1.2. “Applicable Data Protection Laws”
means the privacy,
data protection, and data security laws and regulations of any jurisdiction
applicable to the Processing of Personal Data under this Agreement.
1.3. “Authorized User”
means any employees, independent
contractors, agents, or representatives of Subscriber, subject to any
Restrictions. For the avoidance of doubt, Consultants are not deemed
Authorized Users.
1.4. “Subscriber Content”
means any information, data, text,
logos, pictures, or other materials or content provided by Subscriber in
connection with Subscriber’s use of the Services, including but not limited to
employee data, data provided by Subscriber from Subscriber’s customer
relationship management software (“CRM Data”) or other data
of Authorized Users provided directly by Subscriber. For the avoidance of
doubt, Subscriber Content does not include Analytics Data.
1.5. “Confidential Information”
means all information
disclosed by one Party to the other in connection with this Agreement or
otherwise obtained by the Receiving Party, which the receiving Party knew or
reasonably should have known was the confidential information of the
disclosing Party. Except for Personal Data, Confidential Information shall not
include information that (i) is publicly available through no fault of the
Receiving Party,(ii) is independently developed by the Receiving Party, or
(iii) is rightfully obtained by the Receiving Party from independent sources
free from any duty of confidentiality. Confidential Information shall include
the terms and pricing in this Agreement, but not the fact that this Agreement
has been signed, the identity of the Parties, or the specific services
purchased by Subscriber.
1.6. “Data”
means Analytics Data and Personal Data.
1.7. “Documentation”
means Inselligence’s online
documentation, as updated and amended from time to time.
1.8. “Feedback”
means feedback, suggestions, improvements,
and recommendations regarding the Proprietary Items.
1.9. “Order Form”
means Inselligence’s standard order form
executed by both Parties that references this Agreement.
1.10. “Personal Data”
means “personal data,” “personal
information,” “personally identifiable information,” or similar term defined
in Applicable Data Protection Laws.
1.11. “Proprietary Items”
means, collectively, the Services
and Documentation, the visual expressions, screen formats, report formats, and
other design features of the Services and Documentation, all ideas, methods,
methodology, Models, algorithms, formulae and concepts used in developing
and/or incorporated into the Services or Documentation, all future
modifications, revisions, updates, refinements, improvements and enhancements
of the Services or Documentation, all derivative works based upon any of the
foregoing, and all copies of all of the foregoing.
1.12. “Process”
(including “Processed” and other variants of
the term) means any operation or set of operations that is performed upon
Personal Data or on sets of Personal Data, whether or not by automatic means,
such as collection, collation, recording, organization, storage, adaptation or
alteration, retrieval, consultation, analysis, interpretation, compilation,
aggregation, use, disclosure by transmission, dissemination, viewing, copying,
deleting, or otherwise making available, alignment or combination, blocking or
erasure, or destruction.
1.13. “Reports”
means the assessment and insights reports and
recommendations generated through the use of the Services, including all
Analytics Data and other data, information, or content therein.
1.14. “Restrictions”
means the limitations or restrictions
applicable to the Services, as presented at the time of ordering and/or
purchase. Thereafter, Inselligence may update the Restrictions from time to
time, provided that the Restrictions do not have a material adverse effect on
the functioning of any features or functionality of the applicable Services.
Further, Inselligence may update the Restrictions at the conclusion of any
subscription term for the Services.
1.15. “Inselligence’s Trademarks”
means Inselligence’s
trademarks, trade names, logos, and designations.
1.16. “Services”
means the limited access and use rights to
the portions of Inselligence’s proprietary software-as-a-service platform that
is designed to provide sales analytics.
2. PILOT
2.1. General.
During the period when Subscriber is receiving
the Services under an evaluation license (“Pilot Services”), the terms and
conditions of this Section 2 shall apply, and those in Sections 3.1
(Subscription Rights), 3.5 (Inselligence Obligations), 4 (Payments), and 9.1
(Indemnity by Inselligence) (collectively, the
“Inapplicable Provisions”) do not apply. Reference Section
3.1 (Subscription Rights) for the terms applicable to a commercial
subscription to the Services.
