REV: Feb 22 2023
IMPORTANT – READ CAREFULLY
INTELLICENE INC. OR ANY OF ITS AFFILIATES ("INTELLICENE") IS WILLING TO PROVIDE PRODUCTS AND SERVICES TO CUSTOMER IN ACCORDANCE WITH AND SUBJECT TO YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT (“AGREEMENT”). SUBJECT TO YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PRODUCTS AND SERVICES SPECIFIED IN AN ORDER(S) SUBMITTED BY YOU (OR INTELLICENE’S AUTHORIZED RESELLER ON YOUR BEHALF) AND ACCEPTED BY INTELLICENE, SHALL BE PROVIDED AS SPECIFIED IN THE ORDER(S). IF THIS AGREEMENT IS BEING ENTERED INTO ON BEHALF OF AN ORGANIZATION, ALL REFERENCES TO “CUSTOMER’, “YOU” OR “YOUR” IN THIS AGREEMENT SHALL MEAN THE LEGAL ENTITY REPRESENTED BY THE INDIVIDUAL INDICATING ASSENT TO THE TERMS AND CONDITION OF THIS AGREEMENT. FURTHERMORE, THE TERM “CUSTOMER’, “YOU” OR “YOUR” IN THIS AGREEMENT SHALL MEAN INTELLICENE’S CUSTOMER AND/OR THE END-USER OF INTELLICENE’ PRODUCTS OR SERVICES, AS THE CASE MAY BE.
YOU ARE CONCLUDING A LEGAL BINDING AGREEMENT. BY CLICKING “ACCEPT” OR “I ACCEPT” OR “OK” OR “SUBMIT” OR “DOWNLOAD” OR “INSTALL” OR “SAVE” OR “LOGIN” (OR OTHER EQUIVALENTS), YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT, AGREE TO BE BOUND BY ALL OF ITS PROVISIONS, AND CONSENT TO USE OF ELECTRONIC SIGNATURES.
GENERAL TERMS AND CONDITIONS
The terms and conditions that follow apply to all products and services procured or otherwise received from Intellicene, except for SaaS services. Additional terms and conditions applicable to:
· Licensed Product are contained in the annex “LICENSED PRODUCT TERMS”
· SDK licenses are contained in the annex “SDK LICENSE TERMS”
· Mobile Apps are contained in the annex “MOBILE APP TERMS”
For SaaS Service Terms, please follow the terms set forth in the separate SaaS Agreement between You and Intellicene provided to you separately.
1 GENERAL DEFINITIONS. The following capitalized terms shall have the meaning ascribed to them below. Additional definitions are included within the applicable appendices to this Agreement.
Confidential Information. Any non-public information, technical data, or know-how, including, without limitation, that which relates to: (i) research, product plans, products, pricing, services, customers, personnel, markets, software, software code, software documentation, developments, inventions, lists, trade secrets, data compilations, processes, designs, drawings, engineering, hardware configuration information, marketing or finances, which is designated in writing to be confidential or proprietary at the time of disclosure if provided in tangible form, or if provided in non-tangible form, shall be identified by the disclosing party at the time of disclosure as confidential or proprietary, (ii) with respect to Intellicene, information concerning any products and services provided hereunder and/or materials resulting from services, and any derivatives thereto, and the terms and conditions of this Agreement, and (iii) with respect to Customer, any Customer Data. Notwithstanding the foregoing, and except with respect to Customer Data, Confidential Information does not include information, technical data or know-how that is: (a) in the public domain or becomes available to the public and not as a result of the act or omission of the receiving party; (b) without restriction on disclosure, rightfully obtained by the receiving party from a third party; (c) without restriction on disclosure, lawfully in the possession of the receiving party at the time of disclosure; or (d) approved for release by written authorization of the disclosing party.
Customer Data. All data either provided by Customer or entered on Customer’s behalf through use of the products and services provided by Intellicene, or collected or generated by those products and services on behalf of Customer, including, without limitation any Personal Data, technical information about a device, system or application software, location data, and other information from Customer which remains in Intellicene’s possession and control for further processing, but expressly excluding any Feedback.
Customer Environment. The computing environment (excluding any software expressly provided by Intellicene on an Order) separately procured, prepared and maintained by Customer for the access and use of the products and services, where such computing environment meets Intellicene’s then-current minimum requirements for the applicable products and services.
Data Subject. An individual who (a) uses the products or services provided by Intellicene and/or (b) about which information is collected or generated as a part of the products or services provided by Intellicene.
