TERMS OF SERVICE
Effective: October 2018
The following sets forth a summary of our products and the terms and conditions on which Itemize offers its products and on which users agree to use them. In these Terms of Service, we refer to Itemize Corp., a Delaware corporation, as “Itemize,” “we,” “us” or “our” and we refer to a subscriber to our products as “you” or “user.”
Eligibility of Users
You must be of legal age to enter into a binding contract in the place where you live or work.
You must live or work in a jurisdiction in which it is not illegal for Itemize to provide its products.
If you are acting on behalf of a company or other entity, you must be authorized to act on behalf of the entity and to bind it to this contract.
You may not use Itemize products that are designed for individual use if you are a professional providing accounting, bookkeeping or similar services to unrelated third persons. We offer other products designed for such professionals.
Subscription Based Software
Itemize utilizes its proprietary software and other technology to extract and store the information contained in digital and conforming paper purchase documents, such as receipts, bills, invoices, hotel folios, purchase orders, shipping notices and reservations relating to the purchase of goods and services (“purchase documents”). Conforming purchase documents are those that meet the criteria set forth in Schedule A to these Terms of Service, as in effect from time to time.
Itemize also manually processes non-conforming paper and digital purchase documents to extract and store the relevant information that cannot be extracted automatically by its technology. As a result, Itemize provides users with a comprehensive solution to their information needs relating to purchase documents.
Itemize products allow users to obtain reports and data sets of the extracted information in the formats they request, to integrate the extracted information with their accounting software, to match the extracted information with their bank and credit card transactions and to incorporate the extracted information into their expense management, accounts payable or other information management systems. We also provide users with marketing materials about related tools and products from time to time.
Itemize does not process documents relating to investment transactions such as the purchase or sale of debt, equity or other securities, including securities purchase orders and confirmations, or documents relating to peer-to-peer lending or other loan or banking transactions. None of these documents is a “purchase document” for purposes of these Terms of Service.
Proprietary Rights of Itemize
The technology, trade secrets, know-how and other intellectual property that Itemize uses to provide its products is proprietary. It is owned exclusively by Itemize (or its Licensors) and protected by applicable law. By establishing an Itemize account or subscribing for or using the Itemize products, you do not acquire any ownership or other interest of any kind in any of this property. However, you are granted a limited, non-exclusive, non-transferable, non-sublicensable and terminable license to use the intellectual property solely in connection with your use of Itemize products in accordance with these Terms of Service and the particular terms and conditions applicable to the product for which you have subscribed. This license automatically terminates when you or we terminate your Itemize account for any reason.
Your Use of Our Products
You may only use Itemize products in strict compliance with the terms and conditions set forth in these Terms of Service and the particular terms and conditions applicable to the product for which you have subscribed. In addition, you must use Itemize products in accordance with all laws, rules and regulations of any governmental entity that are applicable to you. You are solely responsible for all activities in and transmissions to and from your Itemize account. Itemize shall have no responsibility or liability for any such activity or transmission.
You are solely responsible for the secrecy and for maintaining the confidentiality of your user ID and password. You shall immediately notify Itemize if you become aware of any unauthorized use of your password or Itemize account. Itemize is not be responsible or liable if you are unable to locate or reset a password.
You may not upload to your account any document that contains personally identifiable or sensitive information pertaining to you or any other person, such as a driver’s license, passport, social security card, birth certificate, a personal check, a bank or credit card statement or other financial record that contains the bank account name or account number, full credit or debit card number, card expiration date, card verification value, or other personally sensitive information, unless all personally identifiable and sensitive information is first deleted or redacted from the document. Itemize may delete any information described in this paragraph in its sole discretion, but we shall have no responsibility or liability if we fail to do so.
You may not upload to your Itemize account any information relating to your health, medical condition or care, or the health, medical condition or care of anyone else. However, you may upload to your account purchase documents provided by your pharmacy and health care providers if no individual can be identified on the document. By uploading such documents, you expressly waive any privacy or other protections afforded under the US Health Insurance Portability and Accountability Act.
You have the right at any time to change or delete any information contained in your account by logging into your account and following the appropriate prompts provided.