2.2. Evaluation License and Term.
Subject to the terms and
conditions of this Agreement (excluding the Inapplicable Provisions),
Inselligence hereby grants Subscriber and its Authorized Users a
non-exclusive, non-transferable (except in connection with a permitted
assignment) license (i) to access and use the Services in accordance with the
Documentation and subject to any Restrictions solely for the purposes of
internally evaluating the performance and functionality of the Services on an
evaluation basis, subject to the pilot fees identified at the time of purchase
or as set forth on any Order Form (including, using the Reports solely for
Subscriber’s internal purposes) until the earlier of(a) thirty (30) days
following the Effective Date (unless extended by Inselligence at its
discretion) or(b) the date Subscriber elects to commence the commercial
subscription (the “Pilot Period”).
2.3. Conversion into Commercial License.
When the Pilot
Period concludes, the evaluation license will automatically be converted into
a commercial license as set forth in Section 3.1 (Subscription Rights), unless
terminated by the Subscriber in Subscriber’s account settings prior to the
expiration of the Pilot Period.
2.4. Termination of Evaluation License.
The license in
Section 2.2, all of Subscriber’s rights to use the Pilot Services, and this
Agreement will terminate immediately in the event that Subscriber elects not
to purchase the commercial subscription by terminating the Agreement in
Subscriber’s account settings. Upon termination of the evaluation license,
Subscriber shall promptly cease use of the Pilot Services and the Reports. All
confidential information shall be returned or destroyed pursuant to Section
10.4.
2.5. Disclaimer.
ANY DATA THAT SUBSCRIBER OR ANY OF ITS
AUTHORIZED USERS ENTERS INTO THE SERVICES DURING THE PILOT PERIOD MAY BE
PERMANENTLY LOST IF SUBSCRIBER ELECTS NOT TO PURCHASE THE SERVICES UNLESS
SUBSCRIBER EXPORTS SUCH DATA BEFORE THE END OF THE PILOT PERIOD.
3. SUBSCRIPTION RIGHTS AND OBLIGATIONS
3.1. Subscription Rights.
If Subscriber purchases a
commercial license to the Services or if the evaluation license has converted
into a commercial license pursuant to Section 2.3, subject to the terms and
conditions of this Agreement, including full payment of all applicable fees,
Inselligence hereby grants to Subscriber and its Authorized Users a
non-exclusive, non-transferable (except in connection with a permitted
assignment) license (i) during the applicable Orden Form term, to access and
use the Services in accordance with the Documentation and subject to any
Restrictions, and (ii) in perpetuity, to use the Reports solely for
Subscriber’s internal business purposes.
3.2. Subscriber Content License.
Subscriber hereby grants
Inselligence a fully paid, royalty-free, irrevocable, worldwide,
non-exclusive, and fully sublicensable right (including any moral rights) and
license to (a) during the Term, use, distribute, reproduce, modify, adapt,
perform, and display Subscriber Content for the purposes of operating,
providing, enhancing, improving, supporting, and maintaining the Services for
Subscriber, and (b) in perpetuity, use and otherwise exploit in any manner any
Subscriber Content that does not contain personally identifiable information
solely for the purpose of operating, improving, and enhancing the Services and
any new services Inselligence creates. For the avoidance of doubt,
Inselligence shall have the right to run any Subscriber Content (or Data
described below) through Inselligence’s machine learning and artificial
intelligence tools in order to train and improve Inselligence’s models and
algorithms (“Models”), which Models may be used with other
Subscribers and generally to provide Inselligence’s products and services.
3.3. Data.
Subscriber acknowledges and agrees that
Inselligence may collect, retain, and use Data in any manner in compliance
with Inselligence’s privacy policy available at www.stageinselli.wpenginepowered.com, provided
that any disclosure of Analytics Data to third parties shall be in a form not
directly attributable to or identified with Subscriber except as may be
necessary solely for such third parties to provide services to Inselligence.
Subscriber hereby agrees that, to the extent Subscriber provides to
Inselligence or otherwise enables Inselligence to Process any Personal Data
that is subject to Applicable Data Protection Laws, it is bound by
Inselligence’s form of data processing addendum available at
www.stageinselli.wpenginepowered.com (“DPA”). If Subscriber has not entered
into such DPA, Subscriber represents, warrants, and covenants that no Personal
Data Processed by Inselligence under this Agreement is subject to Applicable
Data Protection Laws. Any Personal Data that is subject to Applicable Data
Protection Laws shall be governed by the DPA. In the event of a conflict
between any provision of the DPA and this Agreement, the provision providing
the higher level of privacy or data protection shall govern.
