INTELLO SERVICE AGREEMENT
Admin Account means the account that will have the authority to create and manage Authorized User (as defined below) accounts and that will be Intello’s point of contact for billing.
Client Usage Data means all information and usage data that is collected by the Services relating to Client or any of Client’s Authorized Users. Such information can be automatically collected through Intello APIs and the Intello Browser Extension, or it can be directly added, created, uploaded, submitted, distributed, or posted to the Services by Client or any of Client’s Authorized Users.
Documentation means any user guide, help information and other documentation and information regarding the Services that is delivered by Intello to Client in electronic or other form, if any, including any updates provided by Intello from time to time.
Intello APIs means any application programming interface offered to Client by Intello as part of the Services that integrates with third party software to provide Intello with Client Usage Data.
Intello Browser Extension means any browser extension offered to Client by Intello as part of the Services that provides Intello with Client Usage Data.
Platform means the platform provided by Intello to Client as part of the Services which enables Client and its Authorized Users to understand and track the computer and software usage of Authorized Users and Client’s employees, contractors, and other personnel.
Services means the Platform, Intello APIs, the Intello Browser Extension, the Documentation and any other services provided by Intello hereunder.
2.1 Access and Account Setup. As part of the implementation process, Client will identify an administrative user name and password that will be used with Intello APIs to set up Client’s Admin Account. Client may use the Admin Account to create subaccounts for its employee users (each with unique login IDs and password) (each, an Authorized User). Client shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Client. Intello reserves the right to refuse registration of, or to cancel, login IDs that violate the terms and conditions set forth in this Agreement. Client agrees to notify Intello immediately upon learning of any unauthorized use of Client’s account or any other breach of security. From time to time, Intello’s personnel may log in to the Services under Client’s Admin Account in order to maintain or improve the Services, including to provide Client assistance with technical or billing issues. Client hereby acknowledges and consents to such access.
2.2 Platform. Subject to the terms and conditions of this Agreement, Intello will use commercially reasonable efforts to provide the Services and implement and operate the Platform for Client. Subject to the terms and conditions of this Agreement, Intello grants Client a non-exclusive license to use and access the Services solely for Client’s internal business purposes. Client may use the Documentation solely in connection with the Services.
2.3 Modifications. Intello reserves the right to modify or discontinue the Services (in whole or in part) at any time without notice to Client.
3. OWNERSHIP; USE OF SERVICES.
3.1 Ownership; Intello License Grant. Intello shall be the owner of all Client Usage Data. Subject to the terms and conditions of this Agreement, including Client’s continuous and timely payment of fees, Intello grants Client a limited, nonexclusive, non-sublicensable, nontransferable license during the term to access and use the Services, including the Client Usage Data, solely for Client’s internal business purposes. All rights not expressly granted to Client are reserved by Intello and its licensors.
3.2 Client License Grant. Client hereby grants Intello a worldwide, non-exclusive, royalty-free license to access its computing systems and software to enable Intello to provide the Services to Client.
3.3 Rules and Acknowledgments. Client acknowledges that use of the Services is at Client’s own risk, and Client will be solely responsible for any damage or loss to Client, any Authorized User, or any other party resulting therefrom. Intello does not guarantee that the Services are or will continue to be accurate, and Client acknowledges and agrees that Intello is not responsible for, and will have no liability in regards to, any disputes or interactions between Client and any user of the Services, any Authorized User or any other third party, and Intello shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection therewith, including without limitation for any use of or reliance on the Services. Client represents and warrants to Intello that Client has secured all necessary rights as may be necessary to permit Intello to provide the Services as contemplated by this Agreement without infringement, misappropriation, or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, or any other intellectual property or proprietary rights (INTELLECTUAL PROPERTY RIGHTS), or any contract rights, applicable laws, rules, or regulations.
4.1 Restrictions. Except as expressly permitted in this Agreement, Client shall not directly or indirectly (a) use any of Intello’s Confidential Information (defined below) or the Documentation to create any service, software, documentation or data that is similar to any aspect of the Services or Platform, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform of Services, or the underlying ideas, algorithms or trade secrets therein, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services or Platform in any service bureau arrangement or otherwise for the benefit of any third party, (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Platform or Services, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts. Client may not access or use (or permit a third party to access or use) the Services for purposes of monitoring the availability, performance or functionality of the Services or form any other benchmarking or competitive purposes.