You may not, or allow any other person to, upload to your account any information that:
- misappropriates, violates or infringes any patent, trademark, copyright or other intellectual or other property right of any third person;
- violates, or encourages any conduct that would violate, any applicable law, rule or regulation, encourages illegal or harmful activities or that could give rise to civil liability;
- is violent or threatens or encourages violence or conduct that could be threatening to any person;
- is defamatory, disparaging, abusive or harassing of any person or fraudulent, misleading or deceptive, whether or not the information is legally actionable; or
- is vulgar, obscene or pornographic.
Itemize may delete from your account any information described in this paragraph in its sole discretion, but we shall have no responsibility or liability if we fail to do so.
Furthermore, you may not take or engage in, or permit any other person to take or engage in, any action or conduct that does, attempts to or allows you or anyone else to:
- decipher, decompile, disassemble or reverse engineer the Itemize system or any of our products, or any portion of them;
- probe, scan or test the vulnerability of any Itemize system or network or breach or otherwise compromise any of our security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Itemize to protect Itemize products or information stored by Itemize, whether by sending a worm, “trap door,” “back door,” “trojan horse,” bug or otherwise;
- access or search Itemize products, or the information stored by Itemize, through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and search engines provided by Itemize or web browsers generally available to the public;
- interfere with any other user’s access to our products, whether by sending a virus, overloading, flooding, spamming or mail-bombing, or otherwise;
- access the account or information of any other user of Itemize products; or
- reproduce, copy, sell, resell, assign, sublicense, create any derivative work or otherwise commercially exploit any of the Itemize products, unless expressly authorized by the terms and conditions applicable to the product for which you have subscribed.
You may not remove, alter, modify or obscure any element, part or feature of any product identification, trademark, service mark, logo or legal notice included in the Itemize products or used by Itemize to market, promote or provide its products. You may not use any Itemize technology, know-how, trade secret or other intellectual property, including any trademark, service mark or logo, for any purpose other than in connection with your use of the Itemize products in compliance with these Terms of Service.
The following paragraphs describe the several products we offer and summarize the material terms and conditions applicable to these products.
Itemize provides its products under various plans that are in effect from time to time (“Plans”). You can select a particular plan when you establish an Itemize account and subscribe online for the product you want, or enter into a Purchase Order for the product. The Plans allow users to select the type and number of purchase documents to be processed under the Plan, the period, monthly or annually, covered by the Plan and the applicable fees.
Itemize Expense – Itemize Expense is designed for use by individuals and micro businesses that employ fewer than five (5) people.
Itemize Expense allows a user to upload to its Itemize account receipts and obtain reports and data sets of the extracted information in the formats they request, to integrate the extracted information with their accounting software and to match the extracted information with their bank and credit card transactions. For instance, a user may obtain a report showing information from receipts on a particular date or during a range of dates; information from receipts issued by a particular merchant of class of merchants, such as restaurants, airlines, etc.; and information about taxes paid. Itemize Expense also permits a user to generate a report showing whether any particular expense is reimbursable. Itemize Expense is primarily designed for the extraction and processing of information from purchase documents that are receipts, but it does permit a user to upload a limited number of invoices, depending on the Plan selected.
You may subscribe for Itemize Expense by logging on at https://app.itemize.com/ and following the prompts provided, or by downloading the Itemize iOS App or Android App by going to the iTunes App Store or to Google Play.
An Itemize transaction matching feature that permits a user to match the financial information extracted from the purchase documents uploaded to its Itemize Expense account to a transaction recorded in a specified credit card or commercial bank account. Itemize has contracted with Plaid Technology, Inc. (“Plaid”) to provide certain services to support the Itemize transaction matching service. By subscribing to the transaction matching service, you automatically grant Plaid the right, power and authority (acting on your behalf and not on behalf of Itemize) to access and transmit your financial data as reasonably necessary for Plaid to provide its services.
If you terminate the transaction matching feature, Itemize will cease obtaining your financial data from Plaid, but Plaid may be able to continue to access your bank account and obtain your financial data even after you terminate your Itemize account unless you change the passcode to your financial institution account.
An Itemize Expense subscriber may also subscribe for an accounting integration feature that permits the user to integrate its Itemize Expense account with its accounting software and transfer financial data Itemize extracts from the user’s purchase documents to the user’s accounting records. However, Itemize is not an accounting service. This feature allows integration only with certain accounting software. Before a user attempts to integrate its Itemize account with a particular accounting software, or attempts to change the accounting software with which its Itemize account is integrated, the user should verify with Itemize at www.itemize.com that the accounting software is available for integration with its Itemize account. A user may generate reports, and export them to Microsoft Excel, QuickBooks, Sage, and Xero.