Designated Employees. A reasonable number of Customer Personnel (including Customer’s system administrator(s)), who have received training from Intellicene. Designated Employees may be changed by notice to Intellicene.
Documentation. Intellicene’s documentation describing the specifications and use of the products and services provided by Intellicene, as updated from time to time.
Error. A failure of the products or services provided by Intellicene to substantially conform to the Documentation that Intellicene can replicate or Customer can duplicate.
Error Correction. Revisions, modifications, alterations, and additions to the products or services provided by Intellicene to Customer as bug fixes or workarounds to resolve Errors, or installed by Intellicene in the Hosted Environment as bug fixes or workarounds, each to resolve Errors.
Feedback. Any suggestions, comments or other feedback provided to Intellicene concerning Intellicene’s products and services, including, but not limited to, the design, features, functionality, operation and release strategies of Intellicene’s products and services.
Fees. Any and all fees as specified in this Agreement.
Hosted Environment. Intellicene or its third party’s technical environment required to operate and provide access to the relevant Intellicene service.
Intellectual Property Rights. Any and all tangible and intangible rights, title and interest in and to: (i) works of authorship, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof, (ii) trademarks and trade names, (iii) Confidential Information, trade secrets and know-how, (iv) patents, designs, algorithms and other industrial property, (v) all other intellectual and industrial property rights whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.
Order. The details of an order by Customer for products and services provided by or through Intellicene (i) on an order form or schedule provided by Intellicene and signed by Customer, or (ii) on Customer’s purchase order provided to and accepted by Intellicene, or (iii) placed on and accepted by Intellicene by an authorized Intellicene reseller on Customer’s behalf. For the purposes of (iii), all terms and conditions of this Agreement shall apply as between Customer and Intellicene, except with respect to invoicing and payment terms.
Personal Data. In respect of each Data Subject means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person which shall include information collected by the use of web-site cookies and IP addresses.
Personnel. With respect to Customer, each of Customer’s employees or independent contractors (not a competitor of Intellicene) under obligations of confidentiality and nondisclosure, and other individuals with access to components of the products and services provided by Intellicene designated for external use, which Customer authorize to use the products and services procured hereunder; with respect to Intellicene, each Intellicene employee or subcontractor under obligations of confidentiality and nondisclosure which performs on behalf of Intellicene hereunder.
Privacy Laws. Laws, as applicable to Personal Data, concerning the regulation of the collection, processing, data security, and trans-border data flows, use of web-site cookies, email communications, use of IP addresses and meta-data collection.
Professional Services. Installation, configuration, training, consulting and/or, except with respect to Support, other services provided to Customer hereunder.
Professional Service Fee. The fees identified at the time of and on each Order on a fixed fee or time and material basis for Professional Services to be performed.
Support. The maintenance and/or support provided for a Licensed Product(s) and any On-Premise Component(s) at the support level specified on an Order (“Maintenance and Support Plan”), as further described in the document found at https://intellicene.com/wp-content/uploads/2023/02/INTEL_0034_BROCHURE_SOFTWARE_SUPPORT_PLAN_v2FIN.pdf .
Updates. Periodic improvements or additions to the products and services provided by Intellicene, including Error Corrections and other changes to those products and services, that may be provided hereunder, but excluding any new feature or substantial additional functionality available for those products and services, which, in Intellicene’s sole discretion, is subject to additional fees.
Intellicene Intellectual Property. All Intellectual Property Rights in the products and services provided by Intellicene, and all other Confidential Information provided by Intellicene hereunder.
2 PROFESSIONAL SERVICES. Customer may order Professional Services from Intellicene or its authorized reseller or integrator by submitting a request for such Professional Services. Any Professional Services provided hereunder are subject to (i) Customer’s performance of any obligations herein, and (ii) the terms of a mutually agreeable implementation plan. With respect to any installation, configuration, and integration and other services by and between a Customer Environment and the products and services provided by Intellicene hereunder, Intellicene agrees to perform those services to the extent specified on an Order. Customer must provide all necessary information, access, workspace, computing resources, and other services and support materials as reasonably required by Intellicene to perform its duties in a timely manner. All services provided on a time and material basis are per person unless otherwise specified, and charged hourly or daily as indicated for each person. Services scheduling is dependent upon the allocation and availability of Intellicene resources. In the event Customer reschedule or cancel scheduled services, Intellicene may, to the extent Intellicene cannot reschedule its applicable resources, charge Customer a rescheduling or cancellation fee.