4.2 Privacy and Data Protection. Client will not disclose any PII to Intello in the course of using the Services unless: (a) disclosure of such PII is necessary for Client’s exploitation of the Services (e.g., name, email address, location, department or other information required for sign-up of an account on the Platform), (b) such PII is collected by Client and disclosed to Intello pursuant to and in accordance with Client’s applicable privacy and employee policies, (c) Client’s disclosure of such PII to Intello and Intello’s retention and use of such PII by Intello as contemplated under this Agreement does not and will not violate any applicable Client privacy or employee policy or any applicable laws, and (d) such PII does not include any information related to an individual under the age of thirteen or any personal health information or personal financial information. Intello will have no obligations or liability with respect to any PII except as expressly set forth in this Agreement. Client agrees that any PII accepted by Intello is accepted on behalf of Client, and Client will be responsible for any and all communications with individuals or other third parties arising from such retention and use.
5. PROPRIETARY RIGHTS.
5.1 Services and Platform. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Intello (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services and Platform, all copies, modifications and derivative works thereof, and all Intello trademarks, names, logos, all rights to patent, copyright, trade secret and other proprietary or intellectual property rights.
5.2 Feedback. Client grants Intello an exclusive, fully paid-up, royalty-free, worldwide, perpetual, irrevocable, sublicensable (through multiple layers), assignable, and transferable license to implement, use, modify, commercially exploit, and/or incorporate, without any compensation or notice to Client, any and all suggestions, recommendations or requests for correction, change, enhancement, or modification to the Platform or Service, and any other feedback, information and reports provided to Intello hereunder (collectively, Feedback). Client agrees to assist Intello, at Intello’s expense, in obtaining intellectual property protection for such Feedback, as Intello may reasonably request.
5.3 Aggregate Data. Client agrees that Intello is free to disclose aggregate measures of usage and performance based on Client Usage Data, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services, including that it could have acquired performing the same or similar services for another client. Client further agrees that Intello shall have the right (a) to create anonymized compilations and analyses of any Client Usage Data (Aggregate Data), and (b) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (Analyses). Intello shall have exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other clients and prospective clients of the Services; provided, however, that Intello shall not distribute Aggregate Data and Analyses in a manner that is identifiable as originating from Client without Client’s written consent.
Except as expressly provided in this Agreement, Client shall not possess, access, use or disclose any of Intello’s Confidential Information except to perform its obligations or exercise its rights under the Agreement. Client shall use reasonable care to protect Intello’s Confidential Information, but in no event less care than it employs in protecting its own Confidential Information. Client shall be responsible for any breach of confidentiality by its employees, contractors and any Authorized Users. Promptly after any termination of this Agreement (or at Intello’s request at any other time), Client shall return or destroy all of Intello’s tangible Confidential Information. The restrictions herein will not prevent Client from complying with any law, regulation, court order or other legal requirement that purports to compel disclosure of any Confidential Information; provided that Client promptly notifies Intello upon learning of any such legal requirement, and cooperates with Intello in the exercise of its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency. Confidential Information means all financial, business or technical information that is disclosed by or for Intello in relation to this Agreement (including all copies and derivatives thereof) and which is marked or otherwise identified as proprietary or confidential at the time of disclosure, or which by its nature would be understood by a reasonable person to be proprietary or confidential.
7.1 Billing. You will be billed for all fees and expenses in the amounts and at the times specified in the Fee Schedule or as otherwise provided in this Agreement.
7.2 Upgrades. If you choose at any time to upgrade your account or increase the number of Authorized Users, you will automatically be charged the new rate on your next billing cycle, the first billing cycle of which will be pro-rated to match your existing billing cycle.