Fees for Itemize Expense are generally payable in advance upon subscription and cover the monthly or annual period provided for in the Plan for which you have subscribed. There is no limit to the number of purchase documents you may upload to your account, subject to a “fair use” limit of 200 purchase documents per month for any monthly subscription and 2,400 purchase documents per year for any annual subscription. Fees are not refundable if your Itemize account is terminated for any reason during the period covered by the Plan.
Itemize Retriever— Itemize Retriever is designed for use by small and medium sized businesses that employ more than five and fewer than 500 employees or consultants.
Itemize Retriever allows a user to upload automatically purchase documents to its Itemize account through the Itemize Retriever portal which you may access at https://portal.itemize.com. Itemize Retriever is primarily designed to process purchase documents that are invoices, but also processes receipts.
Itemize Retriever users may upload their purchase documents through the Retriever portal by connecting their Google Drive and/or DropBox folders to the portal or by establishing a digital connection from its Microsoft Office 365 and/or Google email accounts to the portal. Itemize Retriever allows users to establish a separate, custom email address to which it can send purchase documents directly to the portal for processing. The portal will automatically retrieve the purchase documents from these locations and forward them for processing and information extraction.
Itemize Retriever users may generate the same reports as users of Itemize Expense, except a report as to whether a particular expense is reimbursable, and may export the extracted data to Microsoft Excel, Google Sheets and Accounting Software Solutions. Commencing in the first quarter of 2019, Itemize Retriever will also allow users to access the same transaction matching services that are available to users of Itemize Expense.
You may subscribe for Itemize Retriever by visiting https://portal.itemize.com and following the prompts provided.
You may subscribe for Itemize Retriever on a monthly or annual basis for a specified number of purchase documents. Fees for Itemize Retriever are generally payable in advance upon subscription and cover the monthly or annual period and number of purchase documents provided for in the Plan for which you have subscribed. Fees are not refundable if your Itemize account is terminated for any reason during the period covered by the Plan.
You may elect a payment option that authorizes Itemize to process purchase documents in excess of the specified number during the subscription period. If you elect this option, you will be billed on the next renewal date of your subscription or immediately upon termination of your account for all purchase documents that we have processed in excess of the specified number.
Itemize Team— An Itemize Expense user may purchase additional seats to their account for employees and consultants who are authorized to upload and process purchase documents through its Itemize Expense account (a “Team”).
You may subscribe for Itemize Team by causing your Team administrator to log on to https://app.itemize.com, provide an email address and establish a password. Upon opening a Team account, the Team administrator must provide to Itemize his or her name and email address, designate the number of employees or consultants who will become Team members on the account and authorize Itemize to open an account for each designated person.
Team members are invited to open an account with Itemize by their Team administrator. To open an account, Team members must respond as provided in the invitation. By establishing an account, Team members automatically agree to these Terms of Service. Team members may only upload to their purchase documents relating to his or her own purchase of goods and services. A Team member may not submit any purchase document of any other individual.
Team members may access their accounts at any time but may not terminate their accounts. If a Team member wishes to change or delete any information in his or her account, an appropriate request must be submitted to the user’s Team administrator in accordance with procedures established by the administrator. No Team member will have access to the accounts of any other member of the same Team. The Team administrator will at all times have access to the accounts of all Team members and will be entitled to deal with the accounts of Team members in accordance with any rights and procedures the administrator establishes.
The user pays, in advance, a non-refundable, periodic fee for each Team member it designates. A user may increase or decrease the number of Team members at any time by logging on to its account and following the appropriate prompts. An increase in the designated number of Team members will require the payment of additional periodic fees. A reduction in the designated number will not entitle the user to any refund within its periodic billing cycle.
Subscriptions for Team renew automatically from period to period, according to the user’s periodic billing cycle, until terminated by the user or Itemize. A user is responsible for all of the actions of its Team members. Itemize may terminate a Team member’s account, or the user’s Team account, upon any breach by a Team member of these Terms of Service. Upon termination of a Team account, Team members will no longer be able to access their accounts with Itemize. A terminated user will be able to retrieve the information in its Team account for thirty (30) calendar days after termination.
