Effective August 10, 2020
These Insight Daily Q Terms of Service (the "ToS") are provided by Insight Direct USA, Inc. (“Insight”) to you and your Employer (collectively, “You,” or “Employer” or “Subscriber”), to allow You to access and use the Insight Daily Q application (the “Daily Q”), and to help You understand how the Daily Q works, the laws that apply to Insight, the rules for using the Daily Q, and the legal rights and obligations that You have.
PLEASE READ THESE TOS CAREFULLY. INSIGHT PROVIDES THE DAILY Q SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THESE TOS.
BY USING THE DAILY Q, YOU (A) ACCEPT THESE TOS AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THESE TOS ON YOUR BEHALF AND, IF YOU ARE ENTERING INTO THESE TOS ON BEHALF OF YOUR COMPANY, TO BIND IT AND ITS EMPLOYEES AND AUTHORIZED AGENTS TO ITS TERMS (EACH A “USER”). INSIGHT GIVES YOU PERMISSION TO USE THE DAILY Q ONLY IF YOU AGREE TO THESE TOS. ALTHOUGH INSIGHT MAY GIVE YOU PERMISSION TO USE THE DAILY Q, IT RETAINS ANY AND ALL INTELLECTUAL PROPERTY RIGHTS IT HAS IN THE DAILY Q.
1. Limited Rights Grant. For so long as You have access to the Daily Q (which is granted through a separate agreement with your Employer/Subscriber), Insight grants You a non-exclusive, non-transferable, non-sublicensable, revocable and limited right to use the Daily Q for internal business purposes (not for resale). Insight reserves the right to adapt and modify the Daily Q to provide different features or functionality to improve the Daily Q.
2. Authorized User Access. We rely on the Subscriber to determine who has access to the Daily Q. Subscriber is solely responsible for adding and removing Users, but such addition or removal of Users may be done either by Insight (on Subscriber’s behalf, based on Subscriber’s instruction) or directly by Subscriber. Unique passwords and usernames shall be assigned to each User. You may not share passwords or usernames. You may only present the results of Your own questionnaire. When a User is removed from an account, the Subscriber is responsible for deactivating that account to prevent unauthorized access. You must immediately notify Insight in writing of any unauthorized use of such information or passwords.
3. Security. You and Subscriber (as applicable) are responsible for: (i) ensuring that the computers, phones and other devices used to access the Daily Q are properly secured and protected; (ii) maintaining the security of Subscriber networks, servers, applications and access codes, including, without limitation, managing passwords, the backup and other protection of its system and data, against loss, damage or destruction by third parties; (iii) taking all reasonable steps to safeguard the Daily Q to ensure that no unauthorized person shall have access to it and that no unauthorized copy, publication, disclosure or distribution, in whole or in part, in any form, shall be made. You acknowledge that the Daily Q contains valuable confidential information and trade secrets and that unauthorized use and copying are harmful to Insight.
4. Privacy. You authorize the Daily Q to collect the responses that You submit to questions (“User Data”) in order to provide You with further instructions based on your responses, as determined by Subscriber. Data that is collected is not linked to an individual; rather, data is just correlated with instructions to proceed to a facility or not proceed, depending on the results of the questionnaire. Insight and Subscriber agrees not to use Your responses except as intended for use of the Daily Q, as well as to improve the performance of the Daily Q.
5. Third Party Materials. The Daily Q application is designed to be accessible from devices that are manufactured by others (“Third Party Devices”), or software that is published, or services that are provided, by parties other than Insight (collectively, “Third Party Materials”). If these Third Party Materials are not working properly, then the User Data provided may not be accurate or reliable. Users are responsible for ensuring that such Third Party Materials, including Third Party Devices, are working properly, including maintaining the Third Party Devices in accordance with all applicable manufacturer instructions. Insight does not endorse such Third Party Materials, nor does Insight make any representations or warranties with respect to such Third Party Materials.
6. Responsibility for Reviewing and Using the Daily Q. Subscriber is responsible for reviewing and approving the Daily Q for use by Subscriber’s employees, including reviewing the questions and instructions that are provided based on any given response, and for determining that the Daily Q is and remains appropriate for Subscriber’s organization. Questions are not exhaustive and draw guidance from different sources including the Centers for Disease Control and Prevention (“CDC”), however guidance changes frequently. Subscriber should consult its own sources and medical industry experts, as well as the CDC for the latest guidelines. There is significant uncertainty surrounding COVID-19, including uncertainty regarding symptoms and protocols. You should not rely on the Daily Q when making any important medical evaluations or decisions. Insight will not be responsible for any liability arising out of use of the Daily Q, including based on presenting inadequate, or overly inclusive questions or results.