2.1 Professional Services Limited Warranty. Intellicene warrants that the Deliverables provided hereunder shall be performed with that degree of skill and judgment normally exercised by recognized professional firms performing the same or substantially similar Professional Services. In the event of any breach of the foregoing warranty, provided Customer has delivered to Intellicene timely notice of such breach as hereinafter required, Intellicene shall, at its own expense, in its discretion either (i) correct the non-conforming Deliverables to conform to this standard; or (ii) refund to Customer that portion of the price received by Intellicene attributable to the non-conforming Deliverables. No warranty claim shall be effective unless Customer has delivered to Intellicene written notice specifying in detail the non-conformities within 90 days after tender of the non-conforming Deliverables. The remedy set forth in this Section 2.1 is the sole and exclusive remedy for breach of the foregoing warranty.
2.2 INTELLICENE SPECIFICALLY DISCLAIMS ANY OTHER EXPRESS OR IMPLIED STANDARDS, GUARANTEES, WARRANTIES OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE, ANY WARRANTY OF ERROR‑FREE PERFORMANCE, OR ANY WARRANTY OF THIRD PARTY PRODUCTS, OR FUNCTIONALITY OF THE CUSTOMER’S HARDWARE, SOFTWARE, FIRMWARE, OR COMPUTER SYSTEMS.
2.3 Customer represents and warrants to Intellicene that Customer has the right to use and furnish to Intellicene for Intellicene use in connection with this Agreement any information, specifications, data or Intellectual Property that Customer has provided or will provide to Intellicene in order for Intellicene to perform the Services and to create the Deliverables identified hereunder.
3 CUSTOMER DATA. Intellicene acknowledges it receives no ownership or, except to the extent specified herein, other rights in any Customer Data, and all rights, title and interest in such Customer Data remain with Customer. Intellicene shall not, and shall not permit its third party vendor(s) to disclose Customer Data to any third party, or make any use of the Customer Data, unless authorized by Customer or Intellicene is required to do so by law or court order. Customer agrees that Intellicene may: (a) use and disclose Customer Data in aggregate and anonymous form, and/or (b) use Customer Data for Intellicene’s internal business purposes, including without limitation, improving and/or creating enhancements to or new offerings related to Intellicene’s products and services, and for purposes of planning, support, administration and invoicing related to Customer’s use of such products and services. Customer agrees that Customer is solely responsible for: (i) obtaining any Customer Data and other information Customer provides while using Intellicene’s products and services, (ii) obtaining all rights and requisite consents necessary to collect and use the Customer Data, and (iii) the accuracy, completeness, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data. By providing any Customer Data or other information, Customer represent and warrant that such information does not (x) violate any intellectual property rights, publicity rights, confidentiality or trade secret rights, or any other legal or equitable rights; and (y) violate any law, rule, order, judgment or regulation to which Customer or the Customer Data may be subject. Customer acknowledges and agrees that Intellicene is not responsible or liable for any unlawful, harassing, defamatory, privacy invasive, abusive, threatening, offensive, harmful, vulgar, obscene, tortuous, hateful, racially, ethnically or otherwise objectionable information contained in Customer’s Customer Data, or content, or information or content contained in Customer Data that infringes or may infringe any copyright, patent, moral right, trade secret, confidential information, trademark right or any other right of a third party. Customer, at Customer’s sole expense, shall defend, indemnify and hold harmless Intellicene from any action based upon a claim resulting from any breach of Customer’s obligations in this Section 3, and shall reimburse Intellicene for all damages, costs, and expenses (including reasonable attorneys’ fees) incurred by Intellicene pursuant to any such actions.
4 INTELLECTUAL PROPERTY; CONFIDENTIALITY.
4.1 Ownership. Customer acknowledges Intellicene owns or has the right to license the products provided by Intellicene hereunder, and that all Intellectual Property Rights in and to the Intellicene Intellectual Property, and derivatives thereto, are and shall remain vested in Intellicene or its licensor(s). Except for the limited license and use rights granted hereunder, Customer shall not assert any right, title, or interest in or to the products or services provided by Intellicene hereunder, or any other Intellicene Intellectual Property.