3.4. Subscriber Responsibilities.
Subscriber shall (a) be
responsible for Authorized Users’ acts and omissions in connection with their
access to and use of the Services, (b) use commercially reasonable efforts to
prevent unauthorized access to or use of the Services, and notify Inselligence
promptly of any such unauthorized access or use, (c) use the Services only in
accordance with this Agreement and the Documentation and in compliance with
all applicable laws, rules, and regulations, (d) reasonably cooperate with
Inselligence as necessary for Inselligence to perform its obligations under
this Agreement, and (e) be responsible for all Subscriber Content, including
the accuracy thereof and all rights necessary to use, distribute, and
otherwise disseminate such Subscriber Content (including, for the avoidance of
doubt, the CRM Data) for the purposes contemplated under this Agreement.
Subscriber represents and covenants that Subscriber will secure any necessary
consents from its Authorized Users (i) in order to allow Inselligence to
fulfill its obligations under this Agreement and (ii) to collect, use, and
disclose Data in accordance with the terms of this Agreement and
Inselligence’s privacy policy.
3.5. Inselligence Obligations.
Inselligence shall host,
operate, maintain, and support the Services, including any Subscriber Content
uploaded, posted, or otherwise transmitted to the Services by Subscriber or
its Authorized Users. Inselligence shall provide to Subscriber standard
support for the Services at no additional charge in accordance with
Inselligence’s standard support policies. Inselligence will use reasonable
commercial efforts to make the Services available not less than 99.9% of the
time in any given month, subject to scheduled downtime and other parameters
imposed by Inselligence’s web service provider. Inselligence shall have no
obligation to provide any additional services to Subscriber, including
training, implementation, or any support or maintenance in excess of
Inselligence’s standard support policy, unless Subscriber separately purchases
such services. From time to time in accordance with Inselligence’s generally
applicable procedures, Inselligence may make available to Subscriber updates,
upgrades, enhancements, and error corrections to the Services that Subscriber
has purchased at no additional charge when such updates, upgrades,
enhancements, and error corrections are generally made available to its other
Subscribers at no additional charge.
3.6. Usernames and Passwords.
Subject to any Restrictions,
Subscriber may register Authorized Users on the Service with e-mail addresses
and passwords to enable Authorized Users to access the Services pursuant to
this Agreement. Each email address and password may only be used to access the
Services during one (1) concurrent login session. Subscriber will ensure that
each email address and password issued to an Authorized User will be used only
by that Authorized User. Subscriber is responsible for maintaining the
confidentiality of all Authorized Users’ passwords and is solely responsible
for all activities that occur under these accounts. Subscriber agrees: (a) not
to allow a third party to use Subscriber’s accounts at any time, and (b) to
notify Inselligence promptly of any actual or suspected unauthorized use of an
account or any other breach or suspected breach of this Agreement.
Inselligence reserves the right to terminate any accounts that Inselligence
reasonably determines may have been used by an unauthorized third party.
Authorized User accounts and their associated e-mail addresses and passwords
cannot be shared or used by more than one individual Authorized User, but an
account may be reassigned from time to time to a new Authorized User who is
replacing a former Authorized User who has terminated employment or otherwise
changed job status or function and no longer uses the Services. Subscriber is
solely responsible for all access to and use of the Services by its Authorized
Users and all access to and use of the Services through any Authorized User’s
account.
3.7. Restrictions.
Subscriber shall not (and shall not permit
any Authorized User to) (a) make the Services available to any third party
other than Authorized Users, (b) resell, lease, distribute, transfer or
otherwise make available the Services on a time-sharing or service bureau
basis, (c) provide Subscriber Content that is infringing, libelous,
disparaging, or is otherwise unlawful or tortious material, or store or
transmit material in violation of any third-party’s proprietary or privacy
rights,(d) use the Services to promote any unlicensed, unfair, or illegal
activities or for deceptive or illegal purposes, (e) use the Services to store
or transmit malicious code, (f) use or access the Services in any way that
potentially harms, harms, or otherwise threatens the reputation, integrity,
performance, or availability of Inselligence, any Inselligence Subscriber, the
Services or any data therein, (g) attempt to gain unauthorized access to the
Services, other Subscriber content, or any data stored or processed therein,
(h) decompile, disassemble, or reverse engineer the Services, in whole or in
part, except as permitted by applicable law, or (i) use or access any
Proprietary Items to create (or have created) a competing or similar service.
