Intellective Terms of Use

Definitions. Capitalized terms used in this Agreement shall have the meaning set forth in this Section 1 or as otherwise defined in the Agreement.

“Agreement” means collectively these Intellective Terms of Use, Order(s), any SOW(s), and all schedules, attachments, and exhibits thereto and additional terms referenced therein. Other agreements executed by Customer and Intellective that expressly reference the Agreement shall also be deemed part of the Agreement.

“Affiliate” means, with respect to a Party: (a) any Person that directly or indirectly controls, is controlled by or is under common control with that Party; or (b) any Person who is an officer, director, trustee, member or general partner of, or serves in a similar capacity with respect to, that Party.

“Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use Intellective Products under the rights granted to Customer pursuant to the Agreement, and for whom access to Intellective Products has been purchased hereunder.

“Confidential Information” means, with respect to Intellective, all information which Intellective protects against unrestricted disclosure to others, including but not limited to: (a) Intellective Products and Documentation, including without limitation the following information regarding Intellective Products: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Intellective Products ; (ii) benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications, file formats; and (iii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to Intellective Products; (b) the research and development or investigations of Intellective; (c) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, marketing plans, forecasts and strategies; and (d) any information about or concerning any third party (which information was provided to Intellective subject to an applicable confidentiality obligation to such third party). With respect to Customer, “Confidential Information” means all information which Customer protects against unrestricted disclosure to others and which (i) if in tangible form, Customer clearly identifies in writing as confidential or proprietary at the time of disclosure; and (ii) if in intangible form (including disclosure made orally or visually), Customer identifies as confidential at the time of disclosure, summarizes the Confidential Information in writing, and delivers such summary within thirty (30) calendar days of any such disclosure.

“Customer Data” means all data, Personal Data, records, files, information or content, including text, sound, video, images and software, that is (a) input or uploaded by Customer or its Authorized Users to or collected, received, transmitted, processed, or stored by Customers or its Authorized Users using Intellective Products in connection with the Agreement, or (b) derived from the activities described in clause (a). Customer Data is Confidential Information of Customer. Customer Data does not include Usage Data.

“Customer IP” means those deliverable(s), if any, expressly identified in a SOW, as between Customer and Intellective, to be owned exclusively by Customer.

“Documentation” means the user manuals and training materials, but not advertising or promotional materials, provided by Intellective for use with Intellective Products or Professional Services.

“Intellective Products” means Licensed Software and Software Services as may be set forth in the applicable Order.

“Intellective Systems” means the information technology infrastructure and systems used by or on behalf of Intellective to provide access to the Software Services and perform any Services hereunder, whether operated directly by Intellective or through the use of third-party services.

“Intellectual Property Rights” means all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure, and all other proprietary rights.

“Licensed Software” means certain software programs of Intellective provided in object code format, as may be set forth in an Order.

“Order” means an ordering document governed by the Agreement by which Customer purchases Intellective Products and/or Professional Services.

“Person” means any natural person or business entity or any government or political subdivision, or any agency, department or instrumentality thereof.

“Personal Data” means any data 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.

“Professional Services” means any training, managed services, custom software development, or consulting services that Intellective may agree to provide Customer pursuant to an Order and as may be more specifically described in a SOW. Professional Services specifically excludes Support Services.

“Release” means any upgrade, enhancement or new version of Intellective Products and which may include error corrections. In the event of a dispute as to whether a particular modification is a Release, an error correction or a new product, Intellective’s determination will be dispositive.

“Sensitive Data” means “sensitive personal information” or “special categories of personal data” as defined under applicable US and non-US data protection or data privacy laws, protected health information regulated by the Health Insurance Portability and Accountability Act (as amended), or other information subject to additional protections or regulation under laws such as the Children’s Online Privacy Protection Act or the Gramm-Leach-Bliley Act and related regulations.

“SOW” means those statements of work between Customer and Intellective which Customer may enter into from time to time for Professional Services to be provided by Intellective on terms mutually agreed to in writing in the SOW and signed by each Party.

“Software Services” means certain software and technology to which access is made available as a service, as may be set forth in an Order.

“Support Services” means routine software maintenance and support services that Intellective makes available for Intellective Products as described in Section 8.

“Terms” means these Intellective Terms of Use.

“Usage Data” means data and information collected from or related to Customer’s use of any Intellective Products or Professional Services that is used by Intellective in an aggregated and anonymized manner.