4.2 Intellicene Intellectual Property Protection. In no event shall this Agreement, or any rights or privileges hereunder, be an asset of Customer under any bankruptcy, insolvency, or reorganization proceedings, or in any other manner whatsoever; however, this Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, and permitted transferees, successors, and assigns. Customer shall comply with all applicable (including, all U.S. and applicable foreign) laws and administrative regulations relating to the control of exports of commodities and technical and/or personal data, and all laws directly or indirectly applicable to its activities hereunder or otherwise pursuant to or in connection with this Agreement, the license or use of any product, and the delivery of any services. Except as otherwise specified in this Agreement, expressly permitted in writing by Intellicene, or otherwise cannot be precluded under mandatory applicable law, Customer shall not, and shall not permit any other party to:
a. Disassemble, decompile, decrypt, or reverse engineer, or in any way attempt to discover or reproduce source code for, any part of the products or services; adapt, modify, or prepare derivative works based on any of the Intellicene Intellectual Property; or use any of the Intellicene Intellectual Property to create any computer program or other material that performs, replicates, or utilizes the same or substantially similar functions as the products and services provided hereunder;
b. Disclose the products or services or its operation to third parties, or use the products or services in a service bureau or time sharing environment;
c. Alter, remove, or suppress any copyright, confidentiality, or other proprietary notices, marks or any legends placed on, embedded or otherwise appearing in or on any Intellicene Intellectual Property; or fail to ensure that all such notices and legends appear on all full or partial copies of Intellicene Intellectual Property or any related material;
d. Sell, sublicense, lease, assign, delegate, transfer, distribute, encumber or otherwise transform any Intellicene Intellectual Property or any of the rights or obligations granted to or imposed on Customer hereunder.
4.3 Confidentiality. The unauthorized disclosure or use of Confidential Information of a disclosing party or of a disclosing party’s third party licensors, and all information and services related thereto, would cause great injury and harm to the owner thereof. Therefore, each party agrees to take all appropriate action to ensure the confidentiality and security of the other party’s Confidential Information, but in any event no less than the same standard of care it uses to protect its own Confidential Information of like kind and value. Without limiting the generality of the foregoing, Customer and Intellicene each agree that it: (i) shall maintain the other’s Confidential Information in the strictest confidence, including compliance with reasonable remote access security requirements; (ii) shall not disclose, display, publish, transmit, or otherwise make available such Confidential Information or take the benefit thereof, in whole or in part, except in confidence to its own Personnel on a need-to-know basis; and (iii) except as expressly permitted hereunder, shall not copy, duplicate, replicate, transform, or reproduce such Confidential Information. Notwithstanding anything to the contrary in this Section, neither party shall be liable to the other for damages resulting from disclosure of any Confidential Information required by law, regulation or valid court order; provided that, when permitted by the law, regulation or valid court order, prior written notice is provided to the other party sufficiently in advance of such required disclosure to allow the other party to respond and take reasonable and lawful action to avoid and/or minimize the degree of such disclosure or seek appropriate protective orders.
4.4 Feedback. Customer may from time to time provide Feedback to Intellicene. Customer acknowledges and agrees that any such Feedback is provided on a voluntary basis only and Customer will not seek or be entitled to receive any compensation in any form for such Feedback. Intellicene has no obligation to respond to Feedback or to incorporate Feedback into its products and services. Customer agrees that all Feedback, even if designated as confidential by the Customer, shall not create any confidentiality obligation for Intellicene, and agrees that Intellicene is free to disclose and use such Feedback, and any derivatives thereto, without restriction. By submitting Feedback to Intellicene, Customer agrees to assign and hereby does assign to Intellicene all right, title and interest in and to such Feedback, and agrees to perform all acts reasonably requested by Intellicene, at Intellicene’s cost, to perfect and enforce such rights.
4.5 Security. Intellicene shall, either directly, or through its third party service provider, implement and maintain commercially reasonable security precautions to prevent unauthorized access to the Customer Data that is retained by Intellicene. Intellicene reviews its security precautions on a regular basis and modifies them as required by legal, regulatory, and other requirements. Intellicene has developed and maintains operation security policies based on commercially reasonable practices and its own experience. Intellicene will provide any services hereunder in compliance with Intellicene’s then-current operations security policies applicable to those services. Should Customer have reason to believe that there has been a breach of security resulting in the unauthorized disclosure of Customer Data to a third party, Customer agrees to contact Intellicene immediately via email at support@Intellicene.com. Should Intellicene determine that there has been a breach of security resulting in the unauthorized disclosure of Customer Data to a third party, Intellicene shall (within 72-hours or sooner if required by law) contact Customer by email and/or by telephone, at the contact information provided by Customer.
5 WARRANTY.
5.1 Limited Performance Warranty.
For Licensed Product: Intellicene warrants to Customer that for a period of ninety (90) days after its initial delivery, the Software shall operate in a Customer Environment substantially in accordance with the Documentation. Customer’s exclusive remedy for a breach of the foregoing shall be for Intellicene to use commercially reasonable efforts to either correct any verifiable material nonconformity or to replace the materially nonconforming Software; provided, however, if Intellicene cannot provide either remedy, upon receipt of the materially nonconforming Software, Intellicene shall refund Customer the License Fee paid for same.
