THIS AGREEMENT is made between Intellizence, Inc.,(“Intellizence”) and the Customer that has entered into a mutually binding Order with Intellizence (“Customer”). These Terms and Conditions are the Terms and Conditions referred to and incorporated by reference into the Order.BACKGROUND
A. Intellizence has developed a subscription service offering that allows its Customers to obtain in-depth and timely information about companies, organizations and products that its Customers want to know more about.
B. The information is curated and delivered to the Customers by various methods that might include any of a web application, email, mobile app, Rest API and/or Plugin.
This Agreement, including the appendix (es) hereto, (collectively, the “Agreement”) sets out the provisions pursuant to which the Customer is entitled to utilize the Services.
Article 1 DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions
Unless the context otherwise specifies or requires, for the purposes of this Agreement all capitalized terms set out herein shall have the meanings set forth below:
“Disclosing Party” means a party to this Agreement that discloses, either directly or through agents, Confidential Information to a Receiving Party;
“Fees” means the fees to be paid to Intellizence by Customer pursuant to Section 4.01;
“Force Majeure Event” has the meaning ascribed thereto in Section 9.01;
“Initial Term” has the meaning set out in Section 8.01
“Receiving Party” means a party to this Agreement that receives Confidential Information from a Disclosing Party;
“Representative” means any employee, agent, independent contractor, accountant, auditor, counsel, banker, lender or other advisor of a party to this Agreement;
“Services” means Intellizence’s (or related third party’s) subscription services, packaged professional services, linked pages, content, products and offline components;"
“Target” means a company that Customer has listed as the object of the Services. There can be more than one Target, to the extent outlined in Appendix A.
“Term” means the duration of Customer’s subscription for the Services, beginning with the Initial Term, and, after the Initial Term, annually at the will of Customer and Intellizence as more particularly set out in Section 8.01;
“Target Data” means the information conveyed by Intellizence to Customer concerning Customer’s Targets.
“Users” means individuals who are Customers’ employees, agents or contractors and who are authorized to access the Services on Customer’s behalf.
Section 1.02 Construction of Agreement
In this Agreement:
(a) all usage of the word “including” or the phrase “e.g.” in this Agreement shall mean “including, without limitation” throughout this Agreement;
(b) words or abbreviations which have well known or trade meanings are used herein in accordance with their recognized meanings; and
(c) the terms and conditions hereof are the result of negotiations between the parties and this Agreement shall not be construed in favor of or against any party by reason only that a party or its professional advisors participated in the preparation of this Agreement.
Article 3 RESERVED RIGHTS
Section 3.01 Reserved Rights
Intellizence shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Target Data and data derived therefrom), and Intellizence will be free (during and after the term hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Intellizence offerings.
Section 3.02 Usage Restrictions and Representations
Article 4 PAYMENT TO INTELLIZENCE
Section 4.01 Payment to Intellizence
In consideration of the provision of the Services by Intellizence, Customer shall pay the Fees set forth in Appendix A. Unless otherwise specified in Appendix A, all Fees are due and payable on the first day of any month in which the Services are to be rendered. Customer shall pay interest to Intellizence on any overdue amounts owing to Intellizence at the rate of 1 percent per month (12 percent per annum), compounded annually. In addition to any and all remedies available to Intellizence, Intellizence may engage in collection efforts to recover amounts owing from Customer and the cost of such collection efforts shall be paid by Customer.
All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Intellizence’s income), even if such amounts are not listed on an Appendix A. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
If at any time Customer is exceeding the Usage Rights, Intellizence shall notify Customer and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days of receipt of Intellizence, Inc.’s notice, Intellizence, Inc. reserves the right to charge and Customer agrees to pay Intellizence’s then current usage fees for such overage.
Article 5 INTELLECTUAL PROPERTY OWNERSHIP
Section 5.01 Intellectual Property
Intellizence owns and will own all intellectual property rights in the Services, the underlying software, and any trademarks associated therewith. Additionally, Intellizence shall own and retain all right, title and interest, and all intellectual property rights related, in and to all improvements, enhancements or modifications to any of the foregoing, and any software, applications, inventions or other technology developed in connection with the Services.