“Work Product” means any content, technology or other subject matter of any nature whatsoever that is conceived, created, developed or otherwise provided or made available by Intellective in providing services to Customer, including without limitation any Releases, Documentation, training materials and customized features of Intellective Products developed for Customer or at Customer’s request or suggestion and any other deliverable of any kind provided by Intellective to Customer pursuant to the Agreement (other than Customer IP).

Intellective Products.

Orders.

Subject to the terms and conditions of the Agreement, Customer may from time to time place Orders with Intellective to purchase the non-exclusive, non-transferable right to access Intellective Products and Professional Services. Orders are governed by the Agreement, must be signed by each of Customer and Intellective to be effective, and shall specify, as applicable: (a) the Licensed Software and/or Software Services that Customer wishes to access; (b) the number of Authorized Users; and (c) any Professional Services to be provided by Intellective to Customer. All Orders signed by Customer and Intellective are deemed incorporated by reference into the Agreement.

SOWs.

Should Customer purchase any Professional Services, the nature of the Professional Services and, if applicable, any Customer IP, as well as the timing, cost and payment schedule with respect to the Professional Services shall be as mutually agreed upon and set forth in individual SOWs. No SOW shall be binding until executed by both Intellective and Customer. All SOWs signed by Customer and Intellective are governed by the Agreement and are deemed incorporated by reference into the Agreement.

Financial Terms.

Fees.

Fees for Intellective Products, Support Services, and Professional Services (as applicable) provided hereunder shall be as set forth in the Order; provided, however, if Customer has purchased third-party software, products or services through Intellective, Intellective reserves the right to modify the fees set forth in the Order to account for any increases from such third parties. Intellective may increase fees annually by providing notice at least 30 days before the end of the Initial Term or then-current Renewal Term. Unless otherwise set forth in an Order, such changes will not affect pricing during the Initial Term or then-current Renewal Term and will become effective upon renewal. Intellective further reserves the right at any time to increase fees and/or require the purchase of additional Authorized Users in the event that Customer makes excessive or extraordinary use of the Intellective Products or uses it for tasks outside of standard processes. Unless expressly stated otherwise in an Order or SOW, all fees are in United States dollars.

Payment Terms.

Unless otherwise specified in an Order: (a) all Intellective Products fees shall be due and payable upon receipt of the Order; and (b) all other fees and expenses are due within 30 days after the date of invoice by Intellective. Fees and expenses not paid when due will accrue interest from the date due until paid at an annual rate equal to 1.5% per month, or the highest rate permissible under applicable law, whichever is less.

Taxes.

All fees are exclusive of, and Customer shall be responsible for the payment of, all applicable taxes, levies and duties associated therewith, however designated or levied by any taxing authority, and any fines, interest or penalties associated with the nonpayment or late payment of such taxes, but excluding any taxes based on Intellective’s net income.

Use of Licensed Software and Software Services.

Access.

Any grants of access or licenses are limited to the Intellective Products set forth on the Order, and such Intellective Products may be used solely for Customer’s own internal business purposes and in accordance with the Documentation. Intellective Products may be accessed only by Authorized Users engaged in standard processes in the ordinary course of business. Access to Intellective Products may not be re-assigned or transferred to other Authorized Users except in the event of an Authorized User’s departure from employment or other engagement with Customer.

Suspension.

Notwithstanding anything to the contrary in the Agreement, Intellective may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of Intellective Products (in each case, a “Service Suspension”) if: (i) Provider reasonably determines that (A) there is a threat or attack on any Intellective Product; (B) Customer’s or any Authorized User’s use of any Intellective Product disrupts or poses a security risk to the Intellective Product or to any other customer or vendor of Intellective; (C) Customer, or any Authorized User, is using any Intellective Product for fraudulent or illegal activities or is making excessive or extraordinary use of any Intellective Product or using it for tasks outside of standard processes; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Intellective’s provision of access to any Intellective Product to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor or service provider of Intellective has experienced any failure or delay with respect to, or suspended or terminated Intellective’s access to or use of, any third-party services or products required to enable Customer to use any Intellective Product ; or (iii) in the event of any nonpayment of fees as set forth in the Agreement. Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

Third-Party Products.

Customer acknowledges that in addition to entering into the Agreement and any Orders or SOWs, Customer may be required to purchase license or access rights from one or more third-party vendors. Intellective will inform Customer when any such additional rights are required, but Customer shall be responsible for obtaining such rights directly from such third-party vendors. Intellective shall not be responsible for the performance of any third-party vendors or products.