For Professional Services: Intellicene warrants to Customer that for a period of thirty (30) days after performance, the Professional Services provided hereunder were performed in a timely and professional manner by qualified personnel. Customer’s exclusive remedy for a breach of the foregoing shall be for Intellicene to re-perform the affected Professional Services, or waive or refund (as appropriate) the fee for such Professional Services.
5.2 Warranty Disclaimer. THE LIMITED WARRANTY AND EXCLUSIVE REMEDY SET FORTH IN SECTION 5.1 ARE MADE FOR THE BENEFIT OF CUSTOMER ONLY, AND ARE EXPRESSLY SUBJECT TO: (I) SATISFACTION OF ANY PAYMENT OBLIGATIONS TO INTELLICENE, AND (II) SECTION 4.3 IN THE “LICENSED PRODUCT TERMS”. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1, INTELLICENE MAKES NO AND DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WRITTEN OR ORAL, OR EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, INTEROPERABILITY, DATA ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY PRODUCT, SERVICES, SUPPORT, OR ANY COMPONENTS THEREOF. WITHOUT LIMITING THE FOREGOING, INTELLICENE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF ANY PRODUCTS OR SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. FOR THE AVOIDANCE OF DOUBT, SECTION 5.1 SHALL NOT APPLY TO ANY BETA, PILOT OR OTHER TRIAL SUBSCRIPTIONS, NON-PRODUCTION ENVIRONMENTS OR MOBILE APPS, EACH OF WHICH ARE PROVIDED ‘AS IS’ AND WITHOUT WARRANTY OF ANY KIND.
6 PAYMENT.
6.1 Fees and Expenses. Unless otherwise agreed between the parties in writing and in advance, all Orders placed hereunder are subject to Intellicene’s acceptance of that Order, and Incoterms (2010) EXWORKS delivery terms. Prior to accepting an Order, Intellicene shall have the right to perform any credit and other checks required by Intellicene. For any Orders placed directly by Customer, Intellicene shall invoice Customer one hundred percent (100%) of (as applicable to an Order) License Fees, Support Fees for the initial Support Term, and any fixed fee Professional Services fees applicable to such Order upon Intellicene's receipt and acceptance of the Order, and, as applicable, Intellicene may invoice Customer (a) in advance for any renewal Support Term, and each subsequent Billing Period, including with respect to any renewal Access Terms, (b) for Overages in arrears on a quarterly basis, and (c) for all other fees, assessments and expenses provided for under this Agreement as performed and/or incurred. All payments shall be due within thirty (30) days after the applicable invoice date, without deduction. Customer is responsible for all taxes, duties and tariffs of any kind (except with respect to Intellicene’s income), and all costs of shipment. Customer agree to pay Intellicene all costs of collection resulting from Customer’s failure to pay any amounts due Intellicene hereunder. Intellicene shall have the right to withhold performance under this Agreement (i) to the extent it has knowledge that any governmental approvals required under then-current applicable laws and/or regulations have not been properly obtained by the respective party(ies), or (ii) if Customer is in delinquent on any payments or are otherwise in breach of this Agreement.
6.2 Accurate Records; Audit. Customer shall keep complete and accurate records of all its obligations hereunder. Customer shall allow Intellicene or its agent reasonable access to audit Customer’s records and systems solely to verify general compliance with the terms and conditions of this Agreement, including, without limitation, Customer and/or Intellicene running Intellicene provided utilities to determine actual usage. Intellicene shall conduct such audits during Customer’s normal business hours with reasonable notice, or as otherwise reasonably requested by Customer.
7 LIMITATION AND CAP ON LIABILITY. INTELLICENE’S MAXIMUM LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL BE IN THE AGGREGATE AND LIMITED TO CUSTOMER’S DIRECT ACTUAL DAMAGES NOT TO EXCEED GREATER OF (A) THE ACTUAL FEES PAID TO INTELLICENE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CLAIM OR SERIES OF CLAIMS AROSE, REDUCED BY ANY AMOUNT DUE INTELLICENE, OR (B) USD$10,000. IN NO EVENT SHALL INTELLICENE, ANY PARENT, SUBSIDIARY, AFFILIATE OR LICENSOR, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES, BE LIABLE (I) TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND OR NATURE OR IN ANY MANNER WHATSOEVER, OR (II) TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, INCIDENTAL, OR SPECIAL DAMAGES OR COSTS (INCLUDING ATTORNEYS’ FEES OR LOST PROFITS, TIME, SAVINGS, PROPERTY, DATA OR GOODWILL) REGARDING THIS AGREEMENT OR RESULTING FROM OR IN CONNECTION WITH THE USE, MISUSE, OR INABILITY TO USE ANY PRODUCTS OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION, EVEN IF INTELLICENE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL INTELLICENE BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF ESSENTIAL PURPOSE, CONSIDERATION, OR OF AN EXCLUSIVE REMEDY.
