Terms and Conditions

1. DEFINITIONS

   The following terms have the following meanings:

   1. “Authorized User” means any employees, independent contractors, agents or representatives of Customer, subject to any limitations or restrictions set forth on an Order.
   2. “Customer Content” means any information, data, text, logos, pictures, or other materials or content provided by Customer in connection with Customer’s use of the Services, including but not limited to employee data or other data of Authorized Users provided directly by Customer.
   3. “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. 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 Customer.
   4. “Documentation” means Intelas’ on-line documentation, as updated and amended from time to time.
   5. “Order Form” means an order form that is signed by both Parties and references this Agreement.
   6. “Services” means any services provided by Intelas to Customer under this Agreement as set forth in an Order Form.

2. PROVISION OF SERVICES; INTELLECTUAL PROPERTY

   1. Subscription Rights. Intelas hereby grants to Customer and its Authorized Users a non-exclusive, non-transferable (except in connection with a permitted assignment) license during the Term to access and use the Services in accordance with the Documentation and subject to the limitations set forth on the applicable Order Form.
   2. Intelas Obligations Intelas shall host, operate, maintain, and support the Services, including any Customer Content uploaded, posted, or otherwise transmitted to the Services by Customer or its Authorized Users. Intelas shall use commercially reasonable efforts to provide to Customer standard support for the Services at no additional charge. Intelas shall have no obligation to provide any additional services to Customer, including, training, implementation, or any support or maintenance in excess of Intelas’ standard support policy, unless Customer purchases such services as set forth in an Order Form. From time to time in accordance with Intelas’ generally applicable procedures, Intelas may make available to Customer updates, upgrades, enhancements, and error corrections to the Services that Customer has purchased at no additional charge when such updates, upgrades, enhancements and error corrections are generally made available to its other Customers at no additional charge.
   3. Usernames and Passwords. Subject to any user limitations set forth in the applicable Order Form, Customer 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 e-mail address and password may only be used to access the Services during one (1) concurrent login session. Customer will ensure that each e-mail address and password issued to an Authorized User will be used only by that Authorized User. Customer is responsible for maintaining the confidentiality of all Authorized Users’ passwords, and is solely responsible for all activities that occur under these accounts. Customer agrees: (a) not to allow a third party to use Customer’s accounts at any time; and (b) to notify Intelas promptly of any actual or suspected unauthorized use of an account or any other breach or suspected breach of this Agreement. Intelas reserves the right to terminate any accounts that Intelas 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. Customer 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.
   4. Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Services or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Services or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (e) interfere in any manner with the operation of the Services or the hardware and network used to operate the Services; (f) modify, copy or make derivative works based on any part of the Services or Documentation; (g) access or use the Services to build a similar or competitive product or service; (h) attempt to access the Services through any unapproved interface; or (i) otherwise use the Services or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the Services will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions.
   5. Ownership. The Services and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Intelas and its suppliers. All rights in and to the Services and Documentation not expressly granted to Customer in this Agreement are reserved by Intelas and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, Documentation, or any part thereof.
   6. Feedback. Customer hereby grants to Intelas a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Intelas will not identify Customer as the source of any such feedback.

3. CUSTOMER CONTENT AND RESPONSIBILITIES

   1. License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Intelas to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Intelas to use the Customer Content submitted by or on behalf of Clients for the purposes set forth in this Agreement. Customer grants Intelas a non-exclusive license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services, and use the Customer Content to improve the Services and Intelas’ related products and services. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Intelas in this Agreement are reserved by Customer.
   2. Customer Responsibilities. Customer shall (a) be responsible for Authorized Users’ acts and omissions, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Intelas 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 Intelas as necessary for Intelas to perform its obligations under this Agreement, and (e) be responsible for all Customer Content, including the accuracy thereof and all rights necessary to use, distribute, and otherwise disseminate such Customer Content for the purposes contemplated under this Agreement. Customer represents and covenants that Customer will secure any necessary consents from its Authorized Users (i) in order to allow Intelas to fulfill its obligations under this Agreement and (ii) to collect, use, and disclose Data in accordance with the terms of this Agreement and Intelas’ privacy policy.

4. PAYMENTS

   1. Customer will pay to Intelas, without offset or deduction, all fees due under this Agreement, including those listed on the Order Form. All payments will be in U.S. dollars. Unless otherwise specified, all fees shall be due and payable monthly in advance. Customer will be solely responsible for all applicable taxes or other governmental fees, charges, or assessments, other than taxes on Intelas’ net income, imposed on or resulting from the Service provided by Intelas under this Agreement. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.