Prohibited Activities.

Customer acknowledges that the Intellective Products and their organization and source code constitute valuable trade secrets of Intellective. Customer acknowledges that nothing herein will be construed to grant Customer any right except as expressly granted under the Agreement. Customer further acknowledges that capacity of Software Services and related systems has been allocated to Customer in accordance with the number of Authorized Users performing standard processes in the ordinary course of business. Accordingly, Customer agrees not to: (a) copy, modify, adapt, translate, or create derivative works of any Intellective Product; (b) merge any Intellective Product with other software other than as may be described in the Documentation or as approved in writing by Intellective; (c) license, lease, rent, loan, or otherwise transfer or make available the Intellective Products to any third-party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any Intellective Product, except and only to the extent that such activity is expressly permitted by law; (e) remove, alter, or obscure any confidentiality or proprietary notices of Intellective or its suppliers on any Intellective Product or Documentation; (f) allow third-parties to access or use any Intellective Product such as in a time-sharing arrangement or operate any Intellective Product as part of a service bureau or otherwise for the use or benefit of third-parties; (g) disclose performance benchmark results for any Intellective Product without Intellective’s prior written consent; (h) bypass or breach any security device or protection used in connection with any Intellective Product or Documentation; (i) use any Intellective Product in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or that violates any applicable law; (j) use any Intellective Product in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of any Intellective Product could lead to personal injury or severe physical or property damage; (k) make excessive or extraordinary use of any Intellective Product or use it for tasks outside of standard processes; or (l) otherwise use any Intellective Product except as expressly allowed in the Agreement. Customer acknowledges that any license of Licensed Software is limited to object code and does not include the right to develop or modify custom user interfaces or other customizations. Any such rights shall be subject to the separate advance written agreement of Customer and Intellective.

Security and Self-Reporting Technology.

Customer acknowledges that Intellective Products may contain self-reporting technology and other security or technological measures by which Intellective may collect, maintain, process and use diagnostic, technical, usage, and other information deemed relevant by Intellective to providing Support Services, improving Intellective Products, monitoring compliance, preventing unauthorized or illegal use of Intellective Products, and any other purposes as determined by Intellective in its reasonable discretion. Customer shall not tamper with or attempt to disable such technology. Intellective may deny any Authorized User or other individual access to and/or use of Intellective Products if Intellective, in its reasonable discretion, believes that person’s use of Intellective Products would violate any provision of the Agreement.

Audit Rights.

Customer agree to create, retain and provide to Intellective and its auditors accurate written records and other system information sufficient to provide auditable verification that Customer’s use of all Intellective Products is in compliance with the Agreement. Upon reasonable notice, Intellective may verify Customer’s compliance with the Agreement at all sites and for all environments in which Customer uses Intellective Products. Such verification will be conducted in a manner that minimizes disruption to Customer’s business, and may be conducted on Customer’s premises, during normal business hours. Intellective may use an independent auditor to assist with such verification, provided Intellective has a written confidentiality agreement in place with such auditor. Intellective will notify Customer in writing if any such verification indicates that Customer have used any Intellective Product in excess of Customer’s purchased use rights or otherwise not in compliance with the Agreement. Customer agrees to promptly pay directly to Intellective the charges that Intellective specifies in an invoice for (a) such excess use, (b) support for such excess use for the lessor of the duration of such excess use or two years, and (c) any additional charges and other liabilities determined as a result of such verification. Intellective reserves the right to include as part of Intellective Products access restriction devices and methods designed to prohibit unauthorized access to its copyright library, proprietary information, trade secrets and other intellectual property rights in Intellective Products. Such methods may include the ability for Intellective to access and pull data from the Intellective Products as reasonably necessary to determine Customer’s compliance with the Agreement.

Support Services.

Releases.

Provided that Customer is entitled to Maintenance Services, and so long as Customer is not in default hereunder, Intellective will make available to Customer any Release for Intellective Products that Intellective makes generally commercially available to its end user customers. Intellective does not promise or warrant that a certain number of Releases (or any Releases) will be made available during a particular time period. Maintenance Services will only be provided for the current Release of any Intellective Products. Intellective may change Maintenance Services from time to time without the consent of Customer. All Releases shall be deemed part of Intellective Products.

Availability.