8 TERM; TERMINATION. This Agreement shall be effective upon the earlier of the date Customer indicates assent to the terms and conditions of this Agreement through a digital signature process, the date that Intellicene accepts the initial Order hereunder (as may be evidenced by Intellicene’s performance), or the date of Customer’s first installation or use of an applicable product or service contemplated hereunder, and shall continue so long as Customer continues to abide by the terms and conditions of this Agreement. Intellicene hereby reserves the right to terminate this Agreement and any rights provided hereunder, should Customer fail to cure any breach of this Agreement after ten (10) day notice of the Breach by Intellicene. Upon termination of this Agreement, and except to the extent specified herein, (i) all fees due to Intellicene for shall be immediately paid, and (ii) all of Customer’s rights to access and use any of services provided hereunder shall immediately terminate without right of refund. Provisions herein which by their context and content are intended to survive termination or expiration hereof shall so survive, including Sections 1, 3, 4, 5.2, and 6 to 15 in these “General Terms and Conditions”, Sections 1 and 2 in the “Licensed Product Terms”, Sections 1 and 3 in the “SDK License Terms”.
For Licensed Product: Upon termination of this Agreement, Customer’s license rights granted in any Licensed Product licensed hereunder shall survive such termination; provided, (i) this Agreement has not terminated by Intellicene for Customer’s breach, (ii) Customer continues to comply with all terms and conditions surviving termination of this Agreement, and (iii) Customer’s use of the Licensed Product does not exceed the license rights granted hereunder. In the event of any failure of (i), (ii) or (iii) at the time of, or subsequent to termination of this Agreement, (a) all rights and licenses granted hereunder shall immediately terminate and any uses by or on behalf of Customer must immediately cease, and (b) Customer shall immediately delete all copies of any Licensed Product licensed hereunder, return to Intellicene all other Intellicene Intellectual Property.
For SDK Licenses: Upon termination of this Agreement, (a) all rights and licenses granted in an SDK shall immediately terminate and any use of that SDK by or on behalf of Customer must immediately cease, and (b) Customer shall immediately delete all copies of the SDK licensed hereunder.
For Mobile Apps: Upon termination of a Mobile App license in accordance with Section 2 of “Mobile App Terms”, or termination of this Agreement, (a) all rights and licenses granted in the Mobile App(s) shall immediately terminate and any use of that Mobile App(s) by or on behalf of Customer must immediately cease, and (b) Customer shall immediately delete all copies of the Mobile App(s) licensed hereunder from any Mobile Device.
On request by Intellicene, Customer shall provide to Intellicene certification of the foregoing, as applicable to Customer.
9 GOVERNING LAW; FORUM. This Agreement is governed exclusively by the laws of the U.S. and the state of New York, without giving effect to its conflict of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties. The parties further agree that the place of contract and performance of this Agreement is New York, New York.
10 REMEDIES. Customer acknowledges that remedies at law may be inadequate to provide Intellicene with full compensation in the event of Customer’s material breach of this Agreement, and that Intellicene shall therefore be entitled, without bond or other security obligation, to seek injunctive relief in the event of any such material breach. Customer agrees to cooperate with Intellicene, and to obtain all required consents, in the event a third party seeks to compel Intellicene to disclose Customer Data through any legal process. Intellicene shall be entitled to charge Customer for all costs and expenses (including reasonable attorney fees) incurred complying with or defending against such legal process, and on a time and material basis for any work performed to produce such Customer Data. To the extent legally permitted, Intellicene shall provide Customer with advanced notice to allow Customer to take reasonable and lawful action to minimize the degree of such disclosure or to seek appropriate protective orders. Notwithstanding any other terms in this Agreement, Intellicene shall not be liable to any party for damages resulting from disclosure of Customer Data under such legal process.
11 WAIVER / SEVERABILITY. The failure of Intellicene to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is for any reason held unenforceable or invalid, then this Agreement shall be construed as if such provision were not contained in this Agreement.