Inselligence may restrict or prohibit use or access to the Proprietary Items
if Inselligence suspects such use or access is a breach of this Agreement,
does not comply with the Documentation or any Restrictions, or is otherwise
objectionable or threatens the reputation of Inselligence, any Inselligence
Subscriber, or the Services or any data therein.
4. PAYMENTS
4.1. Fees and Expenses.
Subscriber shall pay to Inselligence,
without offset or deduction, the then-current fees for the applicable Services
and this Agreement. Inselligence reserves the right to increase the fees
following the Initial Term, and each Renewal Term thereafter, but must provide
notification of such increases at least thirty (30) days in advance of the
Non-Renewal Notice Deadline (as defined below). Any subscription fees shall be
due and payable on the Effective Date, and thereafter, on the monthly or
yearly anniversary of the Effective Date, based on the subscription terms for
the Services purchased. Any overage fees or other amounts shall be due and
payable within thirty (30) calendar days after an invoice is issued by
Inselligence.
4.2. Taxes.
The fees and other amounts payable by Subscriber
to Inselligence do not include any taxes of any jurisdiction that may be
assessed or imposed upon the Proprietary Items, or otherwise, including sales,
use, excise, value added, personal property, export, import and withholding
taxes, excluding only taxes based upon Inselligence’s net income. Subscriber
shall directly pay any such taxes assessed. Subscriber shall promptly
reimburse Inselligence for any taxes payable or collectable by Inselligence
(other than taxes based upon Inselligence’s net income). If Subscriber has
provided Inselligence with proof of its tax-exempt status, then, in the event
that Subscriber’s tax-exempt status should become altered, Subscriber shall be
obligated to notify Inselligence immediately of any such modification, and
Subscriber shall become liable for all taxes as set forth above. In the event
Subscriber fails to notify Inselligence of any such change, Subscriber shall
be liable for payment of any tax-related penalties or interest assessed
against Inselligence or Subscriber as a result of such Subscriber failure.
4.3. Payment Terms.
Inselligence accepts and processes
payments (including renewals) from Subscriber by credit card (e.g., Visa,
MasterCard, or any other issuer accepted by Inselligence), or as otherwise
mutually agreed to by the Parties in writing. If payment will be made by
credit card, Inselligence will process payment (including renewals) from
Subscriber based on any credit card information Inselligence is provided by
Subscriber. Subscriber’s credit card agreement governs its use of the
designated credit card or account. By providing Inselligence with credit card
information, Subscriber agrees that Inselligence is authorized to invoice and
charge Subscriber’s account for all fees and charges due and payable to
Inselligence and that no additional notice or consent is required. If
Subscriber’s credit card issuer rejects any amount charged on Subscriber’s
credit card, then Inselligence will notify Subscriber thereof and Subscriber
will timely pay the fees and expenses by check or wire transfer. If payment
will be made by check or if Subscriber’s credit card issuer rejects any amount
charged on Subscriber’s credit card, amounts owed to Inselligence will be
invoiced to Subscriber’s address for invoices as designated by Subscriber or,
if not designated, then the address printed on this Agreement. If any
Subscriber payment is more than thirty (30) days past due, interest at the
rate of twelve percent (12%) per annum (or, if lower, the maximum rate
permitted by applicable law) shall accrue. Unless otherwise specified in this
Agreement, all fees and other amounts paid by Subscriber under this Agreement
are non-refundable. All dollar amounts referred to in this Agreement are in
United States Dollars.
4.4. Suspension.
In the event that Subscriber’s account is
more than thirty (30) days overdue on any payment for any reason, Inselligence
shall have the right, in addition to its remedies under this Agreement or
pursuant to applicable law, to suspend Subscriber’s use of the Proprietary
Items, without further notice to Subscriber, until Subscriber has paid the
full balance owed, plus any interest due.