All Maintenance Services shall be provided remotely by Intellective via our support portal or via email and may be provided from within or outside the United States. Maintenance Services shall be provided by Intellective during Intellective’s normal business hours (Monday through Friday, 8:00 a.m. EST. to 5:00 p.m. PST). Maintenance Services may be delivered remotely over the internet through the use of remote access software and/or by technological measures designed to collect and transmit to Intellective certain diagnostic, technical and related information. Customer acknowledges that Intellective may collect, maintain, process and use this information.

Equipment.

Intellective Products may require a server, internet connection, operating system, application runtime, application container, containerization platform, database, or other dependent components. Maintenance Services do not include support for dependent components and any services for such components shall be set forth (including any applicable fees) as Professional Services in a SOW.

Delivery.

As applicable, Intellective will make available the Software Services by providing initial login credentials or will deliver Licensed Software by enabling an electronic transmission or download, or by other means mutually agreed upon in writing by the parties, together with the relevant Documentation (“Delivery”), within 5 days following receipt of the applicable fees.

Product Warranty.

Software Services Warranty.

Intellective warrants to Customer that the Software Services will perform in substantial accordance with the Documentation made available with such Software Services when operated and used as recommended in the Documentation and in accordance with the Agreement.

Licensed Software Warranty.

Intellective warrants to Customer that: (A) for a period of 90 days from the date of initial Delivery that Licensed Software will perform in substantial accordance with the Documentation delivered with such Licensed Software when installed, operated, and used as recommended in the Documentation and in accordance with the Agreement; and (B) prior to general release of each new version of Licensed Software, Intellective shall have screened such Licensed Software with then-currently available virus detection software. The warranty set forth in subpart (A) only applies to Customer’s initial Delivery of Licensed Software. Should Customer later purchase additional licenses to Licensed Software or renew current licenses, all such additional purchases and renewals are not subject to this warranty.

Exceptions to Product Warranty.

Notwithstanding the foregoing, the warranties set forth above does not apply to problems arising out of or relating to accident, misuse, misapplication, operation or use of any Intellective Product other than as specified in the Documentation, combination of any Intellective Product with other technology not specified or recommended in the Documentation, failure to promptly implement Releases, the operation of or access to Customer’s or a third party’s software, hardware, system or network (including without limitation any hosting provider), Customer’s material breach of the Agreement, or any other cause external to any Intellective Product or outside the reasonable control of Intellective.

Remedy for Breach of Product Warranty.

Intellective’s exclusive liability and Customer’s sole and exclusive remedy for breach of the provisions of this Warranty section shall be, at Intellective’s option, to: (A) restore access to the Software Services or repair or replace Licensed Software which does not meet Intellective’s warranty; or (B) terminate access to the Software Services or accept a return of Licensed Software and refund the fee paid in connection with the then-current Contract Term relating to such Software Services or Licensed Software.

Hazardous Activities.

Intellective Products are not intended for use, and Customer may not use or allow others to use any Intellective Product, in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Intellective Products could lead to personal injury or severe physical or property damage. Intellective will have no liability, and Customer is solely responsible, for any expense, loss or damage incurred as a result of such use.

Intellective’s Rights.

Customer acknowledges and agrees that Intellective and its licensors retain all right, title and interest in and to Intellective’s products, technology and intellectual property which were possessed, discovered or acquired by Intellective prior to or after the execution of the Agreement (including without limitation Intellective Products), and any improvements, modifications, advancements or derivatives thereof or thereto (including without limitation all Releases and Work Product), whether or not made in connection with any services hereunder and regardless of which Party made or contributed to such improvement, modification, advancement or derivative. There are no implied licenses under the Agreement and any rights not expressly granted to Customer hereunder are reserved by Intellective. Customer shall not contest Intellective’s ownership of Intellective Products or Work Product, nor shall Customer challenge the validity of Intellective’s rights to Intellective Products or Work Product.

Non-Exclusivity.

The rights granted under the Agreement are non-exclusive. Nothing in the Agreement shall be construed to prevent or restrict Intellective in any manner from using or granting access to others for the use of any Intellective Product or Work Product.

Access to Customer Facilities.

Intellective’s obligations are conditioned on Customer providing Intellective with any necessary access to Customer’s facilities and computer systems (including remote and on-premise access) and prompt responses to communications from Intellective. To the extent disclosed to Intellective in advance, Intellective will comply with and cause its personnel to comply with Customer’s reasonable security regulations, working hours and policies while working on Customer’s premises.

Subcontracting.

Intellective may delegate any of its obligations under the Agreement to third-party subcontractors, but will remain primarily responsible for the performance of all of its obligations set forth in the Agreement.