Article 6 CONFIDENTIALITY
Section 6.01 Confidentiality Covenant
Each party acknowledges that it would be damaging to the other party if the other party’s Confidential Information were disclosed to or obtained by third parties. Accordingly, each party shall make all reasonable efforts during the term of this Agreement and thereafter to prevent the other party’s Confidential Information from being disclosed to or obtained by any person or entity for any purpose except as described in this Article 6. Each party’s efforts will not be less than those that it takes to prevent disclosure of its own proprietary information of like significance. The Receiving Party will be responsible for breaches by its Representatives of this Article 6. Without limiting the generality of the foregoing, Intellizence will keep confidential all Confidential Information furnished to it or its Representatives and will use such Confidential Information solely for the purpose of providing the Services.
Section 6.02 Permitted Disclosure
It is not a breach of Section 6.01 to disclose Confidential Information required to be disclosed by law, judicial or arbitration process or by governmental authorities, provided that the Receiving Party first gives the Disclosing Party reasonable notice of such law, order or process and takes all reasonable steps to restrict such disclosure and protect the confidentiality to the extent possible.
Article 7 DISCLAIMER
Section 7.01 Disclaimer
Intellizence shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services. However, the Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Intellizence or by third-party providers, or because of other causes beyond Intellizence’s reasonable control, but Intellizence shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, INTELLIZENCE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES. INTELLIZENCE DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH CUSTOMER’S HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF CUSTOMER, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED, (E) THE SERVICES ARE NON-INFRINGING, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABLE QUALITY (OR MERCHANTABILITY, IN SOME JURISDICTIONS), FITNESS FOR A PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, ARE HEREBY DISCLAIMED BY INTELLIZENCE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Section 7.02 Limitation of Liability
Notwithstanding anything to the contrary, Intellizence and its Representatives shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond Intellizence’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the Fees paid by Customer to Intellizence for the Services under this Agreement in the 3 months prior to the act that gave rise to the liability, in each case, whether or not Intellizence has been advised of the possibility of such damages.
Article 8 TERM AND TERMINATION
Section 8.01 Term
The Term commences upon acceptance of this Agreement and continues for the period set out in Appendix A(the “Initial Term”). After the passage of the Initial Term, the Term may be extended, if the parties both agree, for additional periods of 1 year each, beginning on the day following the last day of the Term then ending. The Customer shall notify Intellizence by email no less than 30 days prior to the end of the Term then ending if Customer wishes to extend the Term. Upon any extension of the Term beyond the Initial Term, the parties shall amend and update the Fees set forth in Appendix A (in the event of any changes thereto).
Section 8.02 Rights of Termination
Either party may terminate this Agreement by reason of the uncured breach of this Agreement by the other party. Customer may terminate this Agreement upon 60 days’ notice for convenience and without penalty or refund.
Section 8.03 Notice of Termination
Any termination hereof shall be by written notice of the terminating party to the other party setting out, as the case may be, the Intellizence Event of Default or Customer Event of Default that has given rise to the right of termination.
Article 9 GENERAL
Section 9.01 Force Majeure
Neither party shall be liable to the other for any delay or failure to perform due to fire, flood, earthquake, acts of God, acts of war, riots, civil disorder, strikes, lock-outs or labor disruptions, the failure of telecommunications systems or any other cause whether similar or dissimilar beyond its reasonable control (a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance of those of its obligations pursuant to this Agreement affected by the Force Majeure Event only for so long as such Force Majeure Event continues and such party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay.
Section 9.02 Notices
All notices, requests, approvals, consents and other communications required or permitted under this Agreement shall be in writing and addressed as follows:
(a) if to Customer, to the address given by Customer to Intellizence upon subscription for the Services.
(b) if to Intellizence, Email: sales@Intellizence.com
and shall be sent by email. Either party may change its email address for notice purposes by giving the other party notice of the new email and the date upon which it will become effective. A communication shall be deemed to have been received as of the next business day following its transmission if transmitted after 4 p.m. Eastern Time.
Section 9.03 Relationship
Except as expressly set out herein, nothing contained in this Agreement shall create or imply any agency relationship between the parties nor shall this Agreement be deemed to constitute a joint venture or partnership between the parties.
Section 9.04 Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which they are invalid or unenforceable, shall not be affected thereby, and each such provision shall be valid and enforceable to the extent granted by law.
Section 9.05 Entire Agreement
This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof, and there are no other representations, understandings or agreements between the parties relating to the subject matter hereof.
Section 9.06 Governing Law
This Agreement shall be governed by the laws of California and the applicable federal laws of the United States, excluding their rules governing conflicts of laws.