5. WARRANTY AND DISCLAIMER.
5.1. Warranty.
The Services shall be performed in a
professional and workmanlike manner in accordance with industry standards.
5.2. Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION 5, ALL SERVICES, PROPRIETARY ITEMS, AND REPORTS ARE PROVIDED “AS IS”
AND INSELLIGENCE MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER ORAL OR
WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OF DEALING,
COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
NON-INTERFERENCE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, INSELLIGENCE DOES NOT REPRESENT OR WARRANT THAT: (A) THE
PROPRIETARY ITEMS OR REPORTS WILL MEET ANY FORECASTS, EXPECTATIONS OR
SPECIFICATIONS OF SUBSCRIBER;
(B) THE OPERATION OF THE SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE;
(C) THE USE OF THE SERVICES WILL NOT RESULT IN A
LOSS OF SUBSCRIBER CONTENT OR OTHER SUBSCRIBER DATA; OR (D) THE USE OF THE
SERVICES WILL NOT EXPOSE THE SUBSCRIBER’S HARDWARE OR NETWORKS TO ADDITIONAL
SECURITY RISK. INSELLIGENCE DOES NOT MAKE ANY GUARANTEES ABOUT THE ACCURACY,
CURRENCY, SUITABILITY, OR QUALITY OF THE REPORTS, AND DOES NOT ASSUME
RESPONSIBILITY FOR INACCURATE OR MISLEADING REPORTS. SUBSCRIBER IS SOLELY
RESPONSIBLE FOR ITS USE OF OR RELIANCE ON ANY SUCH REPORTS OR OTHER
INFORMATION OR DATA ACCESSED THROUGH THE SERVICES. SUBSCRIBER IS SOLELY
RESPONSIBLE FOR ARCHIVING AND RETAINING ANY AND ALL SUBSCRIBER CONTENT OR DATA
UPLOADED TO, DOWNLOADED FROM, OR PROCESSED IN OR THROUGH, THE SERVICES.
6. LIMITATION OF LIABILITY.
EXCEPT WITH RESPECT TO LIABILITY
ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS, A PARTY’S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S
INTELLECTUAL PROPERTY RIGHTS, OR BREACH BY A PARTY OF ITS CONFIDENTIALITY
OBLIGATIONS,
(A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA,
LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOST REVENUE, OR INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION
WITH THIS AGREEMENT, INCLUDING ANY ORDER FORMS AND ALL SERVICES, OR THE USE OF
THE PROPRIETARY ITEMS BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY,
NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND
(B) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT, INCLUDING ANY ORDER
FORMS AND ALL SERVICES, SHALL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY
PAID BY THE SUBSCRIBER TO INSELLIGENCE IN THE TWELVE (12) MONTHS PRECEDING THE
EVENT GIVING RISE TO THE CLAIM OF LIABILITY.
7. CONFIDENTIALITY.
All Confidential Information of a Party
(
“Disclosing Party”) in the possession of the other
(“Receiving Party”), whether or not authorized, shall be held in strict
confidence, and the Receiving Party shall take all steps reasonably necessary
to preserve the confidentiality of the Confidential Information. The
Disclosing Party’s Confidential Information shall not be used or disclosed by
the Receiving Party for any purpose except (a) as necessary to implement or
perform this Agreement or(b) as required by law, provided that the other
Party is given a reasonable opportunity to obtain a protective order. The
Receiving Party shall limit its use of and access to the Disclosing Party’s
Confidential Information to only those of its employees or representatives
whose responsibilities require such use or access and who are bound by
obligations of confidentiality at least as protective as those herein. The
Receiving Party shall advise all such employees and representatives, before
they receive access to or possession of any of the Disclosing Party’s
Confidential Information, of the confidential nature of the Confidential
Information and require them to abide by the terms of this Section.
8. SUBSCRIBER CONTENT AND PROPRIETARY ITEMS
8.1. Subscriber Content.
a) Subscriber acknowledges that all Subscriber Content is the sole
responsibility of the Subscriber. Subscriber, and not Inselligence, is
entirely responsible for all Subscriber Content that Subscriber uploads,
posts, transmits, or otherwise makes available through the Services.
b) Subscriber represents that Subscriber owns and/or has all license rights
necessary to use, license, reproduce, modify, adapt, publish, translate,
create derivative works from, distribute, derive revenue or other remuneration
from, communicate, perform, and display Subscriber Content (including, for the
avoidance of doubt, the CRM Data) in the manner Subscriber will use such
Subscriber Content on or through the Services.
c) Inselligence has no obligation to pre-screen Subscriber Content, although
Inselligence reserves the right in its sole discretion to pre-screen, refuse,
or remove any Subscriber Content. Subscriber hereby provides its irrevocable
consent to such monitoring.