Itemize has no direct, indirect, express or implied responsibility, obligation or liability to any Team member; its only responsibility is to the user that establishes the Team account. In particular, Itemize shall have no responsibility, obligation or liability to a team member as a result of any action or inaction by the Team administrator with respect to the information in the Team member’s account, or otherwise. Team members shall indemnify and hold Itemize (and its stockholders, directors, officers and employees) harmless as and to the same extent that users are obligated to do so under these Terms of Service.
Commencing in the first quarter of 2019, an Itemize Retriever user will also be able to designate a Team of its employees and consultants who are authorized to upload and process purchase documents through it Itemize Retriever account. We will post when the Team feature is available Itemize Retriever users.
Itemize API – Itemize API is designed for use by large corporate and other enterprise users that have internal technology teams capable of developing a connection to the API and that have at least 500 employees or consultants who will utilize this product.
Itemize API allows a user to upload automatically purchase documents to its Itemize account through our API and automatically integrate the information extracted into expense management, accounts payable and other management or enterprise resources systems. Unless otherwise agreed, Itemize API is a “fire and forget” service, which means the image uploaded by the user, and the data extracted from the image, are not stored long-term on Itemize servers. Itemize API regularly deletes images and data sets older than 90 days.
Fees for Itemize API are generally based on the type and volume of purchase documents processed and are payable within thirty (30) days after the calendar month in which the purchase documents are processed, subject to a platform fee or minimum monthly guarantee.
You may subscribe for Enterprise API by visiting http://www.itemize.com/API and requesting to speak to an API sales representative.
General Terms Applicable to All Products
The Plans under which Itemize products are offered, the features of the Plans and the associated fees may change from time to time. The Plans may include terms and conditions that are different from those included in these Terms of Service and may provide for more limited or additional rights and obligations for users. If there is a manifest conflict between these Terms of Service and any Plan, or between these Terms of Service and any Purchase Order, the Plan or the Purchase Order, as applicable, will govern and control your use of Itemize products. Itemize will post changes on its website in advance of the effectiveness of a change in any Plan. You will be deemed to have agreed to, and will be bound by, any change if you continue to use Itemize products covered by the Plan for which you have subscribed after a change to the Plan becomes effective.
You may not terminate your account with Itemize at any time during the term specified in your Purchase Order. If a month-to-month subscription exists, you may request to end your subscription effective on your next renewal date, via your User Settings page or by contacting email@example.com.
Itemize may terminate your account at any time for any reason in its discretion. Itemize will terminate your account immediately if it determines that you have violated these Terms of Service, if you use your account in violation of any applicable law or if Itemize is required to do so by applicable law.
Upon any termination of your account, you must cease all use of our products at the end of your current subscription term.
Itemize will no longer bill you after any termination of your account; however, you will be responsible for any fees or other charges you have incurred through the date of termination. You will not be entitled to a refund of any amount you have paid us if the termination occurs in the middle of a monthly or annual payment period.
Notwithstanding any termination of your Itemize account, all of your obligations under these Terms of Service shall survive and remain unaffected, except that you will no longer be obligated for any further fees or other charges that have not accrued as of the date of termination.
While we believe that we take reasonable and customary measures to ensure that information stored in your account is reliable for its intended use, we do not provide any assurances as to the accuracy, correctness or completeness of any data, images, documents or other information (referred to collectively as “information”) that we process from the documents you upload to your Itemize account or that is contained in any report or other document we provide to you. We also disclaim other representations and warranties about the Itemize products as set forth in the section below entitled “Disclaimer of Warranties; Limitations on Liability.”
We may sub-contract or delegate the performance of certain functions to third persons at our sole discretion. Itemize has entered into a contract with a nationally recognized third-party provider of cloud-based storage products and forwards the information that you upload to your Itemize account for storage under this contract. Itemize also retains third-party providers to perform certain manual processing services with respect to purchase documents.
In the event of any manifest conflict between the terms of your Purchase Order and these Terms of Service, the provisions of the Purchase Order shall control.