Confidentiality.

Confidential Information.

Confidential Information of the disclosing Party shall not be reproduced by the receiving Party in any form except as required to accomplish the intent of the Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each Party: (a) shall keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any Person other than its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. Confidential Information of either Party disclosed prior to execution of the Agreement shall be subject to the protections afforded hereunder.

Exceptions.

The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of the Agreement by the receiving Party; (c) at the time of disclosure, was known to the receiving Party free of restriction; or (d) the disclosing Party agrees in writing is free of such restrictions.

Confidentiality of the Agreement.

Except as otherwise provided herein, neither Party may disclose to any third party the existence or terms of the Agreement or the business relationship contemplated hereby. Notwithstanding the foregoing, either Party may disclose the terms of the Agreement to its professional advisors owing a duty of confidentiality to customers and prospective investors who are bound by obligations of confidentiality at least as restrictive as those set forth herein.

Data Security.

Each Party has implemented and maintains an information security program that incorporates administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Confidential Information provided to it by the other Party.

Customer Information.

Customer is the owner and controller of Customer Data. Customer acknowledges that, as the owner and controller of the Customer Data, it is the Customer’s responsibility to observe, comply with, and enforce all obligations in any laws or regulations applicable to the Customer Data, including without limitation any laws regarding the collection, processing, and storage of Customer Information. Further, Customer will be responsible for all archiving and backups of Customer Data. Customer acknowledges that only the data necessary for the provision of Intellective Products, Professional Services, or Support Services shall be shared with Intellective; Customer is solely responsible for any liability resulting from improperly sharing personal data that is unnecessary for the performance of Intellective Products. Except as expressly provided in the Agreement or another agreement signed by the parties, Customer shall not send to or share with Intellective any data, including logging information, that contains Sensitive Data. Without limiting the generality of the foregoing, Customer acknowledges that only certain limited Personal Data, such as the Personal Data of Customer’s business contacts, (the “Business Contact Data”), is necessary for the performance of Intellective Products, Support Services or Professional Services. Except for Business Contact Data, Customer shall only provide Personal Data to Intellective with the prior written consent of either Intellective’s Chief Executive Officer or Executive Vice President of Finance and Operations. Prior to any such authorized disclosure, the Parties shall agree in writing to the procedures surrounding the disclosure, including any encryption requirements and the mechanism of disclosure. Customer acknowledges that Intellective accesses certain data fields within the Software Services and agrees that it will not input or incorporate Personal Data or Sensitive Data into such fields. Customer will employ all physical, administrative and technical controls, screening and security procedures and other safeguards to protect against unauthorized access to Intellective Products and control the content and use of Customer Data. Further, Customer may not use Intellective Products to store or process Sensitive Data, and Intellective shall have no responsibility for Sensitive Data except as expressly agreed in an Order. Intellective shall have no liability or obligation to Customer for the protection or security of Customer Data (including without limitation Personal Data or Sensitive Data) except as expressly required by applicable law or set forth in the Agreement or another agreement executed by the parties. Intellective may use Customer Data for its legitimate business purposes, such as to provide and improve its services and to comply with legal requirements. Customer further acknowledges that Intellective may disclose Customer Data to third parties for the purposes of providing or billing Intellective Products or Professional Services, to assist with the administration of any third-party services, or as required by law; except for the aforementioned purposes or as expressly agreed by the Parties, any other disclosures of Customer Data by Intellective to third parties will be in the form of Usage Data.

Representations and Warranties.

Mutual Warranties.

Each Party represents to the other Party that such Party has the power and authority to enter into the Agreement and that such Party is not a party to any restrictions, agreements or understandings whatsoever which would prevent or make unlawful such Party’s acceptance of the terms set forth in the Agreement or such Party’s performance hereunder. Each Party further represents that such Party’s acceptance of the terms of the Agreement and the performance of such Party’s obligations hereunder do not and will not (with the passage of time) conflict with or constitute a breach or default of any contract, agreement or understanding, oral or written, to which such Party is a party or by which such Party is bound.

Professional Services.

Intellective warrants to Customer that Intellective for a period of thirty (30) days following delivery that the Professional Services will conform in all material respects with the specifications set forth in the applicable SOW. If Customer reports in writing a nonconformity with this warranty within such 30-day period, then Intellective shall, at no additional charge, use commercially reasonable efforts to re-perform the Professional Services to correct the nonconformity and, if it is unable to effect such cure within a commercially reasonable time period, refund the amounts previously paid by Customer for the defective Professional Services. The foregoing shall be Customer’s exclusive remedy and Intellective’s sole liability for breach of the warranty set forth in this Section.