8.2. Title and Ownership.
a) All right, title, and interest in and to the Subscriber Content (including
all related patent, copyright, trademark, trade secret, intellectual property,
and other ownership rights) are and will remain the sole and exclusive
property of Subscriber.
b) All right, title, and interest in and to the Proprietary Items, the Reports
(except any Subscriber Content therein), and Inselligence’s Trademarks
(including all related patent, copyright, trademark, trade secret,
intellectual property, and other ownership rights) are and will remain the
sole and exclusive property of Inselligence and Inselligence reserves all
rights not expressly granted by this Agreement. Any derivative works,
modifications, or enhancements relating to the Proprietary Items (whether
created alone by either Party or jointly by or on behalf of both Parties), the
results of any professional services performed, and any Feedback relating
thereto will be solely and exclusively owned by Inselligence. Subscriber
hereby assigns to Inselligence any right, title, and interest, including all
intellectual property rights in any Feedback, derivative works, modifications,
enhancements, or improvements related to the Proprietary Items that Subscriber
or any of its Authorized Users or representatives provide, propose, create,
conceive, author, or develop relating to this Agreement or their use of the
Proprietary Items. Subscriber will execute and deliver (or cause its
representatives to execute and deliver) any additional documents deemed
reasonably necessary or appropriate to perfect, maintain, protect, or enforce
Inselligence’s rights described above and the intent of this Section.
9. INDEMNIFICATION
9.1. By Inselligence.
Inselligence shall defend at its own
expense any action against Subscriber brought by a third party to the extent
that the action is based upon a claim that the Services infringe any U.S.
copyrights or misappropriates any trade secrets recognized as such under the
Uniform Trade Secrets Act, and Inselligence will pay those costs and damages
finally awarded against Subscriber in any such action that are specifically
attributable to such claim or those costs and damages agreed to in a monetary
settlement of such action. Subscriber agrees to give Inselligence: (a) prompt
written notice of such claim (except that delayed notification will not negate
Inselligence’s obligations if such delay did not materially prejudice
Inselligence’s ability to defend the claim);(b) authority to control and
direct the defense and/or settlement of such claim; and (c) such information
and assistance as Inselligence may reasonably request, at Inselligence’s
expense, in connection with such defense and/or settlement. Notwithstanding
the foregoing, Inselligence shall have no obligation or liability to the
extent that the alleged infringement or misappropriation arises from (1)
Subscriber Content or the combination, operation, or use of the Services with
products, services, deliverables, materials, technologies, business methods or
processes not furnished by Inselligence; (2) modifications which were not made
by Inselligence; or (3) Subscriber’s breach of this Agreement or use of the
Services other than in accordance with this Agreement (collectively,
“IP Exclusions”). Upon the occurrence of any claim for which
indemnification is or may be due under this Section, or in the event that
Inselligence believes that such a claim is likely, Inselligence may, at its
option (i) modify or replace the Services so that they become non-infringing; (ii) obtain a license to the applicable third-party intellectual property; or (iii) terminate this Agreement (or the applicable Order Forms) on written
notice to Subscriber and refund to Subscriber any pre-paid fees for Services
not provided based on the remainder of the then-current Term. The obligations
set forth in this Section shall constitute Inselligence’s entire liability and
Subscriber’s sole remedy for any infringement or misappropriation.