You must keep confidential all of our “Confidential Information” (as defined later in this paragraph). You may not use our Confidential Information for your own benefit except as expressly permitted by these Terms of Service. You may not disclose any of our Confidential Information to any third Person (other than your employees, agents or representatives (“Representatives”) who have a need to know such Confidential Information in connection with the performance of their duties or responsibilities to you and who are informed of the confidential nature thereof) without our express prior written consent, except as expressly (i) permitted by these Terms of Service, or (ii) required by applicable law, subpoena, interrogatory, request for information or documents, deposition, civil investigative demand or other governmental or self-regulatory request, provided that with respect to this clause (ii), you shall not make any such disclosure without first notifying Itemize, unless such notification is not allowed by law, allowing us a reasonable opportunity to seek injunctive relief from (or a protective order with respect to) the obligation to make such disclosure, and fully cooperating with Itemize, at our expense, in any effort by us to seek any such relief. “Confidential Information” means and includes any confidential, non-public or proprietary information (whether received before or after your acceptance of these Terms of Service and whether transmitted to you orally or in writing (including by email) or stored electronically) relating to our business, operations, financial condition or prospects, products and products and the Intellectual Property. “Intellectual Property” includes: all know-how, trade secrets, ideas, inventions, discoveries, innovations, technology, designs, developments, devices, computer programs, software, object and source code, algorithms, applications, tools, methods, processes, report formats, graphics, images, interactive design techniques and all documentation with respect to any of the foregoing (whether or not patented or patentable or reduced to practice), and all enhancements and improvements of any thereof, and all patents and patent applications related thereto, trademarks, copyrights and all other intellectual property or other proprietary rights of any kind or nature whatsoever; provided, however, that Confidential Information does not include (i) any information that is generally available to the public through no fault of yours or any of your Representatives; (ii) any information that was in your possession prior to its disclosure by Itemize, as evidenced by your contemporaneous written records; or (iii) any information that you receive from a third person that to your knowledge, after reasonable inquiry, is under no obligation or duty of confidentiality or non-disclosure with respect to such Confidential Information. You shall be responsible and liable for any disclosure or use by any of your Representatives of our Confidential Information in violation of this Agreement.
You may not remove, alter, modify or obscure any element, part or feature of any product identification, trademark, service mark, logo or legal notice included in the Itemize products or used by Itemize to market, promote or provide Itemize products. You may not use any Itemize Intellectual Property, including any trademark, service mark or logo, for any purpose other than in connection with your use of the Itemize products in compliance with these Terms of Service and any applicable Purchase Order.
Itemize shall indemnify and hold harmless you and each of your stockholders, directors, officers, employees and agents (“User Indemnified Parties”) from and against any and all third-person claims, demands, actions, suits or other proceedings, or any settlement of any thereof, damages, losses, liabilities, costs or expenses (including attorneys’, accountants’ and other professionals’ fees and expenses) (“Third-Person Claims”) that are sustained, suffered or incurred by, or which may be asserted against, any or all of the User Indemnified Parties by reason, as a result or arising out of or in connection with any infringement of such third person’s intellectual property rights by the products as provided to such user pursuant to this Agreement.
If a Third-Person Claim of infringement for which Itemize may be obligated to indemnify you pursuant to the previous paragraph has been asserted, or in our reasonable opinion is about or likely to be asserted, Itemize may, at its option either: (i) procure for you the right to continue using the product for which you have subscribed; (ii) replace or modify the product so as to eliminate the infringement; (iii) cease providing the product, terminate any associated Purchase Order and refund all pre-paid fees covering future use of the product; or (iv) defend the action on your behalf pursuant to said indemnification obligation.
You shall indemnify and hold harmless Itemize and each of its affiliates and their respective stockholders, members, directors, managers, officers, employees or agents (“Itemize Indemnified Parties”) from and against any and all Third-Person Claims that are sustained, suffered or incurred by, or which may be asserted against, any or all of the Itemize Indemnified Parties by reason, as a result or arising out of or in connection with (i) any action taken or omitted to be taken by a user relating to its use of an Itemize product; (ii) any infringement of such third Person’s intellectual property rights as a result of a user using an Itemize product; (iii) any breach by a user or any other User Indemnified Party of any provision of these Terms of Service or any Purchase Order; or (iv) any Third-Person Claim by a client or customer of yours that is based on, relates to or arises out of the use of an Itemize product by such client or customer or that is based on or relates to these Terms of Service, any Purchase Order or any Plan.