7.3 Payment Processor. Intello uses third-party payment processor services provided by Stripe, Inc. (the Payment Processor) to charge you through your Admin Account for fees or expenses associated with your use of the Services. The processing of such payments will be subject to the terms and conditions and privacy policies of the Payment Processor in addition to the terms of this Agreement. Intello is not responsible for error by the Payment Processor. By subscribing, you agree to pay Intello, through the Payment Processor, all charges at the prices then in effect for any use of the Services in accordance with this Agreement, and you authorize Intello, through the Payment Processor, to charge your chosen payment provider (your Payment Method). You agree to make payment using that selected Payment Method. Intello reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
7.4 Current Information. You must provide current, complete and accurate information for your billing account. You must promptly update all information to keep your billing account current, complete and accurate, and you must promptly notify us or our Payment Processor if your payment method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be made in your Admin Account settings. If you fail to provide any of the foregoing information, you agree that we may continue charging you for your use of the Services unless you have terminated this Agreement as set forth below.
7.5 Free Trials. Any free trial or other promotion that provides access to the Services must be used within the specified time of the trial. You must stop using the Services before the end of the trial period in order to avoid being charged for the Services. If you cancel prior to the end of the trial period and are inadvertently charged, please contact us at [email protected]
8. WARRANTY AND DISCLAIMERS.
8.1 Warranty. Client represents and warrants that (a) it has full power and authority, and has obtained any and all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder, (b) this Agreement is legally binding upon it and enforceable in accordance with its terms, and (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
8.2 Disclaimers.THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. INTELLO DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, INTELLO HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELIABILITY, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
Client shall defend, indemnify, and hold harmless Intello, its affiliates and each of its and their respective employees, contractors, directors, suppliers and representatives from all liabilities, costs, claims, damages, and expenses, including reasonable attorneys’ fees, that arise from or relate to Client’s use or misuse of, or access to, the Services, violation of this Agreement, or infringement by Client, any Authorized User, or any third party Client allows to access the Services of any intellectual property or other right of any person or entity. Intello reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Client, in which event Client will assist and cooperate with Intello in asserting any available defenses.
10. LIMITATION OF LIABILITY.
IN NO EVENT SHALL INTELLO BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INTERRUPTION OF USE, LOSS OR INACCURACY OF DATA, LOSS OF OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, (C) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO INTELLO HEREUNDER DURING THE PREVIOUS SIX (6) MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
11. TERM AND TERMINATION.
You may terminate your subscription (and this Agreement) at any time. To cancel your subscription, you must log in to your Admin Account. Any Client Usage Data obtained from you may be immediately deleted upon cancellation. This information cannot be recovered once your account is cancelled. Intello does not accept any liability for loss of such information due to account cancellation. If you cancel the Services before the end of your current monthly payment cycle, your cancellation will take effect upon the end of the monthly payment cycle and you will not be charged again, but you will not receive any refunds for amounts already paid for the then-current subscription period. Intello, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Services for any reason at any time. Sections 1, 3, 4, 5, 6, 7, 8, 9, 11, and 12 shall survive any termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement.
12.2 Modification and Waiver. Intello reserves the right, at its sole discretion, to modify or replace the terms of this Agreement, in whole or in part, at any time. Change notices may be communicated by postings on the Intello website or by electronic mail. In any case, you should periodically check this Agreement for changes. Your continued use of the Services following notice of changes constitutes your acceptance of those changes. No change, consent or waiver under this Agreement will be binding on Intello unless made in writing and physically signed by an authorized representative of Intello. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
12.3 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.4 Governing Law; Arbitration. This Agreement shall be governed by and construed under the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration, in the English language, in accordance with the rules and procedures of the Judicial Arbitration and Mediation Service, Inc., and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in any court of competent jurisdiction. The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Client hereby consents to arbitration in the State of New York in the county of New York.
12.5 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3, 4, 5 or 6, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
12.6 Notices. Except as otherwise provided herein, all notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
12.7 Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
12.8 Publicity. Client hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of Intello’s marketing and promotional efforts. You can email [email protected] at any time to revoke the foregoing consent, and Intello shall use reasonable efforts to remove Client’s name and logo in a reasonable period of time.
12.9 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Client without Intello’s prior written consent, not to be unreasonably withheld. Intello may assign or transfer this Agreement in whole or in part. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
12.10 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.