Disclaimer.

EXCEPT FOR THE EXPRESS WARRANTIES MADE BY INTELLECTIVE IN THE AGREEMENT (INCLUDING WITHOUT LIMITATION THESE TERMS), INTELLECTIVE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY WARRANTY OF ANY KIND (STATUTORY, EXPRESS OR IMPLIED), INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, RESULTS OR EFFORTS. There is no warranty that any information, Intellective’s efforts, the Professional Services, the Support Services, Intellective Products, or the Documentation (in each case as applicable) will fulfill any of Customer’s particular purposes or needs. Intellective does not warrant that any Intellective Products, Documentation, Support Services or any Professional Services it provides are error free, will function without interruption, will meet any specific need that Customer has or that all defects will be corrected. Intellective disclaims all liability and indemnification obligations for any harm or damages caused by any third-party products or services, including without limitation hosting providers. Intellective does not make any representations or guarantees regarding uptime or availability of the Software Services except as may be expressly agreed in an Order. To the extent that a Party may not disclaim any warranty as a matter of law, the scope and duration of such warranty will be the minimum permitted under such law. Customer has relied on no warranties other than the express warranties in the Agreement.

Liability Restrictions.

Exclusion of Certain Damages.

To the maximum extent permitted by law, in no event shall either Party be liable to the other for any indirect, incidental, consequential, exemplary, special or reliance damages, including any loss of profit, income or data, arising from or relating to the Agreement, whether in contract, tort (including negligence and strict liability) or otherwise, even of such Party knew or should have known of the possibility of, or could reasonably have prevented, such damages.

Limitations of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, INTELLECTIVE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER ARISING FROM OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER IN THE PREVIOUS 12 MONTHS FOR THE PARTICULAR INTELLECTIVE PRODUCT OR PROFESSIONAL SERVICES GIVING RISE TO THE LIABILITY.

Limitation of Actions.

In no event may any cause of action related to the Agreement by brought more than 1 year after the occurrence of the event giving rise to liability.

Duty to Defend.

Mutual Obligations.

Subject to Customer’s compliance with Section 21.2, Intellective will defend any suit brought against Customer by a third party (not an Affiliate of Customer) based on an allegation that an Intellective Product or Work Product directly or indirectly infringes any Intellectual Property Right of a third party, and Intellective will pay those costs and damages finally awarded against Customer in such suit that are specifically attributable to such claims or those amounts payable by Customer under such third-party suit.

Subject to Intellective’s compliance with Section 21.2, Customer will defend any suit brought against Intellective by a third party (not an Affiliate of Intellective) based on an allegation that the any information, instruction, products or materials provided by Customer to Intellective for use in connection with the Agreement (including without limitation Customer Data) directly or indirectly infringes any Intellectual Property Rights of a third party, and Customer will pay those costs and damages finally awarded against Intellective in such suit that are specifically attributable to such claims or those amounts payable by Intellective under such third-party suit.

Procedures.

The obligations set forth in Section 21.1 are conditioned upon the indemnified Party notifying the indemnifying Party promptly in writing of any covered action, giving the indemnifying Party sole control over the defense thereof and any related settlement negotiations (provided, however, that no settlement shall be entered into with the prior written consent of the indemnified Party, not to be unreasonably withheld), and cooperating, and at the indemnifying Party’s request and expense, assisting in such defense. The indemnified Party may participate in the defense at its own expense.

Exclusions to Intellective’s Obligation.

Notwithstanding the foregoing, Intellective shall have no obligation to defend Customer with respect to any claim based upon or relating to: (a) failure to use any Intellective Product or Work Product in accordance with the Agreement or for purposes not intended by Intellective; (b) incorporation of any part of any Intellective Product or Work Product into any other product or process, or the use of any part of any Intellective Product or Work Product in conjunction with software, hardware or data not supplied or recommended by Intellective, if the infringement would not have occurred without such third-party software, hardware or data; (c) modification, addition, or change to any part of any Intellective Product or Work Product made by or on behalf of Customer or any other party if the infringement would not have occurred without such modification, addition or change; (d) third-party materials, software, documents, products, equipment or components, or Customer Data; or (e) use of any release of any Intellective Product or Work Product other than the most current release made available to Customer, if use of the most current release would have avoided the infringement.