In the event a User Indemnified Party or an Itemize Indemnified Party becomes subject to a Third-Person Claim for which it (the “Indemnified Party”) intends to seek indemnification under this Section, the Indemnified Party shall provide notice to Itemize, or you, as the case may be (the “Indemnifying Party”), as soon as reasonably practicable after the Indemnified Party obtains knowledge of such Third-Person Claim, and in any event within ten (10) business days after it obtains such knowledge, which notice shall describe in reasonable detail the Third-Person Claim and the basis for the Indemnified Party’s right to indemnification under this Section. The Indemnifying Party shall have the right to assume and control the defense and settlement of such Third-Person Claim with counsel of recognized standing of its choice by giving notice to the Indemnified Party as soon as reasonably practicable after receiving the notice of such Third-Person Claim from the Indemnified Party. In the event you are the Indemnifying Party, you may not assume and control the defense and settlement of such Third-Person Claim unless you demonstrate to our satisfaction, in our sole discretion, that you have the financial and other resources necessary to defend effectively such Third-Person Claim and to pay any settlement or judgment that could result therefrom.
The Indemnified Party shall fully cooperate with the Indemnifying Party in connection with the defense of such Third-Person Claim, at the cost and expense of the Indemnifying Party, and shall be entitled to participate in (but not control) such defense with counsel of its choice and at its own sole cost and expense. If the Indemnifying Party assumes the defense of such Third-Person Claim, (i) the Indemnifying Party shall not settle such Third-Person Claim without the express prior written consent of the Indemnified Party, unless the Indemnified Party is released from all liability in connection with such settlement and is not required to admit to any wrong-doing, or consent to any action or inaction, in connection therewith; and (ii) the Indemnified Party shall not settle the Third-Person Claim without the express prior written consent of the Indemnifying Party. If the Indemnifying Party does not assume the defense of such Third-Person Claim, the Indemnified Party shall defend the Third-Person Claim diligently and in good faith with counsel of recognized standing of its choice and shall not settle the Third-Person Claim without the express prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned.
Disclaimer of Warranties; Limitations of Liability
Itemize provides its products on an “as is” and “as available” basis and assumes no responsibility or liability for the availability of its products or the timeliness with which products are provided, except as otherwise expressly provided in these Terms of Service, the applicable Purchase Order or the Plan applicable to the product for which you have subscribed.
Itemize shall in no event be responsible or liable for or as a result of your use or inability to use its products or any information stored by Itemize in your account for any reason, including loss of electric or other power or internet connection, a security breach of your account, governmental intervention or any other matter. Nor are we responsible or liable for the loss, unauthorized use, corruption, accuracy, completeness or correctness of any such information or of any information or report provided to you by Itemize. We are also not responsible or liable for any damage to your computer or other hardware or systems as a result of any download or transfer of information from your account or for any damage, loss, liability, cost or expense you suffer or incur as a result of furnishing to any third person any report or data obtained from our products that is inaccurate, incomplete or incorrect. These limitations of liability apply even if Itemize is negligent.
ITEMIZE DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE ITEMIZE PRODUCTS, INCLUDING ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY OF THE PRODUCTS; THEIR FITNESS FOR ANY PARTICULAR PURPOSE; THAT THE PRODUCTS WILL BE USEFUL FOR, OR MEET THE REQUIREMENTS OR EXPECTATIONS OF, ANY PERSON; THAT THE PRODUCTS WILL BE FREE FROM ERROR OR WILL PRODUCE ACCURATE, COMPLETE OR CORRECT INFORMATION; OR THAT THE USE OF THE PRODUCTS DOES NOT INFRINGE UPON THE INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PERSON.
Itemize licenses software, tools and other intellectual property from third persons (“Licensors”). The licensed intellectual property may be incorporated into our system and/or products. The Licensors do not make, and expressly disclaim, any representation or warranty with respect to such licensed intellectual property or the use of it, or otherwise. As between us and our Licensors, only we have any responsibility to our users under these Terms of Service or any Purchase Order.
No advice or other information you obtain from Itemize about our products or any other matter, whether orally or in writing, constitutes a representation or warranty by Itemize unless it is also expressly set forth in these Terms of Service, in the applicable Purchase Order or in the Plan applicable to the product for which you have subscribed.