9.2. By Subscriber.
Subscriber shall indemnify, hold
harmless, and, at Inselligence’s option, defend Inselligence from and against
all costs and reasonable expenses (including reasonable attorneys’ fees),
damages, losses, and liabilities for any actions arising out of any (a) IP
Exclusions, or (b) Subscriber Content (including without limitation any third
party claim that any Subscriber Content is false, misleading, disparaging,
infringing, or a misappropriation, as applicable, of any intellectual property
rights of a third party). Inselligence agrees to give Subscriber: (i) prompt
written notice of such claim (except that delayed notification will not negate
Subscriber’s obligations if such delay did not materially prejudice
Subscriber’s ability to defend the claim); (ii) authority to control and
direct the defense and/or settlement of such claim; and (iii) such information
and assistance as Subscriber may reasonably request, at Subscriber’s expense,
in connection with such defense and/or settlement. Notwithstanding the
foregoing, Subscriber shall not settle any third-party claim, unless such
settlement completely and forever releases Inselligence with respect thereto
or unless Inselligence provides its prior written consent to such settlement.
In any action for which Subscriber provides defense on behalf of Inselligence,
Inselligence may participate in such defense at its own expense by counsel of
its choice.
10. TERM AND TERMINATION
10.1. This Agreement shall commence on the Effective Date and shall continue
for one (1) year from the earlier of (i) the date Subscriber elects to
commence the commercial subscription or (ii) the date the Pilot Period expires
(“Initial Term”).
Upon expiration of the Initial Term, this
Agreement shall automatically renew for subsequent one (1) year terms (each a
“Renewal Term”, together with the Initial Term, the
“Term”), unless one Party provides the other Party at least
thirty (30) days written notice prior to the end of the then-current Term of
its intent to not renew the then-current term (“Non-Renewal Notice Deadline”).
10.2. Either Party may terminate this Agreement immediately on giving notice
in writing to the other Party if the other Party:
a) commits a material breach (including any non-payment of fees due) and, in
the case of a material breach capable of being cured,fails to cure that breach
within thirty (30) days after the receipt of a request in writing to cure such
breach; or
b) (i) files for bankruptcy; (ii) becomes or is declared insolvent, or is the
subject of any proceedings related to its liquidation, insolvency, or the
appointment of a receiver or similar officer for it; (iii) makes an assignment
for the benefit of all or substantially all of its creditors; or (iv) enters
into an agreement for the cancellation, extension, or readjustment of
substantially all of its obligations; provided, however, if the
non-terminating party provides adequate assurances regarding its ability to
continue performing the other Party may not terminate.
10.3. If an Order Form is terminated, Subscriber shall immediately discontinue
use of the Services for the applicable Order Form.
Subject to Sections 3.2
(Subscriber Content License), and 3.3 (Data), upon any termination or
expiration of this Agreement, whether under this Section or otherwise, all
access to Services shall immediately terminate and Subscriber shall
discontinue all access and use of all Proprietary Items, and each Party shall
promptly return or destroy (at the election of the other Party) any
Confidential Information of the other Party then in such Party’s possession or
control.
10.4. Subscriber shall remain liable for all unpaid payments due to
Inselligence with respect to the period ending on the date of termination or
expiration of the Agreement or any applicable Order Forms.
In the event this
Agreement is terminated by Subscriber in accordance with Section 10.3. (a) for
Inselligence’s material breach, Inselligence shall refund to Subscriber any
pre-paid fees for Services not provided for any applicable Order Forms based
on the remainder of the then-current Term. Except in the event this Agreement
is terminated in accordance with Sections 2.4 (Termination of Evaluation
License) or 10.3 (a) for Subscriber’s material breach, Inselligence will make
Analytics Data and Reports available to Subscriber for thirty (30) days after
termination or expiration of this Agreement. The provisions of Sections 1,
2.4, the perpetual terms of Sections 3.1 (ii), 3.2(b), 3.3, 3.4, 5, 6, 7, 8, 9,
10.4, and 11 shall survive any termination or expiration of this Agreement.
11. OTHER PROVISIONS
11.1. Publicity.
Subscriber authorizes Inselligence to use
Subscriber’s name in any routine list of Inselligence Subscribers and as a
reference. Each Party, with prior written consent of the other Party, may
publicize the Services to be offered under this Agreement in its marketing and
advertising material, and may reproduce the company name, logo, trademark,
trade name, service mark, or other commercial or product designations of the
other Party in connection therewith; provided, however, that such prior
written consent shall not be required for either Party to give the other’s
name and disclose this Agreement in connection with any filings or press
releases which it deems in its good faith discretion to be necessary under
federal or state securities laws.