7. Use Restrictions
7.1. Use Restrictions. You will not, directly or indirectly: (a) use or make any copies of the Daily Q beyond the scope of the rights granted pursuant to these ToS; (b) provide anyone other than Users with access to or use of the Daily Q; (c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Daily Q; (d) combine the Daily Q with, or incorporate the Daily Q in, any other programs; (e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Daily Q; (f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Daily Q; (g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Daily Q, or any features or functionality of the Daily Q, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, platform as a service, cloud, or other technology or service; (h) use the Daily Q in violation of any law, regulation, or rule; (i) use the Daily Q for purposes of competitive analysis, the development of a competing Daily Q product or service, or any other purpose that is to Insight's commercial disadvantage; or (j) use the Daily Q in a manner that is disruptive to, adversely impacts or causes a malfunction to Insight’s network or systems or the Daily Q itself.
7.2. Daily Q is Not A Medical Device. You may not use or rely upon the Daily Q, except as a supplemental tool, to prevent injury, illness or death, or in a way that could pose risk to health or life. You acknowledge that the Daily Q is not a medical device and is not intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease.
8. Liability for Use of Daily Q
8.1. Subscriber Liability. Subscriber is solely responsible for any use of the Daily Q, including collecting and using any User Data, and for taking or not taking any actions based on the results it obtains using the Daily Q. In the event You become aware that the Daily Q is being used in a manner not authorized by these ToS, You agree to promptly notify Insight in writing of such facts and use its best efforts to stop such unauthorized use immediately.
8.2. User Responsibilities. You agree to respond to the Daily Q questions accurately and to the best of your ability and recollection. You acknowledge that (a) Subscriber shall be solely responsible for all User Data, including User Data that is collected, input, or used in connection with the Daily Q; (b) that responses to Daily Q questions may be inaccurate or subject to error, and You accept those risks; and (c) that You must comply with all applicable local, state and federal laws, rules, regulations and requirements, including without limitation obtaining all necessary consents, and making all necessary privacy disclosures to Users who submit responses to Daily Q. In all cases, Subscriber is responsible for determining if and how the Subscriber needs to comply with all applicable laws, rules or regulations before and while using the Daily Q.
9. Intellectual Property Rights
You acknowledge and agree that Insight and its licensors own all right, title, and interest in and to all intellectual property rights (including all derivatives or improvements thereof and all trademark, copyright, and patent rights) in the Daily Q, which is Insight’s proprietary solution (hereinafter, “Insight IP”). The Insight IP is provided under limited use rights, not sold. You agree to safeguard the Daily Q, including the Insight IP, from misappropriation, theft, misuse, or unauthorized access. You agree that Insight shall own and have the right to exploit and include any suggestions, enhancements requests, feedback, recommendations, or other information provided by You without charge. The trademarks used in connection with the Daily Q are trademarks of Insight or its affiliates, or those of third parties. No right of ownership, expressed or implied, in the Insight IP or the Daily Q, is granted under these ToS.
10. Term; Termination/Suspension Rights; Effect
10.1. Term. These ToS govern so long as you use the Daily Q.
10.2. Suspension/Termination. Insight reserves the right to suspend access and/or use of the Daily Q or terminate access to the Daily Q if Insight reasonably believes that Users are using the Daily Q, and/or any Third Party Materials or other materials or services provided by Insight, not in accordance with these ToS or applicable laws, rules and government regulations.
10.3. Availability. The Daily Q is accessed using third party devices and/or third party software. Should the third party devices or software become unavailable, Users will not be able to access the Daily Q. You agree that Insight shall not be liable to You or its Users or to any other third party for any use or suspension or inability to access the Daily Q.
10.4. Effect. Upon termination or expiration of Subscriber’s separate agreement to license the Daily Q, Insight has the right to shut off access to the Daily Q. Users shall also be obligated to immediately discontinue use of the Daily Q and destroy all copies of any content relating to the Daily Q in Users' possession or control. Termination or expiration shall not relieve You of obligations that were incurred prior to termination or expiration or that by their nature or term survive, including, in the case of Subscriber, all payments due under any applicable subscriptions, if any.