Injunctions.

If any Intellective Product or Work Product becomes, or in Intellective’s opinion is likely to become, the subject of an infringement claim or injunction in the manner contemplated by Section 21.1 above, Intellective may, at its sole option and expense: (a) procure for Customer the right to continue using such Intellective Product or Work Product under the terms of the Agreement; (b) replace or modify such Intellective Product or Work Product so that it is non-infringing without substantial loss of functionality; or (c) terminate Customer’s rights and Intellective’s obligations hereunder with respect to such Intellective Product or Work Product and refund to Customer the fees paid by Customer in respect of such Intellective Product or Work Product, less a reasonable allowance for the period of time Customer has used the Intellective Product or Work Product.

Exclusive Remedy.

This Section 21 states Intellective’s entire liability and Customer’s sole and exclusive remedy for a third-party intellectual property right infringement claim arising under the Agreement.

Contract Term and Termination.

Contract Term.

Unless terminated early as provided herein, this Agreement shall be in force beginning on the Contract Start Date and ending on the Contract End Date, each as specified in the Order (“Initial Term”). Thereafter, the term of this agreement shall automatically renew for additional one (1) year terms (each a “Renewal Term”, unless either Party notifies the other of its intention not to renew at least 30 days before the expiration of the Initial Term or then-current Renewal Term. The Initial Term and any Renewal Term are sometimes referenced herein collectively as the “Contract Term.”

Termination for Cause.

If either Party materially breaches its obligations hereunder, the non-breaching Party may provide the breaching Party with a notice of default (“Notice of Default”), specifying in reasonable detail the nature of the alleged material breach. The breaching Party shall have a 30-day grace period after its receipt of the Notice of Default (“Grace Period”) to correct or cure any material breach specified therein. If the breach identified in the Notice of Default is corrected within the Grace Period, then the Agreement shall remain in full force and effect; otherwise, the particular portion of the Agreement that is in default shall terminate upon the conclusion of the Grace Period. For example, if a Party fails to cure a material breach under one SOW, only that SOW shall be terminated. All other existing SOWs, as well as all access to Software Services, license of Licensed Software and Support Services, shall not terminate.

Termination on Insolvency.

Notwithstanding any provision herein to the contrary, and to the fullest extent permitted by law, either Party may terminate the Agreement immediately by providing written notice to the other if the other Party: (a) ceases to carry on its business or business operations, except as a result of a permitted assignment of the Agreement; (b) makes an assignment for the benefit of creditors; (c) enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations; or (d) is or becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such Party and not dismissed within 60 days.

Effect of Termination.

Upon the termination or expiration of the Agreement the following terms shall apply: (a) all licenses or access to Intellective Products granted under the Agreement and all SOWs and Orders will immediately terminate; (b) Customer must pay to Intellective all fees and expenses accrued prior to the effective date of termination, which shall not be refunded or prorated unless termination is by Intellective for convenience; (c) if licenses or access to Intellective Products are terminated, Customer must return to Intellective or destroy all copies of Documentation; and (d) any provision of the Agreement that by its terms would survive shall survive the termination or expiration of the Agreement for any reason.

Customer Data upon Termination.

Within forty-five (45) days following termination or expiration of the Agreement or license or access to any Intellective Product for any reason, Intellective will permanently delete and remove Customer Data (if any) from Intellective Systems and will, upon Customer’s request, certify such deletion and removal to Customer in writing. If Intellective is not able to delete any portion of the Customer Data or Customer Confidential Information, it will remain subject to the confidentiality, privacy and data security terms of the Agreement. Upon termination, Customer may request within forty-five (45) days Intellective return Customer Data which Intellective shall perform under a separate services engagement.

Dispute Management.

Governing Law; Venue and Jurisdiction.

The Agreement shall be governed by the laws of the State of Delaware without regard for its choice of law provisions. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located within the Commonwealth of Kentucky for the purposes of any proceedings arising out of the Agreement.

Severability.

The provisions of the Agreement are independent of and severable from each other. No provision shall be affected or rendered unenforceable by virtue of the fact that any one of more of the other provisions hereof may be unenforceable in whole or in part, unless the absence of such unenforceable provisions materially alters the right or obligations of either Party hereto. The Parties will endeavor in good faith negotiations to replace any unenforceable provision with a valid provision.

Equitable Relief.