11.2. Notice.
All notices, consents, and other communications
under or regarding this Agreement shall be in writing and shall be deemed to
have been received on the earlier of the date of actual receipt or the first
business day after being sent by a reputable overnight delivery service.
Either Party may change its address for notices by giving written notice of
the new address to the other Party.
11.3. Assignment.
Subscriber may not, without Inselligence's
prior written consent, assign, delegate, pledge, or otherwise transfer this
Agreement, any Order Forms, or any of its rights or obligations under this
Agreement, including with respect to any Order Forms to any third party,
whether voluntarily or by operation of law. A sale of assets, merger, or
consolidation will be deemed an assignment for the purposes of this Agreement.
Any attempted assignment in violation of the foregoing will be null and void.
11.4. Governing Law and Venue.
This Agreement shall be
construed and enforced in accordance with the laws of the state of Delaware
excluding choice of law; provided, however, that the terms of any applicable
law now or hereafter enacted that is based on or similar to the uniform
computer information transactions act drafted by the national conference of
commissioners on uniform state laws shall not apply. Each Party irrevocably
agrees that any legal action, suit or proceeding brought by it that in any way
arises out of the Agreement must be litigated exclusively in state or federal
courts located in Miami-Dade County, Florida.
11.5. Force Majeure
Except with respect to Subscriber’s
payment obligations, neither Party shall be liable for, nor shall either Party
be considered in breach of this Agreement due to any failure to perform its
obligations under this Agreement as a result of a cause beyond its control,
including any act of God or a public enemy, act of any military, civil or
regulatory authority, change in any law or regulation, fire, flood,
earthquake, storm or other like event, disruption or outage of communications
(including the Internet or other networked environment), power or other
utility, labor problem, unavailability of supplies or any other cause which
could not have been prevented by the non-performing Party with reasonable
care.
11.6. Export Laws and Use Outside of the United States.
Subscriber
shall comply with all applicable export-related laws and regulations.
Subscriber shall not export or re-export directly or indirectly (including via
remote access) any Proprietary Items (or parts thereof) to any applicable
jurisdiction or entity prohibited by law or to which a license is required
without first obtaining a license from the applicable regulatory authority.
Subscriber will defend, indemnify and hold harmless Inselligence from and
against any violation of such laws or regulations by Subscriber or any of its
agents, officers, directors, or employees.
11.7. Relationship.
The relationship between the Parties
under this Agreement is that of independent contractors and not partners,
joint venturers, or agents.
11.8. Waiver.
No waiver of any breach of this Agreement shall
be effective unless in writing and signed by an authorized representative of
both Parties. No waiver of any breach of this Agreement, and no course of
dealing between the Parties, shall be construed as a waiver of any subsequent
breach of this Agreement.
11.9. Order of Precedence.
In the event of a conflict between
the provisions of the Agreement and the terms of any Order Form, the Agreement
shall control. Any pre-printed terms in an order document or written purchase
authorization that add to, conflict with, or contradict any provisions in the
Agreement will have no legal effect.
11.10. Communications.
The communications between you and
Inselligence relating to the Services use electronic means. For contractual
purposes, you (a) consent to receive communications from Inselligence in an
electronic form, whether via email or posting on the Services or other
reasonable means; and (b) agree that all terms and conditions, agreements,
notices, disclosures, and other communications that we provide to you
electronically satisfy any legal requirement that such communications would
satisfy if it were in writing. If you have any questions about the foregoing,
please contact Inselligence at the following email address:
[help@stageinselli.wpenginepowered.com].
11.11 Interpretation.
The Section headings of this Agreement
are for convenience and will not be used to interpret this Agreement. As used
in this Agreement, the word “including” means “including but not limited to.”
11.12. Severability.
If any portion of any provision of this
Agreement is held to be illegal, invalid or unenforceable, in whole or in
part, (a) such unenforceable portion of the provision will be deemed severed
from this Agreement, (b) the validity and enforceability of the remaining
portion of the provision and the other provisions of this Agreement will not
be affected or impaired, and (c) this Agreement will be amended in order to
effect, to the maximum extent allowable by law, the original intent of such
provision.
11.13. Entire Understanding.
This Agreement states the entire
understanding between the Parties with respect to its subject matter and
supersedes all prior proposals, marketing materials, negotiations, and other
written or oral communications between the Parties with respect to the subject
matter of this Agreement.