11. Warranty Disclaimer
THE DAILY Q IS PROVIDED "AS IS" AND “AS AVAILABLE” WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, INSIGHT, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE DAILY Q, THIRD PARTY MATERIALS, DEVICES, PRODUCTS OR SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
USERS ACKNOWLEDGE THAT INSIGHT CANNOT ENSURE CONTINUOUS AVAILABILITY OF DATA FROM OR ACCESS TO THE DAILY Q OR ANY THIRD PARTY MATERIALS, DEVICES, PRODUCTS OR SERVICES.
12. LIMITATION OF LIABILITY
12.1. No liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL INSIGHT HAVE ANY LIABILITY TO USERS.
12.2. Damages Disclaimer. INSIGHT SHALL NOT BE LIABLE UNDER ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING EXCLUDING ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, LOST BUSINESS REVENUE, LOST GOODWILL, OTHER ECONOMIC LOSS, BUSINESS INTERRUPTION, LOSS OF DATA, USER DATA, BUSINESS INFORMATION AND THE LIKE, ARISING IN ANY WAY OUT OF THESE TOS, ANY TERMS REFERENCED IN THESE TOS, OR THE USE OF OR INABILITY TO USE THE DAILY Q, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3. Limitations – Applicability. YOU UNDERSTAND AND AGREE THAT THE LIMITATION OF LIABILITY SET FORTH IN THESE TOS IS REASONABLE AND THAT INSIGHT WOULD NOT HAVE ENTERED INTO THESE TOS WITHOUT SUCH LIMITATION. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TOS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE. INSIGHT SHALL NOT BE BOUND BY ANY REPRESENTATIONS OR STATEMENTS ON THE PART OF ITS EMPLOYEES OR AGENTS WHETHER ORAL OR IN WRITING OTHER THAN THOSE MADE IN VALID DOCUMENTS DULY SIGNED BY ITS LAWFULLY AUTHORIZED REPRESENTATIVES.
You or Subscriber shall defend and indemnify Insight for, from, and against any losses, damages, liabilities, penalties, costs, and expenses, including, without limitation, reasonable attorney fees, incurred by Insight or its affiliates or agents in connection with any claims or actions arising out of or resulting from (i) Subscriber’s business, including any claims asserted by Users (which include employees); (ii) use or misuse of the Daily Q by You; (iii) Your failure to comply with applicable law, rules or regulations; (iv) Your failure to comply with these ToS; (v) Your willful damage or negligence.
14.1. Contacting Insight. If You wish to contact Insight for matters relating to these ToS, please contact your Insight representative or write, call or email us as set forth below:
Insight Global Headquarters
6820 S. Harl Ave.
Tempe, AZ 85283
Attn: Legal Department
15.1. This Agreement, as well as any additional terms incorporated by reference, represents the complete agreement between You and Insight concerning use of the Daily Q, and replaces all previous agreements, memoranda, discussions or negotiations. Any different or additional terms and conditions are considered material alterations, are expressly rejected, and will not be binding upon Insight.
15.2. If any part of these ToS is, for any reason, found to be invalid, illegal, or unenforceable, all other parts will remain in effect. This Agreement, as may be amended in the future by Insight, can be found on the Daily Q. The revised terms will become effective and apply to You within thirty (30) days from posting of the revised terms unless a shorter notice period is provided directly to You. A delay or failure to exercise or partially exercise any right hereunder does not operate as a waiver, nor will it preclude future exercise of that right or permit or sanction any subsequent breach of any term or condition.
15.3. Insight will not be liable for any failure or delay due to circumstances beyond its reasonable control, including but not limited to acts of nature, acts of government in either its sovereign or contractual capacity, national emergencies, acts of terrorism, transportation delays, labor disturbances, epidemics, work stoppages or loss of electrical power; loss of telecommunications or similar infrastructure.
15.4. No provisions of these ToS are intended or shall be construed to confer upon or give to any person or entity other than Insight and User any rights, remedies or other benefits.
15.5. This Agreement shall be governed by the laws of the State of Arizona excluding those laws that direct the application of the laws of another jurisdiction. The application to these ToS of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are expressly excluded. Any legal action or proceeding relating to these ToS shall be instituted in a state or federal court in Maricopa County, Arizona, and each party hereby submits to the personal jurisdiction of such courts and waives any defense related to venue or inconvenient forum.