12 Publicity. Except as provided herein or required by law, Customer shall not publicize or disclose the existence or terms of this Agreement to any third party without the prior written consent of Intellicene. Intellicene may use Customer’s name and logo (so long as in accordance with any mark guidelines provided by Customer to Intellicene) in Intellicene’s promotional materials, including, without limitation, press releases, customer lists, and presentations to third parties.
13 FORCE MAJEURE. Except for obligations of confidentiality, payment, and compliance with laws, neither party shall be liable for any delay or failure in performing hereunder if caused by any factor beyond the reasonable control of the party, including force of nature, war, riot, civil action, terrorism, labor dispute, malicious acts or denial of service by a third party, or failure of telecommunication systems or utilities. Performance shall be deferred until such cause of delay is removed, provided that the delayed party promptly notified the other party after having actual knowledge of any such occurrence.
14 ASSIGNMENT. Except to the extent such rights cannot be restricted by applicable law, Customer cannot assign, sublicense, or transfer this Agreement without the prior written consent of Intellicene, and any such attempt by Customer to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void, and subject to Intellicene’s right to immediately terminate this Agreement.
15 ENTIRE AGREEMENT / MODIFICATIONS. Except as otherwise specified in this Section, this Agreement, plus the terms on any Order signed in hardcopy form by both Customer and Intellicene, comprises the entire agreement between Customer and Intellicene, and supersedes any other agreement or discussion, oral or written, with respect to the subject matter of this Agreement, and may not be changed except by a written agreement signed in hardcopy form between the parties. Preprinted, additional or conflicting provisions on Customer’s purchase order or on either party’s acknowledgement forms, whether presented before or after the terms of this Agreement, and including any integration clauses contained therein, shall not apply unless agreed to by both parties in writing signed in hardcopy form. Customer agrees that Customer’s use of the products and services provided by Intellicene signifies Customer’s agreement to all terms and conditions of this Agreement. In the event the parties to this Agreement have executed, in hardcopy form, a separate agreement, or other electronically signed agreement covering the same subject matter, that separate agreement shall remain in effect, govern and control for that subject matter, and this Agreement shall govern and control for all other subject matters contemplated herein. Any reference to a law or statute in this Agreement shall be deemed to include any amendment, replacement, re-enactment thereof for the time being in force and to include any by-laws, statutory instruments, rules, regulations, orders, notices, directions, consents, or permissions (together with any conditions attaching to any of the foregoing) made in respect thereof.
LICENSED PRODUCT TERMS
1 DEFINITIONS.
License Fee. The fees identified at the time of and on each Order for licensing Licensed Product as specified on that Order.
Licensed Product. Collectively, the Software and Documentation licensed to Customer as identified in an Order or Orders hereunder, and all permissible copies of the foregoing.
Software. Computer application programs (including, if applicable, any Updates and other developments provided to Customer hereunder) in object code form developed and owned by Intellicene or its licensor(s) and licensed hereunder, but expressly excluding any Mobile Apps.
Support Fee. The amount identified at the time of and on each Order for Customer’s right to receive Support for a Licensed Product identified in such Order during the initial Support Term, and at Intellicene’s then-current rate for any renewal Support Term.
Support Term. The initial one (1) year period commencing on the execution of each Order for Licensed Product, and each one (1) year renewal period thereafter for which Customer subscribes to Support.
Version. The Software configuration identified by a numeric representation, whether left or right of decimal place.
2 LICENSE. Intellicene grants to Customer, and Customer accepts, a perpetual (subject to Section 8 of the “General Terms and Conditions”), nonexclusive, nonassignable (subject to Section 14 of the “General Terms and Conditions”), and nontransferable limited license with respect to the number of copies of the Software and Documentation as specified in an applicable Order solely by Customer’s Personnel for Customer’s internal business operations, and subject to the terms and conditions of this Agreement. Use of the Software by Customer, Customer’s Personnel or any other party authorized hereunder shall at no time exceed the total use rights granted in applicable Orders. With respect to any third party applications provided by Intellicene with the Licensed Products, use of those third party applications is expressly limited to use in conjunction with the Licensed Products, and may not be used independent of those Licensed Products. Customer may change the location of a site designated in an Order; provided Customer complies with all applicable laws, and provides Intellicene with notice, including information regarding the current site, new site and Licensed Product and quantity of licenses. Customer may make a reasonable number of copies of the Software solely as needed for back-up and archival purposes, and of the Documentation solely as needed for Customer’s internal business purposes as set forth herein.