IN NO EVENT WILL ITEMIZE BE LIABLE OR RESPONSIBLE FOR ANY EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST REVENUE, LOST PROFITS, OPPORTUNITY COSTS OR THE COST OF SUBSTITUTE OR REPLACEMENT PRODUCTS) OR OTHER SPECIAL DAMAGES OR PUNITIVE DAMAGES FOR OR IN RESPECT OF ANY ACT OR OMISSION IN CONNECTION WITH OR RELATING TO THE PROVISION OF ITEMIZE PRODUCTS, THE FAILURE TO PROVIDE PRODUCTS, ANY ERROR OR OMISSION IN PROVIDING THE PRODUCTS, ANY VIRUSES, TROJAN HORSES, BUGS OR THE LIKE (REGARDLESS OF SOURCE) OR ANY OTHER MATTER WHATSOEVER, WHETHER OR NOT ANY SUCH DAMAGES COULD BE FORESEEN AND WHETHER OR NOT ITEMIZE HAS BEEN WARNED THAT SUCH DAMAGES COULD ARISE. FURTHER, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ITEMIZE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY LOSS OF REVENUES OR PROFITS OF ANY USER AS A RESULT OF SUCH USER’S LOSS OF ANY CLIENT OR CUSTOMER.
The limitations on liability provided in the prior paragraph shall not apply to the indemnification obligations of Itemize under these Terms of Service.
IN THE EVENT OF ANY BREACH BY ITEMIZE OF THESE TERMS OF SERVICE OR ANY PURCHASE ORDER WITH RESPECT TO ANY USER, THE LIABILITY OF ITEMIZE TO SUCH USER FOR ANY SUCH BREACH SHALL BE LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID TO AND RECEIVED BY ITEMIZE FROM SUCH USER IN THE THREE MONTHS PRIOR TO SUCH BREACH. A USER MUST COMMENCE AN ACTION, SUIT OR OTHER PROCEEDING WITH RESPECT TO SUCH BREACH WITHIN ONE YEAR AFTER THE OCCURRENCE OF SUCH BREACH.
Certain Regulatory Matters
You may not use, export, re-export, import or transfer any Itemize product except in full compliance with the laws of the United States. The laws of the United States prohibit the export or re-export of certain products and services into any country embargoed by the United States, or to any person on the list of Specially Designated Nationals of the US Department of the Treasury or the Denied Person’s List or Entity List of the US Department of Commerce.
If you believe that any information Itemize provides to you infringes any of your copyrights, you should immediately notify Itemize Designated Copyright Agent by email at firstname.lastname@example.org (subject line: “Designated Copyright Agent”) or by mail at Itemize Corp., PO Box 3510 New York, New York 10163 (Attention: General Counsel). To be effective, the notice must be physically signed, electronically or manually, by the owner of the copyright claimed to be infringed or by a person authorized to act on THE owner’s behalf and must contain the following information:
- a description of the copyrighted work that you claim has been infringed;
- a description of the location in the Itemize products of the claimed infringing material that is reasonably sufficient to enable Itemize to identify and locate the material;
- the address, telephone number and email address at which Itemize can contact you;
- a statement that you believe in good faith that the use of the material by Itemize has not been authorized by the owner of the copyright, its agent or applicable law; and
- a statement under the penalty of perjury that the information provided in the notice is accurate and complete and that you are either the owner of the copyright that is alleged to be infringed or are duly authorized to act by the copyright owner, its agent or applicable law.
Other Miscellaneous Terms of Service
Itemize may amend or otherwise modify any provision of these Terms of Service at any time and from time to time in its sole discretion. Itemize will post on its website any amendment or modification and it shall become effective immediately, provided that Itemize will use reasonable commercial efforts to provide at least five business days’ prior notice of any material amendment or modification either by email to user’s current email on record, or by posting the notice on its website. By continuing to use Itemize products after any amendment or other modification becomes effective, you automatically accept and agree to be bound by the amendment or modification and it becomes part of the contract between you and Itemize.
You may notify Itemize for any of the following reasons at email@example.com or by mail at PO Box 3510, New York, New York 10163 (to the attention of General Counsel):
- to notify Itemize of any unauthorized use of your password or Itemize account;
- to ask any questions about these Terms of Service;
- to provide any comment or suggestion concerning your account or Itemize products, generally; or
- to lodge a complaint about the implementation of these Terms of Service with respect to your Itemize account.
Any such notice shall include the exact name and postal or email address of an individual who is authorized to act on your behalf.
