintain, and upgrade as necessary, the ion Platform to provide the Platform subscription to its customers. Except as expressly set forth herein, ion shall not be responsible for any delays, errors, failures to perform, or disruptions in the Subscription caused by or resulting from any act, omission or condition beyond ion's reasonable control.

  11. Limited Publicity Right. Customer hereby consents to and agrees that ion may use Customer‘s name and/or logo on its web site or in its presentations.
  12. Governing Law.  The Agreement and this Service Agreement shall both be governed by the internal laws of the State of Florida, without application of its conflicts of laws provisions.  Any action brought to enforce the Agreement shall only be brought in the Federal or State Courts located in Palm Beach County, Florida.
  13. Assignment and Amendment.  The Agreement may not be assigned without the written consent of the other party.  No amendment to the Agreement shall be binding unless signed by both parties to the Agreement.
  14. Counterparts. The Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each party and sent to the other party, it being understood that both parties need not sign the same counterpart. Facsimile copies of original signatures shall have the same force and effect as original signatures.
  15. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer's obligation to pay for the Services provided.
  16. Statistical Information. Notwithstanding anything else in the Agreement or this Service Agreement, ion may compile statistical and performance information related to the provision of the Services, and may make such information publicly available, provided that such information does not incorporate Customer's Data and/or identify Customer's confidential information. ion retains all intellectual property rights in such information.
  17. Notices. All notices given under this Services Agreement by ion shall be sent via e-mail to the customer contact provided by customer in the Subscription Agreement or Proposal and all notices given by customer under this Subscription Agreement to ion shall be sent via email to info@ioninteractive.com, or via postal mail to 200 East Palmetto Park Road, Suite 107, Boca Raton, Florida 33432.
  18. Independent Contractors. The parties to the Agreement are independent contractors. No relationship of partnership, agency, joint venture, employer/employee shall exist between the parties and neither party shall have the authority to obligate, represent, or bind the other without such other party‘s express written consent.
  19. Surviving Provisions. Notwithstanding termination or expiration of the Agreement, the provisions of Sections 2, 3, 4, 5, 7, 10 and 11 of this Service Agreement shall survive and remain in full force and effect.

Updated: October 1, 2014