5. DISCLAIMER

   1. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Services AND Documentation ARE PROVIDED “AS IS,” AND INTELAS MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. INTELAS DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
   2. Third-Party Integrations. The Services may contain data, links or connections to or from third party websites, products or services that are not owned or controlled by Intelas (“Third Party Integrations”). When Customer accesses or uses Third Party Integrations, Customer accepts that there are risks in doing so, and that Intelas is not responsible for such risks. Intelas also encourages Customer to read the terms and conditions and privacy policy of all Third Party Integration service providers that you visit or utilize. Intelas has no control over, and assumes no responsibility for, the information, accuracy, privacy policies, or practices of or opinions expressed in any Third Party Integrations. In addition, Intelas will not and cannot monitor, verify, censor or edit communications, information or data to or from third parties (“Third Party Communications”) of any Third Party Integrations. By using the Services, Customer releases and holds Intelas harmless from any and all liability arising from Customer’s access to or use of any Third Party Integrations or from engaging in any Third-Party Communications.

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 ALL ORDER FORMS, 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 all Order Forms, shall under no circumstances exceed the fees actually paid by the Customer to Intelas 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. Indemnification

   1. By Intelas. Intelas shall defend at its own expense any action against Customer 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 Intelas will pay those costs and damages finally awarded against Customer 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. Customer agrees to give Intelas: (a) prompt written notice of such claim (except that delayed notification will not negate Intelas’ obligations if such delay did not materially prejudice Intelas’ 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 Intelas may reasonably request, at Intelas’ expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Intelas shall have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (1) Customer Content or the combination, operation, or use of the Services with products, services, deliverables, materials, technologies, business methods or processes not furnished by Intelas; (2) modifications which were not made by Intelas; or (3) Customer’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 Intelas believes that such a claim is likely, Intelas 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 Customer and refund to Customer 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 Intelas’ entire liability and Customer’s sole remedy for any infringement or misappropriation.
   2. By Customer. Customer shall indemnify, hold harmless, and, at Intelas’ option, defend Intelas 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) Customer Content. Intelas agrees to give Customer: (i) prompt written notice of such claim (except that delayed notification will not negate Customer’s obligations if such delay did not materially prejudice Customer’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 Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim, unless such settlement completely and forever releases Intelas with respect thereto or unless Intelas provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Intelas, Intelas may participate in such defense at its own expense by counsel of its choice.

9. TERM AND TERMINATION

   1. This Agreement shall commence on the Effective Date and shall continue for a period equal to the Pilot Term plus the Commercial Term (collectively the “Initial Term”), as described in the Order Form.
   2. Upon expiration of the Initial Term, the Agreement shall renew for a specified to a period of time as described in the Order Form (each a “Renewal Term”, together with the Initial Term, the “Term”).
   3. Either Party may terminate any Order Form or 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, failed 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.
   4. If an Order Form is terminated, Customer shall immediately discontinue use of the Services for the applicable Order Form. Subject to Sections 4.1, upon any termination or expiration of this Agreement, whether under this Section or otherwise, all Order Forms shall immediately terminate, 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.
   5. Customer shall remain liable for all unpaid payments due to Intelas 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 Customer in accordance with Section 10.3(a) for Intelas’ material breach, Intelas shall refund to Customer any pre-paid fees for Services not provided for any applicable Order Forms based on the remainder of the then current Term. The provisions of Section 1, the perpetual terms of Sections 2.1 and 3, 2.2, 2.3, 2.4, 5.1, 6, 7, 8, 9.4, 9.5 and 10 shall survive any termination or expiration of this Agreement.
10. OTHER PROVISIONS. This Agreement shall be governed in all respects by Delaware law, excluding any conflict of laws principles that would require the application of the laws of another jurisdiction. The parties hereby submit to the personal jurisdiction of the state and federal courts in New York, New York. This Agreement is the entire agreement between the Parties related to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings and discussions. The Agreement cannot be amended except by a writing signed by both Parties. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force. No waiver hereunder will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Nothing in this Agreement will be construed to create any agency, partnership, or joint venture between the Parties, and neither Party will represent itself as an agent or legal representative of the other Party. All notices, requests, and other communications to the other Party hereunder will be in writing and given at the address set forth on the Order Form. Customer may not assign Customer’s rights hereunder without Intelas’ consent. Absent such consent, any attempted assignment or delegation will be null and void. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which together will constitute one instrument.