The Parties acknowledge and agree that it is impossible to measure in money the damages that will accrue to a Party hereto by reason of the other Party’s breach of the Agreement, and that such a breach will cause irreparable harm to the non-breaching Party. In addition to any other right or remedy available at law or in equity, the non-breaching Party may apply to any court of competent jurisdiction for specific performance or injunctive relief to enforce or prevent any breach without posting a bond or other security.

Attorneys’ Fees.

Intellective will be entitled to recover from Customer its reasonable legal fees and expenses incurred in connection with any action to collect fees or expenses due under the Agreement.

General.

Insurance.

Intellective shall procure and maintain during the term and thereafter, the following insurance (a) Workers Compensation as required by the applicable law of the state where the work is being performed, including Employer’s Liability with a limit of $1,000,000; (b) Commercial General Liability including products and completed operations coverage with a limit of $1,000,000 per occurrence and $2,000,000 annual aggregate; (c) Error and Omissions covering Intellective’s professional liability in a minimum amount of $5,000,000 per occurrence/annual aggregate; (d) Automobile Liability covering all owned, non-owned and hired vehicles with a limit of $1,000,000 per occurrence.

Customer shall be named as an additional insured on Intellective’s Commercial General Liability insurance policy. Upon request, Intellective shall provide a copy of its Certificate of Insurance evidencing all of the coverage requirements herein.

Notices.

All notices under the Agreement must be delivered in writing by courier, electronic facsimile, electronic mail, or by certified or registered mail (postage prepaid and return receipt requested) to the other Party at its address set forth on the first page above. Notice will be deemed effective upon the earlier of actual receipt by the intended recipient or upon delivery by courier; acknowledgement of receipt by electronic transmission or 5 days after deposit with the U.S. Postal Service.

Relationship of Parties.

The Parties hereto are independent contractors. Nothing in the Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the Parties. Neither Party (nor any agent or employee of that Party) is the representative of the other Party for any purpose and neither Party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.

No Third-Party Beneficiaries.

A Person who is not a Party to the Agreement will not be deemed a third-party beneficiary to the Agreement.

Assignment.

Neither the Agreement nor any rights or obligations hereunder may be assigned or delegated by Customer without the prior written consent of Intellective, which consent may not be unreasonably withheld. Without limiting the foregoing, Intellective may terminate the Agreement immediately upon a Change-in-Control (as defined below) of Customer. Subject to the foregoing, the Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns. For purposes of this paragraph, “Change-in-Control” shall mean, the occurrence of any of the following events: (a) a consolidation or merger of a Party with or into any other entity in which the holders of such Party’s outstanding shares immediately before such transaction do not, immediately after such transaction, retain stock representing a majority of the voting power of the surviving entity or entity that wholly owns, directly or indirectly, the surviving entity; (b) the sale, transfer or assignment of securities of a Party representing a majority of the voting power of all of its outstanding voting securities to an acquiring Party or group; or (c) the sale of all or substantially all of a Party’s assets.

Force Majeure.

Any delay in or failure of performance by either Party under the Agreement shall not be considered a breach of the Agreement and shall be excused to the extent caused by any occurrence beyond the reasonable control of such Party including, but not limited to fires, floods, epidemics, famines, earthquakes, hurricanes and other natural disasters or Acts of God; regulation or acts of any civilian or military authority or act of any self-regulatory authority; wars, terrorism, riots, civil unrest, sabotage, theft or, other criminal acts of third parties; failure of electronic or mechanical equipment; and fluctuations in or failures of electric power, heat, light, air conditioning or telecommunications and shortages of relied upon services or supplies.

Waiver and Modifications.

All waivers must be in writing. Any waiver or failure to enforce a provision of the Agreement on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion. The Agreement may only be amended by a written document signed by both Parties, except that these Terms may be amended by Intellective alone at its sole discretion.

Publicity.

Intellective may identify Customer as a customer in its marketing and promotional materials and may verbally disclose the fact that Customer is a customer in its discussions with potential customers.

Entire Agreement.

The Agreement constitutes the entire, final and exclusive agreement between the Parties regarding the subject matter hereof and supersedes all prior or contemporaneous, agreements, understandings and communications, whether written and oral. The Agreement prevails over any of Customer’s terms and conditions or other writings, regardless of whether or when Customer has submitted such materials. Fulfillment of Customer’s Order does not constitute acceptance of any of Customer’s terms, conditions or other writings, and does not serve to modify or amend the Agreement. In the event of a conflict within the Agreement, the documents shall govern in this order: (1) Order; (2) SOW; then (3) these Terms.