3 CUSTOMER ENVIRONMENT. Prior to the installation of a Licensed Product, Customer shall ensure the establishment of a Customer Environment at each site for use and operation of the Licensed Product. Customer acknowledges that, except as otherwise expressly specified on an Order, Intellicene is not responsible for obtaining, licensing or selling any hardware, peripherals or third-party software or interfaces needed to prepare or maintain the Customer Environment. Customer is responsible for backing up Customer’s systems and data prior to providing Intellicene with access to the Customer Environment.
4 SUPPORT.
4.1 Support. Subject to payment of all Support Fees, during any Support Term, Intellicene’s Support includes the following:
a. Support Access. Customer’s Designated Employees shall have direct access via telephone to Intellicene’s support center during hours specified in the applicable Maintenance and Support Plan. Intellicene shall use commercially reasonable efforts to provide Error Corrections.
b. Updates; Versions. In addition to Error Corrections, Intellicene shall provide Customer with other Updates that Intellicene generally offers to customers subscribing to the same Maintenance and Support Plan. All such Updates become part of the Licensed Product for all purposes hereof.
4.2 Version Support. Unless otherwise notified by Intellicene, Intellicene will provide Support hereunder for each Version of the Software for one (1) year after Intellicene discontinues the sales of licenses for that Version (“EOS”) (not including add-on license sales for existing installations of that Version). The EOS period commences when Intellicene announces that the next Version of the Software is now generally available.
4.3 Exclusions. Notwithstanding Intellicene’s support obligations hereunder, Intellicene shall have no responsibility or liability of any kind arising or resulting from:
a. Customer’s failure to: (i) correctly install Updates or other modifications to the Licensed Product provided by Intellicene, (ii) prepare a computing environment that meets the specified Customer Environment prior to Licensed Product installation or to maintain such Customer Environment and Licensed Product thereafter, (iii) grant access and security authorization, or (iv) provide necessary communications mechanisms;
b. Errors resulting from misuse, abuse, negligence, or improper use of all or any part of the Licensed Product; or problems to or caused by products or services not provided by Intellicene;
c. Product modification, amendment, revision, or change by any party other than Intellicene or Intellicene’s authorized representatives; or
d. Electrical failure, Internet connection problems, or data or data input, output, integrity, storage, back-up, and other external and/or infrastructure problems, which shall be deemed under Customer’s exclusive control, and Customer's sole responsibility.
4.4 Additional Services. If Customer desires Intellicene to install and configure any Updates, or Intellicene provides Services as a result of any conditions specified in Section 4.2 or 4.3, or otherwise provides support services to Customer outside the scope of services specified for Customer’s applicable Maintenance and Support Plan, Intellicene may charge Customer for such services at Intellicene’s then current Professional Service Fee rate.
MOBILE APP TERMS
1 DEFINITIONS.
Mobile App. The application provided by Intellicene either through an online application store, a Intellicene website, or other method of download, where such application is intended to be loaded onto a Mobile Device for use in conjunction with a Intellicene product or service.
Mobile Device. A mobile telephone, tablet device or other handheld device.
2 LICENSE. By downloading or using a Mobile App, Customer is granted a nonexclusive, revocable, nontransferrable, nonassignable limited right to install and use the Mobile App on a Mobile Device, and to access and use the functionality on such Mobile Device strictly in accordance with the terms of this Agreement and solely for the Intellicene product or services intended purpose. The license granted hereunder to use the Mobile App is contingent upon Customer’s purchase (either directly, or indirectly through the relevant Intellicene product or service licensee) of connectivity licenses from Intellicene for the right to connect the Mobile App to the Intellicene product and/or service, and then that Mobile App license is only valid for so long as Customer continues to have a valid license or right to the other Intellicene product or service.
3 RESTRICTIONS. Customer shall not: (i) install, use or permit the Mobile App to exist on more than one Mobile Device at a time or on any other mobile device or computer, other than by means of separate downloads of the Mobile App, each of which is subject to a separate license (this restriction however does not limit Customer’s right to reinstall the Mobile App on the specific Mobile Device for which it was downloaded).
4 SUPPORT AND RESPONSIBILITIES. Intellicene may periodically access Customer’s Mobile Device remotely to update, modify, add to or upgrade the Mobile App. Such updates, modifications, additions or upgrades may cause data loss or other issues. Customer is solely responsible for regularly backing Customer’s data to prevent this from occurring. Customer acknowledges and understands that certain services or aspects of the Mobile App require and utilize phone service, data access or text messaging capability. Carrier rates for phone, data and text messaging may apply and Customer is responsible for any such charges.