These Terms of Service, and any applicable Purchase Order or Plan, shall be governed by, interpreted and enforced in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely in the State of New York, without reference to the principles of conflict of laws of the State of New York. Any dispute that arises under or relates these Terms of Service, such Purchase Order or any Plan (or the breach or alleged breach of them) or any Itemize product shall be brought before a State or Federal court located in the City, County and State of New York. You irrevocably and unconditionally agree and consent to the exclusive jurisdiction of any such court for the purpose of resolving any such dispute and agree that you will not in any forum object to such jurisdiction on the grounds that such court is an inconvenient forum, or that there is a more convenient forum, for the resolution of such dispute. YOU FURTHER AGREE THAT YOU WILL NOT REQUEST, AND YOU IRREVOCABLY AND UNCONDITIONALLY WAIVE, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING TO RESOLVE SUCH DISPUTE.
You recognize and agree that any breach by you or any of your Representatives of any provision of these Terms of Service, any Purchase Order or any Plan will result in irreparable harm to us that may not adequately be remedied by the payment of monetary damages. Therefore, you agree that in the event of the breach or threatened breach by you or any of your Representatives of any provision of these Terms of Service, any Purchase Order or any Plan, we shall be entitled to seek specific performance and/or preliminary and permanent injunctive and other appropriate equitable relief to remedy such breach or prevent such threatened breach without posting any bond or other security and without proving that monetary damages would be an inadequate remedy. The equitable relief contemplated by this paragraph shall be in addition to, and not in lieu of, any or all other remedies available to us, including the remedy of monetary damages, all of which remedies shall be cumulative and not exclusive.
In any action, suit or other proceeding to interpret or enforce these Terms of Service, any Purchase Order or any Plan, the prevailing party shall be entitled to recover its costs and expenses (including reasonable fees and expenses of counsel) in connection with such action, suit or other proceeding and enforcing any judgment or order obtained.
You agree that you will not commence or participate in any claim or claims brought as any type of class, coordinated or aggregated action, suit or other proceeding, or receive or retain, and you irrevocably and unconditionally waive any and all right to, any monetary or other benefit as a result of any such action, suit or proceeding.
These Terms of Service and the provisions of any Purchase Order or Plan shall inure to the benefit of you and us and our respective successors and permitted assigns. There are no third-party beneficiaries of these Terms of Service, any Purchase Order or any Plan, other our Licensors and the persons we have each agreed to indemnify under these Terms of Service and their respective successors, assigns, estates, heirs, executors and personal representatives. No client or customer of any user is intended to be a third-party beneficiary of these Terms of Service, any Purchase Order or any Plan.
Itemize shall not be deemed to have breached these Terms of Service, any Purchase Order or any Plan by reason of delay or failure in performance resulting from acts beyond its reasonable control, including any natural disaster, act of war, insurrection, terrorism, riot, civil commotion, order of any government or governmental authority or any communication line (including the internet) or other power failure, provided that we will use reasonable commercial efforts to minimize the effect of any force majeure.
You may not assign or transfer any rights under these Terms of Service, any Purchase Order or any Plan without our express prior written consent, and any such assignment is null and void. We may assign our agreement with you in connection with a merger, consolidation or other business combination to which we are a party or by which our ownership is affected or in connection with the sale of all or substantially all of our business and assets.
The headings of the Sections in these Terms of Service are inserted for convenience of reference only and shall not alter or affect the meaning or interpretation of any provision of these Terms of Service. Any reference herein to a “person” shall include natural persons, corporations, limited liability companies, limited liability partnerships, general and limited partnerships, companies, associations, trusts and other entities of any kind or nature. As used in these Terms of Service, the words “including” and “includes” shall mean “including, without limitation,” or “includes, without limitation,” as the case may be, whether or not so expressed. The use of the singular form shall include the plural, and vice versa; the use of a masculine, feminine or neuter pronoun shall refer to any other appropriate pronoun, as the context requires; the word “any” means one or more; and the word “or” shall be read in the conjunctive and the disjunctive. All references in these Terms of Service, any Purchase Order or any Plan to “dollars” or “$” shall mean and refer to US dollars.
These Terms of Service and any Purchase Order express our mutual intent. If any provision of these Terms of Service or any Purchase Order is deemed to be ambiguous, such provision shall be enforced in accordance with our mutual intent and shall not be construed against either of us because one of us or one of our Representatives drafted such provision, nor shall any other principle of “strict construction” apply to the interpretation or enforcement of any provision of these Terms of Service or any Purchase Order.